Who can be a member of the housing cooperative and what are the rights of a person who is part of this board, how is the admission and entry procedure, and how to draw up a power of attorney?

Definition

Housing cooperative is an association of citizens, necessarily voluntary, or legal entities who are members for the purpose of building housing, as well as managing apartment buildings.

Modern legislation establishes clear rules and boundaries for the operation of such a structure. Today housing cooperatives are building social housing, so-called “teachers’ houses,” houses for employees of internal affairs bodies, and more. All members of the cooperative are required to participate financially in the construction of the building, reconstruction and maintenance of the apartment building (apartment building). Who can be a member of such a structure? Citizens over 16 years of age and separately registered legal entities can join the cooperative; the last ones are the developers.

We talked in more detail about what a housing cooperative is and how the organization works here, and how the organization differs from other governing bodies can be found here.

Differences between housing cooperatives and other forms of management

When choosing one or another management method, it is necessary to take into account specific conditions: the number of apartments in the building, the discipline and solvency of residents, the presence of licensed management companies on the market, etc.
The forms of management of an apartment building are legally defined :

independent management of apartment owners - agreements with public utilities in the sector are concluded by each apartment owner directly, they personally defend their interests and protect their rights;
management with the involvement of management companies - apartment owners enter into an agreement with a management company that has the appropriate license, acts in their interests, which is authorized to enter into agreements with utility organizations, and is obliged to report to residents for the services provided;
management of a homeowners association or housing cooperative - a board is selected from among the owners to manage the house, acting on behalf of and in the interests of the residents.

Housing cooperatives and homeowners' associations are combined into one paragraph by the Housing Code, but there are significant differences between them:

Housing cooperative is organized for the purpose of construction and further management of the house. An HOA is formed after the house is built and the residential premises are owned.
A housing cooperative must include at least 5 founding members, but not more than the number of apartments. The HOA must include at least 50% of the owners.
Income from the business of housing cooperatives belongs to the shareholders. The income of the HOA belongs to the partnership.

The functions of control over the financial and economic activities of housing cooperatives are carried out by an audit commission , elected for a period not exceeding three years (Article 120 of the Housing Code of the Russian Federation).

Housing Code of the Russian Federation, Article 120. Audit commission (auditor) of a housing cooperative

To exercise control over the financial and economic activities of a housing cooperative, the general meeting of members of the cooperative (conference) elects an audit commission (auditor) of the housing cooperative for a period of no more than three years. The number of members of the audit commission of a housing cooperative is determined by the charter of the cooperative. Members of the audit commission cannot simultaneously be members of the board of a housing cooperative, or hold other positions in the management bodies of a housing cooperative.
The audit commission of the housing cooperative elects the chairman of the audit commission from among its members.
The audit commission (auditor) of a housing cooperative: mandatory conducts scheduled audits of the financial and economic activities of the housing cooperative at least once a year;
presents to the general meeting of members of the cooperative (conference) a conclusion on the budget of the housing cooperative, the annual report and the amount of mandatory payments and contributions;
reports to the general meeting of cooperative members (conference) on its activities.

The audit commission (auditor) of a housing cooperative at any time has the right to audit the financial and economic activities of the cooperative and have access to all documentation relating to the activities of the cooperative.

The work procedure of the audit commission (auditor) of a housing cooperative is determined by the charter of the cooperative and other documents of the cooperative.

The organization and holding of general meetings of the HOA, the terms of reference of its board are determined by Chapter 14 of the Housing Code. A similar procedure is not provided for housing cooperatives.

It is determined by Chapter 11 of the Housing Code that the composition and competence of the management and inspection bodies, the rules for making decisions are fixed by the charter of the cooperative . The provisions of the charter must not contradict the law.

In a cooperative, decisions are made at meetings of the general meeting of shareholders by open voting (Article 117 of the Housing Code), other options are not provided. The meeting of the HOA can be held in any form, including in absentia (Articles 146 and 47 of the Housing Code of the Russian Federation).

