Standard form of contract for the provision of services for the maintenance and current repairs of common property of apartment buildings

By decision of the general meeting of owners

Most often, a management organization comes to work in an apartment building by decision of the general meeting of premises owners (Part 1 of Article 162 of the Housing Code of the Russian Federation). This may be the first choice of residents of a new building or a change of company, a change in the management method from an HOA or cooperative to a management company.

According to part 5, 6 art. 162 of the Housing Code of the Russian Federation, the management agreement in this case is concluded for a period of one to five years with automatic extension for a similar period, if neither the management company nor the owners express a desire not to renew it.

The initiator of the OSS on the selection of a management organization and the conclusion of a management agreement with it can be any owner, an existing management organization, or a municipality in accordance with Part 6 of Art. 161 Housing Code of the Russian Federation. Decisions on these issues are made by a simple majority: 50% + 1 heads from all votes of the owners present at the meeting (clause 4, part 2, article 44, part 1, article 46 of the Housing Code of the Russian Federation).

When choosing a management organization, a management agreement is concluded with each owner in such a house. At the same time, the residents of the house are represented by the owners of the premises, who have more than 50% of the votes of the total number in the apartment building.

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The need to sign a management agreement for an apartment building by the owners has long ceased to raise questions. After all, a contract is always a two-way transaction. Judicial practice has long been established and it is almost uniform. The management agreement must be signed by the owners who have 50+1% of the votes of the total number of votes of the owners of the premises of the house. Or it is signed by the Chairman of the Council of the apartment building on the basis of a decision taken by the general meeting of owners (GMS) to delegate such powers to him.

In some regions, state housing supervision authorities (hereinafter - GZHN) tried to refuse management organizations (MA) to include a house in the register due to the lack of a power of attorney addressed to the Chairman of the MKD when delegating to him the authority to sign a management agreement. But the courts for the most part considered that such a power of attorney is not required from each owner; the will of the citizens, as set out in the OSS decision, is sufficient.

Article 162 of the Housing Code of the Russian Federation (hereinafter referred to as the Housing Code of the Russian Federation) talks about the management agreement for an apartment building (MAD):

Clause 1: The management agreement for an apartment building is concluded with the management organization

, which has been granted a license to carry out activities for managing apartment buildings in accordance with the requirements of this Code,
in writing or electronically using the system by drawing up one document signed by the parties.
When choosing a management organization by a general meeting of owners of premises in an apartment building, a management agreement is concluded with each owner of premises in such a building on the terms specified in the decision of this general meeting. At the same time, the owners of the premises

in this house, having
more than fifty percent of the votes
of the total number of votes of the owners of the premises in this house,
act as one party to the concluded agreement .
As we can see from this norm, the management agreement is drawn up in the form of a single document in writing, which is signed by the management organization - on the one hand, and the owners (with 50+1% of the votes) - on the other hand. However, it would not be a mistake to sign a separate agreement with each owner of the apartment building premises, if you don’t mind the paper and time spent scanning a bunch of agreements for posting in the Housing and Communal Services GIS. There is no prohibition in the law on this, but from the meaning of the article it is not particularly clear: it must be a single document or a separate signed form with each owner.

Disputes about the form in which signatures should be drawn up, if it is decided to draw up a single document, are also not uncommon. From my practice, I can say that we have always drawn up a single document - an agreement and its annexes. Immediately after the details of the parties, the owners who signed the management agreement were indicated (on a separate sheet) in the form of a table. This sheet of agreement was called: “The owners who signed the management agreement for apartment building No. ___ on the street. _______ G. ____________".

The table consisted of the following columns: apartment or premises number, full last name, first name, patronymic, record number of registration of ownership of the apartment, signature. Next came the annexes to the agreement, all of which were stitched together into a single document. Our body GZHN, during inspections, did not make any complaints about the procedure for drawing up a management agreement until recently. I hope it won't happen any further. It is quite possible that in other regions supervisory authorities put forward different requirements.

Clause 2 of Art. 162 of the RF Housing Code speaks about the subject of the management agreement and the rights and obligations under it; we will not dwell on it in detail.

