Employment contract with the chairman of the HOA: how to conclude and download a free sample form YurExpert Online

From the article you will learn:

As you know, the relationship between an employer and an employee is regulated by drawing up an employment contract, which stipulates the working conditions, rights and responsibilities assigned to each party. If the HOA (homeowners' association) acts as an employer, and the chairman as an employee, then they have the right to enter into an agreement. However, it is important to know whether it is possible not to conclude an employment contract with the chairman of the HOA or is it still necessary?

In this article we will examine typical questions regarding the execution of an agreement between the HOA and the chairman, however, each specific case may be unique.

Why is this document being compiled, and what is it?

The issue of the need to sign an employment contract with the head of the HOA must be approached from the point of view of the current legislation - the Labor and Housing Codes.

According to Article 1 of the Labor Code of the Russian Federation, labor legislation is designed to establish guarantees and rights of citizens, as well as to protect the interests of the employee and the employer. An employment contract is an agreement between the parties, which specifies the employee’s job functions, the amount and terms of payment, rights and obligations.

The Housing Code of the Russian Federation does not say anything about the need to conclude an agreement with the head of the partnership. A person is not appointed, but selected for a given position. He is elected by board members and apartment owners (how the election of the chairman takes place and the documentation of the procedure is described here). However, if the position, path and elective, presupposes the emergence of an employment relationship, an agreement must be concluded.

There are a number of reasons for this:

The document regulates the relations between the community of owners, residents and the chairman.
On its basis, the official has the right to receive wages and other guarantees specified in the conditions. Read about how the work of the chairman of the HOA is paid here.
If violations of laws and agreed upon obligations are noticed on the part of the head of the board or the HOA, then the agreement will help restore justice in court or other authorities.
A formal agreement outlines the rights and responsibilities of the chairman. This allows you to control its activities.
The document prescribes the official functions of the chairman, which does not give him the opportunity to abuse his position.

Is it necessary to enter into an agreement with the manager?

The Housing Code does not directly indicate the obligation of the HOA to enter into an agreement with the manager. But in the Labor Code Art. 273 states the following: if the management of the apartment building is carried out by the HOA, then a contract with the chairman will be required. If a third party has been hired to perform this function, an agreement is not required.

We must not forget that the activities of the head of the partnership are also regulated by the charter of the HOA. In this regard, the question arises: why do we need an agreement if there is a charter?

Firstly, the charter designates only the rights and duties of the official, without describing specific functions.
Secondly, it does not guarantee the manager remuneration for his work.
Thirdly, this document will not be effective in court when resolving controversial issues with the owners of an apartment building.

An employment contract is a guarantee and a kind of safety net for all interested parties - members of the HOA, the board, the owners and the chairman himself.

An HOA is a home management structure organized by the owners . In order for it to function successfully, concluding agreements with everyone who works in it is simply necessary.

Registration of reward

How to arrange it correctly? Payment is made in stages:

To begin with, the manager must perform any work on the management or improvement of the house, and draw up a report of the work performed . This act should reflect how much time was spent on implementation, what results were achieved, a report on the expenditure of funds, as well as its direct role.
Next, the act is presented to the board members for consideration .

Also, if the board, for some reason, cannot meet, this act is provided by the owner of the property, who meet in the form of a general building meeting.

Having studied the certificate of work done, in accordance with the charter, the percentage of money spent on improvement is calculated , in which payment will be measured.
The board member or meeting participants must agree with the amount received. Otherwise, the results of the work completion report will be revised.
If consent is received, then a decision is drawn up - a protocol in which the head of the board is allowed to withdraw a certain amount of money from the current account of the partnership as payment for labor. It is with this piece of paper that the manager must come either to the bank or to the regional operator (depending on where your partnership account is located) and receive the money.

What could be the consequences if it is absent?

What might happen if there is no formal written agreement with the head of the board?

A person working without official employment will not be able to receive wage guarantees and other social guarantees provided for by the Labor Code of the Russian Federation. An oral agreement on the amount and regularity of payment between the employee and the employer has no legal force. Therefore, if controversial issues arise, the official will not be able to receive the money due to him for his work, even through the court.
The partnership will not be able to influence the chairman and control his activities unless a contract is concluded with him. The head of the board may not perform his duties and not show up for work. The owners will not be able to do anything about this, since they did not sign any written official documents with him.
The chairman bears financial responsibility, since all financial reports and service agreements pass through him. Without an employment agreement, he can abuse his power and waste the HOA's funds, and it will be quite difficult to bring him to court.