Surely you will be interested in the accounting department of housing cooperatives for mortgages. On our website you can also find information about:

property rights in housing cooperatives;
board;
chairman;
payment of shares;
agreement;
and differences between preschool educational institutions.

Legislative information

What law regulates the activities of housing cooperatives? This is primarily Article 5 of the Federal Law “On Promoting the Development of Housing Construction”. There are enough legal acts that distinguish between concepts and give clear definitions to the structure. This means that the code determines not only the legal status of housing and housing-construction cooperatives, but also the features of their civil legal status.

Attention ! The very regulation of the activities of housing cooperatives is ensured by Article 116 of the Civil Code of the Russian Federation “Consumer cooperative”.

The laws contain important definitions that relate to urban planning activities. Thus, a housing cooperative can legally act as a developer after receiving the necessary permission. By the way, according to the restriction, one cooperative cannot build more than one house at a time.

Types of documentation

Developers offer different forms of agreements. The price of real estate, the level of possible risks and losses depend on the type (form).

The most reliable forms are considered to be DDU; according to the law, the agreement is concluded by the developer and the shareholder, as well as the housing cooperative. Both types are not subject to state registration, so you can expect anything from unscrupulous developers.

You can also purchase a new building by:

drawing up a loan agreement;
payment by bills;
a pre-drafted purchase and sale agreement;
equity participation agreements;
agreements for the assignment of consumer rights.

All species are not registered, which means they are not protected by the state . Citizens are not prohibited from entering into transactions or choosing any type of contract, which is completely legal, but the risks become much higher.

What are human rights?

There are basic rights that are reserved for members of such cooperatives:

to participate in a meeting of potential residents;
to receive housing in a cooperative house;
on share;
it is allowed to move temporary residents into the apartment and rent it out;
ownership comes after full payment of the share contribution.

Of course, the basic right of any member of a cooperative is the opportunity to obtain home ownership. This right is granted to him after voting at the general meeting. Previously, people could only move in using special orders, but today market relations have eliminated this concept.

Any member of the cooperative who regularly pays dues receives an apartment. From the moment the share contribution is paid in full, the person receives full access to housing. But there are also clauses that allow a member of the cooperative to move into the house without full payment. This should be regulated by the charter, which the housing cooperative will adopt.

What is a share contribution?

These are funds that are contributed towards the cost of housing, which, after construction, a member of the housing cooperative receives ownership of. Until a person fails to pay this fee, the housing is owned by the cooperative.

Let us note that the Housing Code has not established a procedure for making a share contribution by members of the cooperative. This issue is resolved on the basis of the charter - an internal document of the cooperative.

Housing cooperative agreement: pros and cons

Like any method of managing apartment buildings, housing cooperatives have their own disadvantages and advantages. Advantages of housing cooperatives :

When constructing houses through housing cooperatives and further managing them, significant cost savings are possible .
The cooperative meeting independently determines the need for repairs and the amount of funds for its implementation .
It is possible to control expenses . When the house is managed directly by the owners of the apartments, who do not have the status of a legal entity, their economic activities are limited, and this makes management difficult; When managed through a private management company, residents do not have the opportunity to control its activities.
There is the possibility of stage-by-stage financing of construction ; installments of the share are allowed not only during construction, but also after the completion of the house.
For cooperatives, a notification procedure has been introduced for the settlement of temporary residents , which is important from the point of view of residential safety, given the high crime rate.
To move temporary residents into a cooperative house, a cooperative member must have the consent of his family members and notify the management authorities in writing.
An open vote for making decisions used by the meeting of the cooperative house eliminates the possibility of abuse.

Disadvantages of housing cooperatives:

If there are less than five founders of a cooperative, then it cannot be organized .
That is, this form of management is suitable for houses with more than five apartments. If the number of participants in an existing cooperative organization decreases, it will be reorganized or liquidated.
The board is elected directly from its members , usually the most proactive and active, but they may be incompetent in the field of management. The costs of their training are additional expenses for shareholders.
Shareholders are required to pay monthly contributions . Despite the mandatory reporting on the expenditure of general funds, the possibility of abuse remains on the part of the governing bodies.