As for the right of the Chairman of the MKD Council to sign a management agreement, this is indicated in paragraphs. 3 paragraphs 8 art. 161.1 Housing Code of the Russian Federation. The Chairman of the Council of Apartment Buildings has the right, on the basis of a power of attorney issued by the owners of premises in an apartment building, to conclude, under the conditions specified in the decision of the general meeting of owners of premises in a given building, a management agreement for an apartment building

or contracts specified in parts 1 and 2 of Article 164 of this Code. Under the management agreement for an apartment building, all owners of premises in the apartment building who have granted the chairman of the board of the apartment building powers certified by such powers of attorney acquire rights and become obligated.

However, judicial practice is on the side of management organizations, when the State Housing Authority body requires the powers of attorney specified in this norm and makes a decision to refuse to make changes to the register of licenses. The courts mostly believe that the OSS protocol is the basis for the delegation of powers and the signing of a management agreement by the Chairman of the MKD Council (without issuing a power of attorney from each owner). We cited judicial practice on this issue in the ARTICLE

on our blog.

Changes to the register of licenses are made on the basis of Order of the Ministry of Construction No. 938-pr dated December 25, 2015 “On approval of the Procedure and timing for making changes to the register of licenses of a constituent entity of the Russian Federation” (hereinafter referred to as Order 938).

The management agreement, after approval of its terms at the general meeting when choosing a management method and a management organization, must be posted in the GIS Housing and Communal Services, and also sent to the licensing authority as an appendix to the application for amendments to the register of licenses of a constituent entity of the Russian Federation. Often, the management authority only attached the management agreement itself, without any appendices, which led to a refusal to make changes to the license register.

Sometimes the application was accompanied by a management agreement signed by one or more owners. In this case, the courts also stood on the side of the civil society authorities in almost all regions, supporting them in demanding an annex to the application - a management agreement signed by the required number of owners (50% + 1 vote) and with all attachments.

We have already cited the judicial practice under the old version of Order 938 regarding refusals to enter licenses into the register, including due to the absence of a management agreement signed by the required number of owners in the appendix to the application, in the above article.

There is no need to attach a management agreement signed by the owners to the application only if it is concluded on the basis of a competition. Then, the application for inclusion of the house in the register is accompanied by a management agreement, signed only by the management organization (clause “z”, clause 3). And when managing a house on the basis of a management agreement with the Developer, a management agreement signed between the management company and the developer is attached (clause “c”, clause 3).

In accordance with paragraph 3 of Order 938 in the current version, the application for amendments to the register of licenses of a constituent entity of the Russian Federation is accompanied, among other things, by a copy of the management agreement, the terms of which were approved by the decision of the general meeting of owners

premises in an apartment building, or a copy of the management agreement concluded with the developer in the cases provided for in Part 14 of Article 161 of the Housing Code of the Russian Federation (subparagraph “c”).

As amended by the Order until January 12, 2019, the specified subparagraph “c” previously required an attachment to the application - a copy of the management agreement concluded by the licensee with the owners of the premises in the apartment building.

That is, as indicated in the norms of the Housing Code of the Russian Federation. We will probably find out what the legislator meant by this innovation only after developing judicial practice in such cases.

It is clear that the management agreement must be signed with the required number of owners, if they have not delegated the authority to sign it to the Chairman of the MKD Council. After all, the management agreement is the main document on the basis of which the management organization operates and its relations with the owners are built. And it is considered concluded not after its terms are approved by the OSS, but only after it is signed by the owners or their representatives. But what the licensing authority will now require in the appendix to the application to include the house in the register of licenses is still an open question.

It seems to me that the practice of courts will, as always, be of different sizes. Each judge will interpret the law based on his “inner conviction” as stated in the law. And we will tell you how events will develop further in this matter in our new articles after there are enough court decisions to talk about the established judicial practice on this topic.

Sincerely, Ilmira Nosik.

