Federal Law No. 485-FZ of December 31, 2017 allowed shareholders to vote at the general meeting on an equal basis with the owners of premises in the new apartment building. Now residents of new buildings can organize the first OSS immediately after putting the house into operation. We'll talk about how to conduct an OSS to select a property owner in a new home.
Who manages the house after it is put into operation?
The owners of a new house must choose a method of managing the apartment building in accordance with Part 4 of Art. 44 Housing Code of the Russian Federation. At the same time, the issue of choosing a management organization is decided for them first by the developer, and then by the local self-government body:
- within five days from the date of putting the house into operation, the developer enters into an agreement with the management organization for a period of no more than three months (part 14 of article 161, clause 3 of part 5 of article 162 of the Housing Code of the Russian Federation);
- within forty days from the date of issuance of permission to operate a new apartment building, the local self-government body holds an open competition to select a management organization.
After the completion of the competition, the owners of apartment buildings have two months to enter into an agreement with the organization selected as a result of the tender, or choose a different form of house management or another management organization.
Management of apartment buildings from the developer to the choice of management method
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Share your positive experience of changing MA
An organization planning to take control of an apartment building, which is included in the license of another management authority, must be prepared for long and painstaking work. It is necessary to comply with all formalities, strictly follow the requirements of the RF Housing Code, RF PP No. 416, RF PP No. 491, No. 938/pr, and not violate the established deadlines.
This will not only speed up and facilitate the management of the process of transferring the house to its management, but also protect its rights to manage the apartment building in court if one of the owners or the previous organization decides to challenge such changes.
In practice, changing the management organization is not easy. But we are sure that even our readers can give examples. Share in the comments examples when the owners refused the services of another management company and successfully signed a new management agreement with your company.
The procedure for changing the management organization in an apartment building
Created: November 30, 2021 Updated: November 30, 2020
Owners of premises in an apartment building independently choose the method of managing the house, one of which is the management of a management organization.
An apartment building can be managed by only one management organization (Part 1.3, 9, Article 161 of the Housing Code of the Russian Federation - hereinafter referred to as the Housing Code of the Russian Federation).
The owners of premises in an apartment building have the right to refuse to fulfill the management agreement for an apartment building and decide to change the management organization, in particular, if the management organization does not comply with the terms of the management agreement (Part 8.2 of Article 162 of the Housing Code of the Russian Federation).
By virtue of Part 3 of Article 161 of the Housing Code of the Russian Federation, the method of managing an apartment building is chosen at a general meeting of owners of premises in an apartment building and can be chosen and changed at any time based on its decision. The decision of the general meeting on the choice of management method is mandatory for all owners of premises in an apartment building.
The agenda of the general meeting must include issues on termination of the contract with the current management organization; on the choice of a new management organization; approval of the terms of the management agreement for an apartment building. The agenda should include issues for choosing the chairman of the meeting, the secretary of the meeting, and the counting commission.
It is advisable to include issues on the procedure for conducting the general meeting on the agenda of the initial meeting; on the procedure for notifying owners about the meeting and its results. Resolving these issues will make it easier to hold general meetings in the future.
The initiator of a general meeting to change the management company can be any owner of premises in an apartment building.
The decision of the general meeting on these issues is made by a majority vote of the total number of votes of the premises owners participating in the meeting.
It should be taken into account that the meeting is valid (has a quorum) if the owners of premises in the house or their representatives with more than 50% of the total number of votes took part in it (Part 1, Clause 5, Part 2, Article 44, Part 3 of Article 45, Part 1 of Article 46 of the Housing Code of the Russian Federation).
When calculating the quorum, persons who have accepted premises in a given building from the developer under a deed of transfer or other transfer document are also taken into account, who can take part in the meeting within a year from the date of putting the apartment building into operation (Part 1.1 of Article 44 of the Housing Code of the Russian Federation; Letter Ministry of Construction of Russia dated February 26, 2020 N 5607-OG/04).