Responsibilities

There is also a separate category of responsibilities:

Making share contributions on time.
Other obligations that are provided for by the charter.
Compliance and strict adherence to the rules of the charter, as well as housing legislation.

In accordance with Part 4 of Article 130 of the Housing Code of the Russian Federation, a member of the housing cooperative in the event of gross failure to fulfill his duties may be expelled from the cooperative by decision of the general meeting. Such a person is subject to eviction from the residential premises provided to him on the basis of Article 133 of the Housing Code of the Russian Federation.

What can a non-member of the cooperative claim? A citizen who is not a member of the housing cooperative, applying for an apartment in a building under construction, does not have the rights and responsibilities of someone who is a member of the board and is a member of the cooperative.

Important! If a relative of a housing cooperative member tries to obtain an apartment through the court without having the consent of the owner, he will be refused.

Although family members of the shareholder do not acquire independent shareholder rights, they can receive the apartment after it becomes the property of their relative, but only with his consent. In the event of the death of a shareholder, family members of the deceased retain the right to use the residential premises, subject to one of them becoming a member of the housing cooperative.

Housing cooperatives and public housing cooperatives: about the housing construction type of corporate curtain

This autumn has been rich in cases of the Supreme Court of the Russian Federation getting involved in the problem of determining the place of housing construction cooperatives in the system of relations regarding shared construction. Moreover, this connection took place in the person of two boards at once - administrative and civil.

On September 2, the Administrative Board adopted determination No. 44-KA19-6 on one of the disputes related to the division of the problematic inheritance left to the shareholders of the Perm housing cooperative Triumph, which was sensational in local circles. Quarter 2".

The shareholder challenged the decision of the regional government to refuse to include him in the register of affected shareholders on the grounds that a member of the housing cooperative is not a shareholder under the law “On participation in shared construction...”. SKAD of the Supreme Court did not support this point of view, following the Reviews of judicial practice dated December 4, 2013 and July 19, 2017, indicating that the share accumulation agreement is not in form, but in essence, an agreement for participation in shared construction, and therefore the shareholder of the cooperative is equal to a shareholder and enjoys the rights that are established for shareholders by the law on participation in shared construction. Including the right to be included in the register of affected shareholders.

A few days ago, the administrator of this resource, Gulnara Ismagilova, kindly drew my attention to the fact that the Judicial Collegium for Civil Cases entered the fight for the rights of shareholders of housing cooperatives in connection with their participation in shared construction, revealing to the world a ruling dated October 15 of this year. No. 5-КГ19-186.

In this case, everything was much more gratifying for the shareholder. He received housing, but its actual area turned out to be 5 square meters less than the designed area. Shortage! In anticipation of this shortfall, the cooperative refused to voluntarily return the money to the shareholder.

The shareholder brought his claim against the cooperative, which is completely logical, since it was with him that he entered into a share accumulation agreement. But neither the court of first instance nor the Moscow city appeal supported this logic[1].

Their position was as follows.

A review of judicial practice on disputes in the field of participation in shared-equity construction of housing dated December 4, 2013 indicates that relations between shareholders and housing cooperatives are not regulated by the provisions of the law “On participation in shared-equity construction...”. This means that the shareholder in relation to the cooperative is not a shareholder, and the cooperative in relation to the shareholder is not a developer according to the norms of this law, although he is a developer in the broad sense established by the Town Planning Code of the Russian Federation.

This means that if the law “On participation in shared construction...” says that money for housing construction can be raised by housing construction cooperatives, but the provisions of this law do not apply to relations between shareholders and housing cooperatives, then the shareholder’s demand, based on the provisions of the law, “ About participation in shared construction..." must be presented to the person for whom these norms are mandatory, i.e. a real developer. After all, it was he, and not the housing cooperative, who built the house with an apartment 5 square meters less than he promised, and must bear responsibility for this in accordance with the said law.