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Based on the results of an open competition

Also, a house often receives its own management organization based on the results of an open competition. This is due to the fact that:

• the owners of premises in the apartment building did not conduct an OSS and did not choose a management method (Part 4 of Article 161 of the Housing Code of the Russian Federation);
• The OSS was carried out, but the chosen management method was not implemented (Part 4 of Article 161 of the RF Housing Code);
• the house was managed by a management company selected earlier in an open competition, the management contract expires, and the owners have not carried out the OSS (Part 4 of Article 161 of the Housing Code of the Russian Federation);
• the new building has been put into operation, and the owners have not yet decided to choose a management organization or create a homeowners association or cooperative (part 13 of article 161 of the Housing Code of the Russian Federation);
• The current management company lost its license or the right to manage the house due to violations of licensing requirements, including gross ones (Part 5 of Article 200 of the Housing Code of the Russian Federation).

In all these cases, according to Part 4 of Art. 161 of the Housing Code of the Russian Federation, the local government body must hold an open competition to select a management authority for an apartment building. He does this in accordance with Decree of the Government of the Russian Federation dated 02/06/2006 No. 75. The winner of the open competition is the management entity that offers to carry out the list of works and services specified by the municipality for the least amount of payment.

The local government body, within ten days from the date of the open competition, notifies the residents of the house about its results and the conditions of the tender. Owners of premises in apartment buildings are required to conclude such an agreement in accordance with Art. 445 of the Civil Code of the Russian Federation (part 5, 13, article 161 of the Housing Code of the Russian Federation).

If within two months from the date of the open tender the owners have not concluded a management agreement with the management company, the agreement is considered concluded automatically. The validity period of such a remote control is from one to three years (Part 5 of Article 162 of the Housing Code of the Russian Federation).

New rules for choosing a management authority for an apartment building through competition and without

Article 162 of the RF Housing Code. Apartment building management agreement (current version)

1. An agreement for the management of an apartment building is concluded with a management organization that has been granted a license to carry out activities for the management of apartment buildings in accordance with the requirements of this Code, in writing or in electronic form using the system by drawing up one document signed by the parties. When choosing a management organization by a general meeting of owners of premises in an apartment building, a management agreement is concluded with each owner of premises in such a building on the terms specified in the decision of this general meeting. In this case, the owners of premises in this building, having more than fifty percent of the votes of the total number of votes of the owners of premises in this building, act as one party to the concluded agreement. Each owner of premises in an apartment building independently fulfills the obligations under the management agreement for the apartment building, including the obligation to pay for residential premises and utilities, and is not responsible for the obligations of other owners of premises in this building.

1.1. In the case provided for in Part 13 of Article 161 of this Code, with each person who has accepted from the developer (the person providing the construction of an apartment building) after issuing permission to put an apartment building into operation, premises in this building under a transfer deed or other transfer document shall be concluded management agreement for an apartment building. Moreover, such persons act as one party to the concluded agreement if they constitute more than fifty percent of their total number.

2. Under an agreement for the management of an apartment building, one party (the management organization) on the instructions of the other party (the owners of the premises in the apartment building, the management bodies of the homeowners’ association, the management bodies of a housing cooperative or the management bodies of another specialized consumer cooperative, the person specified in clause 6 of part 2 Article 153 of this Code, or in the case provided for in Part 14 of Article 161 of this Code, the developer) within an agreed period for a fee undertakes to perform work and (or) provide services for the management of an apartment building, provide services and perform work on the proper maintenance and repair of common property in such a house, provide utility services to the owners of premises in such a house and persons using the premises in this house, or in cases provided for in Article 157.2 of this Code, ensure the readiness of engineering systems, and carry out other activities aimed at achieving the goals of managing an apartment building.

2.1. The management agreement for an apartment building, concluded in the manner established by this article, must be placed by the management organization in the system in the manner established by the federal executive body exercising the functions of developing and implementing state policy and legal regulation in the field of information technology, together with the federal an executive body that carries out the functions of developing and implementing state policy and legal regulation in the field of housing and communal services.