The general meeting can be held through in-person, absentee and in-person voting. You can vote in person or through your representative (Articles 44.1, 47, Part 1, Article 48 of the RF Housing Code).
When holding a general meeting through in-person, in-person, absentee or absentee voting, the owner’s decision must indicate (Part 5.1, Article 48 of the RF Housing Code):
1. information about the person participating in the vote;
2. information about the document confirming the ownership of the person participating in the vote to the premises in the corresponding apartment building;
3.decisions on each item on the agenda, expressed in terms of “for”, “against” or “abstained”.
The decision of the general meeting of owners of premises in an apartment building is documented in minutes. The minutes of the general meeting are drawn up in writing within the time limits established by the general meeting, but no later than 10 calendar days from the date of the general meeting (Part 1, Article 46 of the RF Housing Code; Clause 2 of the Requirements approved by the Order of the Ministry of Construction of Russia dated January 28, 2019 N 44/pr).
The voting results and decisions made at the general meeting are brought to the attention of the owners of the premises in the house by the initiator of the meeting no later than 10 days from the date of adoption of these decisions. The message is posted in the premises of the house, determined by the decision of the general meeting of owners and accessible to all owners (Part 3 of Article 46 of the Housing Code of the Russian Federation).
When choosing a management organization by a general meeting of premises owners, a management agreement is concluded with each owner of premises in an apartment building on the terms specified in the decision of the general meeting.
The management agreement is concluded in writing or electronically using the GIS housing and communal services system by drawing up one document signed by the parties. At the same time, the owners of premises who have more than 50% of the total number of votes of the owners of premises in an apartment building act as one party to the concluded agreement (Part 1 of Article 162 of the Housing Code of the Russian Federation).
The management agreement for an apartment building is concluded for a period of no less than one year and no more than five years. The owners have the right to change or terminate the management agreement on the grounds provided for by civil legislation (clause 1, part 5, part 8, article 162 of the Housing Code of the Russian Federation).
Under the terms of the agreement, the management organization, within an agreed period of time for a fee, undertakes to perform work and (or) provide services for the management of an apartment building, for the proper maintenance and repair of common property in such a house, to provide utilities to the owners of the premises and persons using the premises in this building, or to provide readiness of engineering systems, as well as to carry out other activities aimed at achieving the goals of managing an apartment building (Parts 1, 2 of Article 162 of the Housing Code of the Russian Federation).
The management organization is responsible to the owners of premises in an apartment building for the provision of all services and (or) performance of work that ensure the proper maintenance of common property in a given building and the quality of which must comply with the requirements of technical regulations and the Rules for the maintenance of common property in an apartment building, for the provision of utilities services depending on the level of improvement of a given house, the quality of which must meet the requirements of the Rules for the provision, suspension and limitation of the provision of utility services to owners and users of premises in apartment buildings and residential buildings, or for ensuring the readiness of engineering systems (Part 2.3 of Article 161 of the Housing Code of the Russian Federation) .
An owner who did not take part in the voting or voted against the decision, who believes that this decision violated his rights and legitimate interests, has the right to appeal to the court a decision made in violation of the requirements of the Housing Code of the Russian Federation, within six months from the day he learned or should was to learn about the decision made.
The court, taking into account all the circumstances of the case, has the right to uphold the appealed decision if the vote of the said owner could not influence the voting results, the violations committed are not significant and the decision made did not entail causing losses to the owner (Part 6 of Article 46 of the RF Housing Code).
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Who can initiate an OSS in a new building and vote on it
A management organization that wants to take control of a new building has two ways to do this:
- win an open competition organized by a local self-government body;
- organize a general meeting of owners in the house at the discretion of the management authority.
Before the adoption of Federal Law No. 485-FZ of December 31, 2017, it was problematic to carry out OSS in a new building: only owners of premises in a new building could take part in OSS, and registration of property rights sometimes took up to six months.