The accumulating agreement presented in the case materials is completely “bare” in the sense that it actually contains only the condition “you give me money, I give you an apartment that will be built by developer N.” There are no provisions from the field of corporate law, as befits any decent housing cooperative, in the agreement. In general, in terms of its content, this is not an agreement on joining a housing cooperative, but a contract for the purchase and sale of a future apartment, for the sake of order, called a share accumulation agreement.

The court especially noted the fact that the parties to the accumulation agreement in no way connected its conclusion with the establishment of any corporate relations between themselves, and for complete clarity of its approach indicated that in the case under consideration the housing cooperative is nothing more than a technical payer or transferee. agent between the shareholder and the developer according to the scheme “transferred the money - transferred the apartment.”

Thus, the housing cooperative is an improper defendant, and the shareholder must turn his claim regarding the defects of the apartment against the real developer, the court of first instance decided and was confirmed by the Moscow city appeal. The absence of any contractual ties between the shareholder and the developer did not bother the courts at all.

Beyond the words of judicial acts, there remained a latent thought: you constantly demand that the courts look into the essence of relations, and not approach them formally? Please. Everything is as you want. In this case, the housing cooperative is a simple shell, a cooperative SPV through which the developer collected money for construction. By signing a share accumulation agreement, in which not a single word was mentioned on any corporate topic, the shareholder demonstrated that he was not at all interested in participating in the housing cooperative. He had no will to participate in this. He only needed an apartment of the size he paid for. Who should be responsible for the non-compliance of this apartment with the design documentation, and to whom should the requirement based on the norms of the law “On participation in shared-equity construction...” be addressed? Obviously, not to the cooperative, which itself did not build anything. Here is the breakthrough of the corporate curtain called housing cooperatives. Just like in Europe and America.

The cassation appeal of the shareholder was accepted for consideration by the SKGD of the Supreme Court.

She indicated that the housing cooperative is a consumer corporation, relations in which are regulated by the norms of the Housing Code of the Russian Federation, and not by the law “On participation in shared construction...”, which directly follows from the same Review of Judicial Practice dated December 4, 2013.

The shareholder is not a participant in shared construction and is not in any relationship with the developer, and therefore cannot have any claims against the developer. The accumulation agreement, taking into account which the lower courts made opposite conclusions, was not found by the Judicial Panel at all in the case materials (?!).

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Thus, we have two rulings of the Supreme Court of the Russian Federation adopted with a difference of one month on the same subject and with references to the same rules of law and conclusions previously made in the Review of Judicial Practice.

In one case, the impossibility of extending the provisions of the law “On Participation in Shared Construction...” to the relationship between the housing cooperative and the shareholder did not prevent the Supreme Court from recognizing the shareholder as a shareholder in the sense of this law and obliging the public body to include the shareholder in the register of affected shareholders.

At the same time, the Supreme Court suggested that lower courts, when considering similar disputes, move away from formalism and take a closer look at the content of the relations that have arisen between the housing cooperative and the shareholder to collect money for housing construction in order to see in them the relations regulated by the law “On participation in shared construction...” .

In another case, the Supreme Court took a strictly opposite position, pointing out the inadmissibility of such a free approach to the law on participation in shared construction to the detriment of the corporate norms of the Housing Code.

But in this last case, the situation was greatly complicated by the fact that the shareholder was suing the cooperative itself under an agreement, in the execution of which the actual developer did not take any part, and this most important circumstance gives reason to say that there is no contradiction between both definitions of the Supreme Court in fact no matter.

When a shareholder of a cooperative defends his rights to third parties, but not to the housing cooperative and certainly not to the developer, these rights can be determined from the position of the rights of shareholders under agreements for participation in shared construction. On what basis? The fact is that the shareholder, who is not a “real shareholder,” nevertheless participates in relations regarding raising funds for housing construction, as the law directly states.