3. The management agreement for an apartment building must indicate:

1) the composition of the common property of the apartment building in respect of which management will be carried out, and the address of such a building;

2) a list of works and (or) services for the management of an apartment building, services and works for the maintenance and repair of common property in an apartment building, the procedure for changing such a list, as well as a list of utilities provided by the management organization, with the exception of utility services provided in in accordance with Article 157.2 of this Code;

3) the procedure for determining the price of the contract, the amount of payment for the maintenance and repair of residential premises and the amount of payment for utility services, as well as the procedure for making such payment, with the exception of payment for utility services provided in accordance with Article 157.2 of this Code;

4) the procedure for monitoring the management organization’s fulfillment of its obligations under the management agreement.

4. The terms of the management agreement for an apartment building are established the same for all owners of premises in the apartment building.

5. The management agreement for an apartment building is concluded:

1) in the case specified in part 1 of this article, for a period of not less than one year, but not more than five years;

2) in the cases specified in parts 4 and 13 of Article 161 of this Code, for a period of no less than one year, but not more than three years;

3) in the case specified in Part 14 of Article 161 of this Code, for a period of no more than three months.

6. In the absence of an application from one of the parties to terminate the management agreement for an apartment building at the end of its validity period, such an agreement is considered extended for the same period and on the same conditions as provided for in such an agreement.

7. The management organization is obliged to begin executing the management agreement for an apartment building from the date of making changes to the register of licenses of a constituent entity of the Russian Federation in connection with the conclusion of a management agreement for such a building.

8. Changes and (or) termination of the management agreement for an apartment building are carried out in the manner prescribed by civil legislation.

8.1. Owners of premises in an apartment building unilaterally have the right to refuse to execute a management agreement for an apartment building, concluded as a result of an open competition provided for in parts 4 and 13 of Article 161 of this Code, after each subsequent year from the date of conclusion of the said agreement if, before the expiration of the term validity of such an agreement, the general meeting of owners of premises in an apartment building made a decision to choose or change the method of managing this building.

8.2. Owners of premises in an apartment building, on the basis of a decision of the general meeting of owners of premises in an apartment building, unilaterally have the right to refuse to fulfill the management agreement for an apartment building if the management organization does not comply with the terms of such agreement, and decide to select another management organization or change the method of managing this home.

9. Management of an apartment building, which is owned by a housing cooperative or in which a homeowners’ association has been created, is carried out taking into account the provisions of sections V and VI of this Code.

10. The management organization, within three working days from the date of termination of the management agreement for an apartment building, is obliged to transfer technical documentation for the apartment building and other documents related to the management of such a building, keys to the premises that are part of the common property of the owners of premises in the apartment building, electronic access codes to equipment included in the common property of the owners of premises in an apartment building, and other technical means and equipment necessary for the operation and management of an apartment building, a newly selected management organization, a homeowners' association or a housing or housing-construction cooperative or other specialized consumer cooperative , and in the case of direct management of such a house by the owners of premises in such a house, to one of these owners, indicated in the decision of the general meeting of these owners on the choice of the method of managing such a house, or, if this owner is not specified, to any owner of the premises in such a house.

11. Unless otherwise established by the management agreement for an apartment building, the management organization annually, during the first quarter of the current year, submits to the owners of premises in the apartment building a report on the implementation of the management agreement for the previous year, and also places the specified report in the system.

12. If, based on the results of the execution of the management agreement for an apartment building in accordance with the report on the implementation of the management agreement posted in the system, the actual expenses of the management organization turned out to be less than those that were taken into account when establishing the amount of payment for the maintenance of residential premises, subject to the provision of services and (or) performance of work for the management of an apartment building, provision of services and (or) performance of work on the maintenance and repair of common property in an apartment building, provided for by such an agreement, the specified difference remains at the disposal of the management organization, provided that the savings received by the management organization did not lead to inadequate quality of services provided and (or) work performed on the management of an apartment building, services provided and (or) work performed on the maintenance and repair of common property in an apartment building, provided for by such an agreement, confirmed in the manner established by the Government of the Russian Federation. In this case, the management agreement for an apartment building may provide for a different distribution of the savings received by the management organization.

The municipality appointed a building authority to the house as a temporary

Cases when the management authority receives a house under management as a temporary one appointed by the municipality are described in Part 17 of Art. 161 Housing Code of the Russian Federation. A local government body can independently determine a management organization if the owners have not chosen a management method or have not implemented it, and the open competition is declared invalid.