No. 485-FZ amended Art. 44 of the Housing Code of the Russian Federation. According to Part 1.1 of Art. 44 of the Housing Code of the Russian Federation, persons who have accepted premises in an apartment building from the developer under a transfer deed, within a year after this, receive the right to vote at general meetings of owners on an equal basis with those who have already registered ownership of the apartment.
Therefore, a management organization seeking to get a new apartment building into the license register can organize a general meeting of owners on this issue, without waiting for shareholders to receive documents confirming the registration of property.
How to manage new apartment buildings
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How to remove a management company and create an HOA
Often, residents of apartment buildings decide to refuse the services of a management company and create an HOA. The reasons for this can be very different, ranging from misuse of common funds to improper fulfillment of one’s direct responsibilities for the maintenance of shared property and areas of the house.
In this case, the decision is also made at a general meeting of all residents of the house. After that, the results are documented in the appropriate protocol, on the basis of which further actions are taken.
HOA - pros and cons
The main advantages of creating a partnership include:
- apartment owners have the opportunity to influence the chosen management model, since most decisions are made at the meeting by voting;
- reduction of general household expenses through the use of additional sources of financing. According to current legislation, the HOA has the right to conduct commercial activities and use the income received to satisfy its needs;
- ensuring constant control over the process of managing the common property of apartment buildings;
- As practice shows, home maintenance is performed at a higher level, since the HOA is interested in its improvement.
However, a number of disadvantages characteristic of this form of residential building management cannot be ignored. We are talking about the following disadvantages of HOAs:
- higher fees are charged for maintaining the home. In this case, we are talking about additional fees that are organized by the residents of the house for its improvement. Not all apartment owners are happy with this situation;
- constant disagreements between residents and lack of coordination of actions;
- If there is a person in a residential building who has large debts on utility bills, his debt will be compensated by all other payers.
The procedure for transferring from a management company to a HOA
In order to replace the management company with a HOA, the following steps must be performed sequentially:
- First, at the general meeting, a decision is made to refuse the services provided by the management company and switch to a form of management with the help of an HOA.
- Further, on the basis of the decision made, the trust management agreement previously concluded with the Criminal Code is terminated (clause 8.2 of Article 162 of the Housing Code of the Russian Federation).
- The next step will be to create an apartment owners association and register it in the prescribed manner.
The procedure for creating an HOA step by step
The instructions for creating a HOA have a specific algorithm of actions. You need to take the following steps:
- Initially, an initiative group consisting of home owners must be created, which will deal with all the formalities.
- Next, the initiators contact the local administration with an application to take the following actions:
- providing a list of all apartments in a particular building;
- approval of the candidacy of a representative from the district, who must be present at the meeting of residents to establish a quorum.
- Preparation for the meeting - you need to develop a charter for the future HOA in order to immediately approve it, prepare voting sheets, etc.
- Holding a general meeting of apartment building residents - at it the issue related to the choice of a new option for managing the house should be finally resolved, and the developed draft charter of the HOA should be adopted.
- Registration of the partnership with the registration authority.
- Opening a bank account, as well as sending a notice of the creation of an HOA to all regulatory authorities (Housing Inspectorate, local administration, etc.).
After all these actions, the form of management of the common property of the house is considered officially changed.
The management company does not transfer the house to the HOA, what to do?
Sometimes in practice it is quite difficult to painlessly remove a management company that cannot cope with its responsibilities and transfer these powers to the HOA.
As noted earlier, when changing the management option of an apartment building, the organization that must leave is obliged to transfer all the necessary documentation and keys to its legal successor. However, sometimes situations occur when the management company categorically refuses to transfer the house. In this case, a completely logical question arises - what to do?
The way out of this situation is for the HOA to file a claim with the court at the location of the residential building.
Summarizing all of the above, it should be noted that the legislation does not prohibit citizens from leaving the HOA, giving preference to the management company, or from changing the management company to a homeowners’ association. In both cases, it all starts with making an appropriate decision at a general meeting of residents of an apartment building.