The Housing Code regulates internal corporate relations in housing cooperatives, but says nothing about regulating relations between shareholders as subjects of raising funds to create housing in the future on a “share” basis and third parties, including public bodies. This means, and this is quite logical, the regulation of such relations should, by virtue of the analogy of the law, be carried out in accordance with the norms of the law “On participation in shared construction...”, in the text of which housing construction cooperatives, by the way, are mentioned repeatedly.

From this point of view, the Administrative Collegium of the Supreme Court of the Russian Federation is right in its assertion that this law is not a law only and exclusively about agreements for participation in shared construction, but is, in a broad sense, a law on raising funds from citizens to finance the construction of housing with the subsequent transfer of apartments to these citizens . Regardless of how such citizens are called - participants in shared construction (shareholders) or shareholders of housing cooperatives.

The situation looks completely different when it comes to a dispute between a shareholder and the cooperative itself.

Bearing in mind the existence of an agreement between the housing cooperative and the shareholder, whatever you call it, for accumulating shares or joining a cooperative, the housing cooperative, even being a purely paper layer between the shareholder and the developer, cannot oppose the shareholder’s demand with the objection that the shareholder must address all his claims to the developer , since these requirements are based on the norms of the law “On participation in shared construction...”, and the cooperative is not a developer according to these norms.

Why? Because the shareholder’s requirements, even regarding the quality of the apartment transferred to him by the cooperative or its footage, are in fact not at all based on the norms of this law, but are only similar to the requirements that shareholders can declare to developers by virtue of the law and agreements for participation in shared construction.

The presence of such an analogy, no matter how complete, does not transform a share accumulation agreement into an agreement for participation in shared construction, and unexpectedly does not make the developer responsible to a shareholder of the cooperative that is completely unknown to him.

Therefore, the Judicial Collegium for Civil Cases is also absolutely right in its determination.

True, there is something that is very confusing in all this apparently correct and truly law-based logic. Namely, the figure of the cooperative as a ploy for collecting money from citizens, the presence of a real beneficiary of this process in the person of the developer and the comrades standing behind him, and the fact that the shareholder makes his demand not at all in order to simply make a scandal in court, but in order to achieve real effect, expressed in the return of the money paid by him.

Taking into account such reservations, the position implied in the decision of the court of first instance in the case of shortage of square footage certainly deserves attention, according to which a claim for defects in housing, filed by a shareholder against a cooperative, the existence of which has no other purpose or meaning other than the transfer of funds from citizens to the developer, can break through the corporate curtain in the form of such a housing cooperative in order to reach the real violator of the promise to build quality housing within the stipulated period. Moreover, such a violator, who, unlike a laying cooperative, has a direct and immediate interest in receiving money from shareholders, including keeping a significant part of it as profit.

After all, the demand of a dissatisfied shareholder to a shell cooperative housing cooperative, devoid of any hint of real corporate existence and active activity, is actually turned against other shareholders, since there are no other funds other than their contributions in the current account of the cooperative, against which a writ of execution will be issued, and there will not be Maybe.

Gradually, a situation arises of the property liability of some shareholders of the housing cooperative to other shareholders for the outrages of the developer, who is the obvious beneficiary of the entire scheme for raising funds from citizens through the housing cooperative system.

All risks of the developer’s failure to perform are transferred not to the cooperative, but to its shareholders.

Moreover, the presence of a housing construction project also means the creation on the developer’s side of intangible benefits in the form of obvious organizational amenities.

How much easier is the life of a developer when he is legally opposed not by a couple of hundred very real embittered citizens who gave their money, often credit, for the promised housing, but by some pocket housing cooperative.

It is quite likely that it was precisely this clearly unjust “corporate-cooperative” curtain that the Kuntsevsky District Court wanted to pierce with its decision, and in this sense, it was its decision, and not the decision of the Supreme Court, that could create, pardon the pun, breakthrough judicial practice in housing construction with participation of housing cooperatives existing only on paper.

It's not meant to be.

The Civil Division of the Supreme Court did not at all touch upon the topic of the acquisition by the cheating developer of all the benefits from the implementation of such a scheme for attracting funds from citizens. That is, she showed that same formalism, even, rather, extreme legalism and literalism, which she calls on lower courts to get rid of.