The procedure for selecting a temporary management company for a house is described in Decree of the Government of the Russian Federation dated December 21, 2018 No. 1616. The temporary company is selected from the list that includes all management companies that have submitted the appropriate application and, or from January 1, 2021, participated in any open competition for the selection of a management organization (clauses 52, 53 RF PP No. 75).

Organizations are included in the list in chronological order: by date of application or application for participation in the competition. According to clause 8 of RF PP No. 1616, from the list the municipality selects the one that manages the smallest number of houses. If one UA was previously given three houses for temporary management, and another – four, then the local government body will appoint the first of these companies to the house.

When a local government authority has chosen a management authority for a house, it has five working days to notify the owners of the premises in writing about its decision and the terms of the management agreement. The management agreement between the temporary company and the owners of the premises is concluded automatically from the date of its appointment.

The management entity selected by the local government body works in the house until the owners conduct an OSS and decide on the management method, enter into a management agreement with the company they have chosen, or an open municipal competition takes place. However, this period cannot exceed one year.

By decision of the board of the HOA or cooperative

Other cases of concluding management agreements can be called private: they are possible only under certain circumstances. For example, in a house where the owners have created a HOA or cooperative. According to clause 1, part 1, art. 137, part 2.2 art. 161 of the Housing Code of the Russian Federation, a homeowners’ association or cooperative can provide services for the maintenance and repair of common property themselves or engage a third-party company under a contract. When concluding a management agreement, the HOA and housing complex monitor the fulfillment of the management organization’s obligations under it.

The decision to conclude a management agreement is made by the board of the owners’ association by a simple majority of votes (part 6 of article 147.6, part 4 of article 148 of the Housing Code of the Russian Federation). It is drawn up in the minutes of the board meeting, the document is signed by the chairman of the board and the secretary of the meeting.

In this case, the management agreement is concluded between the selected organization and the HOA or cooperative. By analogy with an agreement concluded by decision of the OSS, the validity period of the management agreement is from one to five years, unless otherwise provided by the Charter of the partnership or cooperative.

When a management agreement between an HOA and a management company is invalidated

The Supreme Court clarified whether the management company should continue to service the house when it is excluded from the register of licenses

In Determination No. 303-ES20-23313 of April 19, the Supreme Court clarified whether a management organization that has excluded information about an apartment building from the register of licenses should continue to manage it until a new management company appears.

LLC Management Company "Dersu" won the competition to select a management organization to manage an apartment building, entered into an appropriate agreement for a period of one year with the possibility of its extension on the same terms and for the same period in the absence of a statement from one of the parties to terminate it. After a year, the management company decided to exclude the MKD from the register of licenses. She managed the house until July 1, 2021.

On August 13, 2021, based on the results of an unscheduled documentary inspection, the housing inspection drew up an act stating that after making changes to the register of licenses of the Dersu Management Company, it does not manage apartment buildings, does not maintain and repair the common property of the owners in the house, does not send payment documents, In connection with this, it issued an order on the obligation to continue to carry out activities related to the management of an apartment building until the day of the occurrence of the event provided for in Part 3 of Art. 200 of the Housing Code, that is, before the choice of another management company, management of apartment buildings by the owners of premises or state registration of a homeowners' association or housing cooperative.

Dersu appealed to the Arbitration Court of the Primorsky Territory, which agreed with the position of the housing inspectorate that if information about an apartment building is excluded from the register of licenses of a constituent entity of the Russian Federation, the licensee is obliged to properly fulfill the duties of managing the apartment building, providing services and (or) performing work for the maintenance and repair of common property in an apartment building in accordance with the requirements of the law until the day of the occurrence of the mentioned circumstances specified in Part 3 of Art. 200 housing complex of the Russian Federation. The appeal and cassation left the decision of the first instance unchanged.

Disagreeing with the conclusions of the courts, the management company filed a complaint with the Supreme Court. The Supreme Court noted that the exclusion of information about MKD from the register of licenses in accordance with Part 6 of Art. 198 of the Housing Code is the basis for the licensee to terminate the activities of managing such a house in the manner established by Art. 200 Code.