The conclusion of an employment contract protects both the head of the board and the owners of the apartment building. Its presence establishes relations with the HOA and helps resolve controversial issues. To avoid possible negative consequences, it is advisable to conclude this document so that labor relations are carried out within the framework of the law.

conclusions

Thus, remunerations paid to members and chairmen of the board of HOAs under civil contracts for the performance of work and provision of services are subject to insurance contributions for compulsory pension and compulsory medical insurance and are not subject to insurance contributions for compulsory social insurance in case of temporary disability and in connection with motherhood (relevant if the relationship is not actually an employment relationship and cannot be recognized as such. Read our article about concluding an employment contract and recognizing the relationship as an employment relationship).

In the case of concluding an employment contract, or the existence of actually established labor relations, remuneration paid to members and chairmen of the board of the HOA, remuneration is subject to mandatory insurance contributions for compulsory pension and compulsory health insurance and compulsory social insurance in case of temporary disability and in connection with maternity.

As we see, the types of insurance premiums differ depending on the presence of labor or civil law relations. Personal income tax is payable in any case of receipt of income. At the same time, if payments are made by a management organization, HOA, housing cooperative, then it must withhold the amount of insurance premiums and personal income tax and pay them to the appropriate budget.

Letter of the Ministry of Finance of Russia dated 04/09/2018 No. 03-15-05/23294 > > >

Appeal ruling of the Moscow City Court dated September 20, 2017 in case No. 33-35243/2017 > > >

Appeal ruling of the Sverdlovsk Regional Court dated 09/02/2014 in case No. 33-11033/2014 > > >

Appeal ruling of the St. Petersburg City Court dated November 17, 2016 in case No. 33-23794/2016 > > >

Letter of the OPFRF for St. Petersburg and the Leningrad region dated August 23, 2018 No. 19-02/29988 > > >

Author: Otrutskaya T.V.

taxes 34homeowners' association 67

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Structure and content

The agreement consists of several points:

Date of signing.
Address and details of the employer (in this case it is a partnership).
Full name, position and details of the person being hired (in this case, this is the head of the board of the partnership).
Deadline for signing the document.
Conditions and duties of the chairman.
Responsibilities of the HOA.
Salary (amount, regularity of payment).
Operating mode.
Information about vacation and social guarantees.
Conditions under which a document can be terminated or adjusted.
Signatures of the parties.

Taxation and insurance premiums

What taxes are subject to?

The remuneration is taxed at the rate of personal income tax, that is, thirteen percent.

The manager can either send these funds to the tax authority himself or ask them to immediately withdraw the tax deduction from the regional operator or credit organization.

Do I need to pay insurance premiums and who should pay?

The manager is obliged to pay insurance contributions, but not from each payment, but once a year - this is necessary so that appropriate contributions are made to the insurance fund and in the future he does not have problems with calculating pensions.

Thus, we can say that the insurance premium is a one-time phenomenon . This contribution is paid in a set percentage, which is required by the pension fund.

Now let's talk about who exactly should deduct interest - the manager from the amount of his remuneration or the partnership; in fact, this question cannot be answered in monosyllables.

Since, according to the general rules, it is the charter that stipulates the obligation of either the homeowners association or the partnership to make such contributions.

read the charter again and find out how these issues are regulated in this act.

Drawing up and coordination

The document is drawn up by a staff member or secretary. The parties to the agreement - the chairman and members of the board - can participate in its execution . Everyone can make their own amendments until it is finalized and signed.

REFERENCE: The document requires registration in the housing office book. It must include: the date of the agreement, its number and information about the parties to the agreement.

In order to correctly draw up an employment contract and not miss important details, you will need approval from a lawyer specializing in labor law.

Concept

The board of the association is financed by residents, and the amount of monthly cash injections is determined by the staffing table.

If the general meeting decided to have the position of chairman on staff, then two parties arise: on the one hand, the HOA as an employer, on the other, the employee it hires, and the presence of these parties presupposes the ensuing contractual relations (Article 17 of the Labor Code of the Russian Federation).

It does not matter that he is also a property owner in the building served by the partnership. An employment contract (hereinafter referred to as TD) is a document that regulates the relationship between the parties and also specifies the functions of this position.

Is such a document necessary? You can perform your duties without signing papers. His absence in the presence of a full-time position will be a violation of the law.

In addition, the performance of official duty is associated with the signing of serious contracts with service providers, contractors, as well as accounting documents.

Access to considerable material assets in this position is completely legal, so the presence of a TD with a measure of responsibility of the parties, including the chairman of the board, prescribed in it, is an additional deterrent. These are the reasons why an HOA agreement with the chairman is absolutely necessary.

Read about the procedure for electing and appointing the chairman and members of the HOA board in our article.

Validity

Since the head of the partnership is elected for a term of up to 2 years , the validity of the employment contract cannot exceed this period. After two years, the same person can be elected to office again. In this case, the agreement is not renewed, but drawn up anew.

The agreement is drawn up in two copies. One is kept by the chairman during the entire period of validity, the other is in the HOA office. Expired contracts are transferred to the archives of the partnership, where they are stored for 5 years.

Do I need an employment contract with the chairman of the HOA? Sample document