“The situation will be saved by the cooperative’s recourse claim against the developer,” someone might say. But to file such a claim, you must at least have the desire to file it. Will a pocket housing cooperative show such a desire, will it selflessly and fiercely fight the developer that controls it? Not sure.

In addition, it is far from a fact that in the described situation the cooperative generally has the right to file a recourse claim against the developer, rather than an independent one. Our Civil Code does not know the general rule on recourse, but considers recourse obligations limited to an exhaustive list of specific cases of their occurrence according to the principle of numerus clausus. In addition, formally, the responsibility of the housing cooperative to the shareholder is not derived from the responsibility of the developer to the cooperative. But that's a completely different story.

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Recognition of a share accumulation agreement as an agreement of participation in shared construction, i.e. agreement for the purchase and sale of future property, breaks the maxim established in the Housing Code and dating back to the Law of the USSR “On Property” that the right of ownership of residential premises arises from a member of the cooperative who has paid the share contribution in full, by force of law, and not by force transfer of ownership of housing from the cooperative to its participant. To acquire the right of ownership of housing, a cooperative member is not required to perform any actions to transfer housing, and a cooperative member is not required to accept housing. No agreement is needed, neither a quasi-DDU, nor a purchase and sale agreement for future real estate.

Moreover, the agreement of share accumulation or the agreement of participation in a housing-construction cooperative is completely unnecessary and devoid of any legal and practical meaning, since neither the admission of a new person as a member of the cooperative, nor the payment of an entrance or share fee by him require as their basis the conclusion of any agreement with the cooperative, and the conditions for such acceptance or such payment, regardless of the conclusion of any agreement, must be determined by the charter, and equally for all participants of the cooperative.

The only thing that can justify the conclusion of a pension accumulation agreement is the need to demonstrate it to tax officials, who sincerely believe that the basis for the payment must necessarily be either an agreement, or a judicial act, or a decision of a public body. It is impossible to explain to the tax inspector the miracle that it is possible to pay contributions to a cooperative even in the absence of any agreement with the cooperative. He will call an ambulance for psychiatric help. Both to yourself and to your interlocutor.

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[1] Decision of the Kuntsevsky District Court of Moscow dated December 12, 2018 in case No. 2-5634/18.

Appeal ruling of the Moscow City Court in case No. 33-15498/2019.

Procedure for joining the board

The procedure is very simple. To join a housing-construction cooperative, you need to write an application for admission, which will be considered at a general meeting of members of the cooperative. The review period is a month. After this the answer is given. Recognition as a member of the housing cooperative will be after an individual or legal entity pays the first entrance fee, only then the candidacy will be accepted at the general founding meeting.

Joining a cooperative is a fairly simple procedure. Let's look at a step-by-step example of how this happens. You are a teacher who learned from your colleagues that a housing cooperative has been created in your city, which is going to build a house for teachers. The housing cooperative is called “Teacher’s”.

Contact the organization's management directly or the ministry of construction in your region, where they will help you find contacts. Sometimes contacts are available on a special housing and communal services portal.
Write a statement. Below is the form.

To the Chairman of the Uchitelsky housing cooperative from his full name.

Statement

I ask you to accept me as a member of the Uchitelsky housing construction cooperative. I undertake to comply with the requirements of the Charter of the cooperative and to comply with all decisions of the governing bodies related to its activities, to make contributions provided for by the charter and internal documents of the organization.

I provide the following information about myself:

Date of Birth.
Registration address.
Residence address.
Telephone.
List of family members.
Passport details: series, number, where, by whom and when issued.
Title document for the apartment - series, number, by whom and when issued (attach a copy).

I undertake to promptly report changes in the specified data.

I am familiar with the Charter and internal regulatory documents of the cooperative.

Last name, date, signature.

Note that usually an application, according to the charter of the cooperative, can be obtained from the management of the housing cooperative.