From the date of exclusion of information, the licensee has no right to carry out activities related to the management of apartment buildings, including charging and collecting fees for residential premises and utilities, issuing payment documents to consumers, except for the cases provided for in Part 3 of Art. 200 LCD. In accordance with this provision, the licensee is obliged to properly fulfill the duties of managing the apartment building, providing services or performing work on the maintenance and repair of common property in accordance with the requirements of the law until the day:

1. occurrence in accordance with Part 7 of Art. 162 of the Code of Obligations for the management of such a house from a management organization selected by the general meeting of owners of premises in an apartment building or selected based on the results of an open competition held by a local government body;

2. the occurrence of obligations under the management agreement of the apartment building, concluded by the management organization with the homeowners’ association, housing cooperative or other specialized consumer cooperative;

3. occurrence of obligations under the contracts specified in parts 1 and 2 of Art. 164 Code;

4. state registration of a homeowners’ association, housing cooperative or other specialized consumer cooperative.

“The above legal provisions do not impose on other licensees, in particular, upon whose applications changes were made to the register of licenses in connection with the termination of the management agreement at the end of its validity period, the responsibility for managing an apartment building after making appropriate changes to the register of licenses,” the Supreme Court said.

Management agreement with the sole owner of all premises in the house

Another special case of concluding a management agreement is based on the decision of the sole owner of all premises in an apartment building. It is important here not to confuse it with a situation where the owner of all premises is the Russian Federation or the municipality. According to Part 2 of Art. 163 of the Housing Code of the Russian Federation, the management agreement for such an apartment building is concluded on the basis of an open competition in accordance with Part 4 of Art. 161 Housing Code of the Russian Federation.

A completely different case is when all the premises in the house belong to a private company, for example, an enterprise in a subordinate hostel. Then it is the owner who enters into a management agreement with the management company he has chosen for a period of one to five years with automatic extension.

Management agreement with the developer

The conditions for concluding a control agreement in a new building immediately after its commissioning are prescribed in Part 14 of Art. 161 Housing Code of the Russian Federation. Five days after the date of receipt of permission to put the apartment building into operation, the developer enters into a management agreement with the company he has chosen.

In this case, the management organization will act as a contractor for the developer. It must enter into agreements with the RSO on the basis of the act of putting the apartment building into operation.

The validity period of such a remote control is no more than three months. During this period, the owners will have time to conduct an OSS and select a management company, or the municipality will announce and hold an open competition.

Change of management organization

Choice of management company. Owners can choose whether to change the management company or the HOA at a general meeting based on Part 3 of Art. 161 Housing Code of the Russian Federation. The basis for this is an agreement with signatures of 50% of the owners plus 1 signature of the total number of signatures.

Signature right. If the residents issued powers of attorney to the Chairman of the MKD Council, then he, on the basis of paragraphs. 3 paragraphs 8 art. 161.1 of the Housing Code of the Russian Federation can conclude an agreement independently. His signature and copies of powers of attorney will be sufficient.

Change in the license register. After Goszhilnadzor confirms the changes to the register of licenses, the MKD passes to the selected management company, which undertakes to maintain it.

• 02.10.2019

Use all options for obtaining houses under management for company growth

Management organizations that seek to expand and develop their business by obtaining new houses for management should use all cases of concluding management agreements.

For the management company and the residents of the building, the optimal way to conclude a management agreement is to choose a company on the OSS. The management organization comes to the house without third-party interference or imposition, and the residents of the house understand that they themselves chose the company for their home.

Also, the MA can actively participate in open competitions of the municipality, thereby having a chance to become a “temporary” PA assigned to the house. This may be an opportunity to convince the owners of premises in the house to choose an OSS company for further management.

Most often, “its own” management company operates under an agreement with the developer, but in an effort to expand, it can also go beyond the scope of new buildings and enter into management agreements under other conditions. You can consider negotiating options with the HOA, offering the board professional management of the house.

Analyze your capabilities and the market for managing apartment buildings in your city and region and choose the optimal path for the development of the company.