For more information on completing and submitting an application for membership and other types of applications, read this article.

Checking housing cooperatives

Of course, you will not be able to completely protect yourself from delays in the delivery of your house, from an increase in the cost of the apartment and other problems. But it’s worth trying to check not only the contract with the housing cooperative itself, but the organization

Check with the chairman to see if the company is in bankruptcy. Data can also be viewed in local media
Find out how many more houses the chairman of the housing cooperative manages. If several projects are launched at once in different parts of the city, this is a bad sign. It often happens that the chairman begins the construction of one object, collects money and spends it. Then he needs funds for completion - he opens another facility, collects money from the second and spends on the first - and so on until the number of facilities becomes too large and his activities come to the attention of law enforcement agencies
You need to know how decisions are made to increase the cost per square meter - check the organization’s charter
You need to get to the construction site, find a stand with information about construction - it should contain information about the general contractors. They also need to be “monitored” by the media.
Find out from the chairman whether the land plot under the future house is owned. Ask to review the title documents.

How to pay the entry fee?

In accordance with the Charter, the following types of contributions are established in the housing cooperative:

entrance fees;
membership fee;
share contributions;
targeted contributions;
additional fees.

All amounts are specified in the Charter; usually the amount must be paid by a certain date by transferring the money to an account assigned to the housing cooperative. That is, no transfers of funds from hand to hand - at least, that’s what is written in most charters.

Risks when paying - if you change your mind and decide to leave the members of the housing cooperative, then the money will not be returned to you, since you voluntarily contributed it to the general cash register and took someone else’s place. Therefore, by making contributions, we accept these risk conditions.

Membership fees are required. They are paid every month and range from five thousand rubles. The deadline for making payments to the settlement account of the housing cooperative for payment of membership fees is the last day of the current month. At the request of a member of the housing cooperative, the membership fee can be paid ahead of schedule.

Which is better for an apartment buyer: DDU or housing cooperative

It is impossible to unequivocally answer the question of which agreement the buyer should prefer (DDU or housing cooperative). Each real estate purchase situation must be considered individually. At the same time, a potential buyer should understand the advantages and disadvantages of different forms of interaction with developers.

Advantages and disadvantages of DDU

Purchasing an apartment under the DDU has its undeniable advantages, including:

The developer must have his own permitting documentation and project declaration.
The contract contains a fixed price for the apartment , which cannot be revised by the developer unilaterally. Developers must independently solve the problem of increasing the cost of building materials without involving shareholders.
The house will be built exactly in the form in which it was laid out in the design documentation . It cannot unexpectedly and unplannedly increase by several floors; extensions and other buildings will not appear in it.
The contract guarantees a transparent scheme for its termination and compensation for losses incurred.
There are clear developer warranty periods for different types of work.

But although the legislation protects the rights of shareholders quite well, this agreement is not without certain shortcomings:

The cost of apartments under DDU is usually higher than under housing cooperatives . And due to the mandatory deduction of part of the cost of apartments to a special compensation fund, apartments under DDU have become even more expensive. According to current legislation, builders must contribute 1-1.5% of the cost of apartments to the compensation fund.
The share participation agreement involves a long stage of their registration.
The agreement contains a limited list of grounds for termination.

Advantages and disadvantages of a housing cooperative agreement

Among the advantages of purchasing an apartment under a housing cooperative agreement, one can note the possibility of receiving a significant discount on the apartment and its lower cost than under the DDU. This is due to the fact that cooperatives are not required to pay additional fees.

Another advantage of housing cooperatives is that shareholders can directly influence the progress of construction. The fact is that all the most important issues are resolved in housing cooperatives at meetings of participants.

Among the negative aspects of purchasing an apartment under a housing cooperative agreement are:

The shareholder will have to pay an additional fee for joining the cooperative : usually 1-3% of the value of the property.
There is a danger of double sales.
In fact, the shareholder is less protected by law than the buyer under the DDU.
It is difficult for the buyer to resell his share even through the assignment of rights . The fact is that the buyer of his share must go through the procedure of joining the cooperative, and other participants may not approve of his candidacy.
There are risks of increasing the cost of real estate , since the price is not fixed.
There is no liability of the developer for failure to meet deadlines.

Thus, the housing cooperative agreement regulates the relationship between shareholders and chairmen. With regard to such a contract, there are no clearly established rules for its description. It may contain any conditions for the sale of real estate in a house under construction, terms for returning money to shareholders, etc. A housing cooperative agreement should be concluded only after a detailed check of the activities of the cooperative and the documentation provided by it. The housing cooperative agreement has its inherent advantages and disadvantages over the DDU.

What is a power of attorney and when is it needed?

If you cannot personally attend meetings or personally monitor the entire process of the housing cooperative’s work, it is possible to assign these responsibilities to a trusted person.

The power of attorney is issued by a notary. It is necessary to write down a list of entrusted powers; it is better to look at all the clear wording in the charter and state them verbatim in the document. Also, do not forget to indicate the expiration date of the power of attorney, when you will be able to take control of the affairs yourself.

Termination

According to current legislation, you can voluntarily terminate your membership in the housing cooperative on the basis of an application sent to the address of the housing cooperative. In this document, you notify the cooperative of your withdrawal and demand payment of the contribution you made. Such an application is sent by registered mail with acknowledgment of receipt, so that in the future the fact of sending can be proven, or in another way that confirms the fact that the letter was sent and received by the addressee. You can read about the application to leave and join the housing cooperative, as well as about the complaint here.

The procedure for returning the share contribution is determined by the charter of the housing cooperative . At the same time, the charter of the housing cooperative may not provide for a return period exceeding 2 months from the date the housing cooperative made a decision to expel a member. If the cooperative does not transfer back the amount of the contributed share, you can go to court. You can also request a refund of interest for using finance.

As for the costs of housing cooperatives, 20% of the amount of the credited share contribution, the issue is controversial. You need to familiarize yourself with the wording of the clauses of the agreement defining the rights of the housing cooperative to retain part of the money, as well as the abstracts of the charter. Judicial practice shows that when making a verdict, courts often refer to the fact that the principle of freedom of contract is valid, and that the law does not define rules that prohibit housing cooperatives from not returning part of the contributed share. Moreover, the law gives housing cooperatives the right to set payment terms.

Creating a structure

What if there is no such structure in the house? It happens that when you want to join a cooperative, you are faced with the fact that this structure does not exist. You can create it yourself with the help of lawyers and specialists in the housing and communal services sector.

Attention! You can turn to already created organizations for help and take from them constituent documents, on the basis of which you will create your own cooperative.

More information about the creation and registration of housing cooperatives can be found in our material.

Terms and requirements

You can create a housing cooperative if the following conditions are met:

The unfinished property is the property of the developer.
The land plot on which the construction site is located is owned by the developer.
Requests for the transfer of residential premises were previously included in the register of creditors of the bankrupt developer.
The value of an unfinished construction project cannot exceed the value of the general claims of shareholders by more than 5%.
After the transfer, the debtor must have property left to pay off current payments.
An unfinished construction project should not be subject to collateral from third parties.
The final number of residential premises must be sufficient to satisfy the requirements of all construction participants.

How does the exclusion process work?

Exclusion from housing cooperatives occurs for several reasons:

Voluntary departure from the cooperative.
Systematic non-payment of fees.
Avoidance of fulfilling one's direct duties.
Other reasons provided for by the charter.

Please note that a member can be expelled only at a general meeting, by voting and explaining the position on both sides. The decision can be challenged at the constituent meeting itself, as well as in court.

Final stages

The final stage of creating a housing cooperative is searching for an office to rent, hiring staff, as well as the preparatory work necessary for construction. At the same stage, it is recommended to hold another meeting of members of the housing cooperative, the purpose of which will be:

Re-familiarization of owners and shareholders with the organization’s charter.
Announcement of approximate construction dates.
Announcement of approximate plans for the current year - construction or trust management.