What is management of non-residential premises and how to conclude an agreement?

What is it and do you need a license to operate a building?

The transfer of one's property rights and obligations for the purpose of delegating authority to maintain real estate is called operational management. The organization to which the right has been transferred cannot dispose of the property at its own discretion; all actions must be agreed upon with the owner and covered in the contract.

Both an individual and a legal entity may be suitable to perform management functions, since a license for this type of activity is not required (Federal Law No. 99 “On licensing of certain types of activities”).

What does the management organization do to manage the assets of this fund?

The main purpose of property management is to ensure the efficient use of property and ensure the execution of the owner's core activities. The management organization must, through its activities, achieve the most profitable uses of real estate.

Her responsibilities include:

1. Formation of profitable use of the property. The use of real estate must be expedient and not incur losses for the owner.
2. Ensuring communication with the public and local government agencies.
3. Creation and implementation of a real estate development plan.
4. Analysis of the real estate market and conducting marketing research in order to represent the property on the market.
5. Ensuring the correctness of transactions and conclusion of contracts from a legal point of view. Maintain documentation in accordance with established standards.
6. Concluding an agreement with cleaning services (read about the agreement and the nuances of cleaning non-residential premises here).
7. Ensuring that funds for maintaining the facility are spent appropriately.
8. Organization of repair work. Installation of necessary equipment (video cameras, Internet).
9. Necessary accounting support.
10. Maintaining the initial value of the property or increasing it.

The activities of the management company must be agreed upon with the owner, depending on the functional purpose of the object (Civil Code of the Russian Federation, Art. No. 296).

We talked about the rights and obligations of the owner of non-residential premises here.

Responsibility for breach of duty

The legislation equalizes the rights and responsibilities of owners of residential and non-residential premises of apartment buildings. Article 289 of the Civil Code of the Russian Federation regulates the obligations of owners of both types of real estate. For violations of regulations that make up the Civil Code of the Russian Federation, civil penalties may be applied. In certain cases, the perpetrator of violations may be held accountable in court.

Is the owner obligated to maintain the property and pay for housing and communal services?

Article 210 of the Civil Code of the Russian Federation defines a list of responsibilities that must be strictly fulfilled in full and on time by all owners of non-residential property in multi-apartment buildings:

• during the operation of the property, take into account the legally guaranteed rights of other owners and residents of the house;
• use the property within the framework of current legislation;
• strictly observe sanitary and epidemiological standards;
• maintain order and cleanliness in the premises;
• carry out fire prevention measures of a preventive nature;
• pay housing and communal services on time;
• make contributions for the maintenance and repair of the house;
• pay taxes on time;
• coordinate repair and reconstruction activities with specialized government agencies, residents and other owners.

Resolution of the State Committee of the Russian Federation No. 170 dated August 27, 2003 approved a list of norms and rules for the technical operation of residential and non-residential real estate. The basic rules and norms for the operation of non-residential premises, generalized by functionality, are as follows:

1. rules aimed at ensuring fire safety;
2. rules ensuring trouble-free operation of technical equipment;
3. rules for maintaining appropriate sanitary conditions.

These rules and regulations are required to be observed by owners of non-residential real estate in apartment buildings. In order to take into account the rights of residents of apartment buildings, additional restrictions have been introduced on certain types of economic activities, the procedure and time for their implementation.

The nature of interaction to share the burden of maintaining joint ownership of an apartment building is also determined:

• The owner of a non-residential property finances the maintenance of all common building technical elements, communications and the surrounding area of ​​the building on the principle of joint participation together with the residents of the house.
• Current and major repairs of non-residential real estate are carried out by the owner at his own expense, taking into account current legislation and in agreement with the closest neighbors in the building.

• The implementation of sanitary and hygienic measures in non-residential premises is ensured by the owner independently. Cleaning of elements of joint ownership, which include office premises, is carried out jointly with the residents of the apartment building. The nature of participation is agreed upon individually.
• Several forms of management of non-residential real estate are allowed - personal, trust and outsourcing. If the premises are leased, management methods are determined by the tenant.
• The owner of non-residential real estate in an apartment building is obliged to make timely payment of the following utility payments: water supply and sanitation, heat supply, gas (if connected), electricity.

Strict adherence to the rules of ownership and use of non-residential premises in apartment buildings will allow property owners to avoid many conflict situations with management companies with residents of apartment buildings, as well as eliminate claims from government bodies, the settlement of which often involves significant financial costs.

Control methods

There are several ways to manage your property:

1. The management company assumes the responsibility for maintaining the building in the condition required for use and carries out all necessary repairs on time for the normal functioning of the property. The management company has experience and a professional approach in the field of property management and this is its main advantage. You will find all the features of renovation work of non-residential premises here.
2. Creation of a homeowners' association (HOA). The purpose of the organization is to maintain property. The partnership can itself make all decisions regarding the maintenance of common property. A significant disadvantage is the inexperience of property owners in this field of activity.
3. Organization of a housing construction cooperative (HBC). The main purpose of the association is construction and property management. All members of the cooperative contribute a share. The advantage of housing cooperatives is the participation of all members of the cooperative in decisions related to real estate (Article 116 of the Civil Code of the Russian Federation).
4. If the premises belong to a small number of owners, it is possible to manage them jointly by all owners. In this case, all expenses are divided in equal shares. Owners make their own decisions regarding the maintenance and repair of buildings.

The housing construction cooperative must include at least five citizens or organizations.

Legal regime for the use of non-residential premises

The basement of a residential building is common property; theoretically, it belongs to everyone who owns apartments in this building, and these people can use it. But since it is in the basement that communications take place, this cannot be done at one’s own will and discretion; a number of conditions must be met (for example, things should not come into contact with pipes in any way), as well as permission. To get it, you need to act together with the management company.

Important!

The new fire safety rules state that basements and basements cannot be used for other purposes than their intended purpose. In practice, this means that residents cannot arbitrarily organize storage rooms and premises for other purposes in the basements - only if they agree on such use of the premises, and appropriate changes are made to the documentation for the house.

How to conclude an agreement with a management company, HOA, housing cooperative, between owners?

First of all, the owner needs to enter into a written agreement with organizations involved in the supply of resources (water, gas, electricity, etc.). And also with organizations for the removal of solid municipal waste. You will find the specifics of setting tariffs and calculating payments for electricity for non-residential premises here, and learn about the maintenance of non-residential premises, connecting water and other services, as well as tariffs here.

Next, you must provide the management company with:

• copies of contracts, within 5 days after conclusion;
• information on the volume of resources expended;
• information on the volume of solid waste removal services within 3 days.

The duration of the agreement with the management company is from 1 to 5 years. If during this period there are no violations of the terms of the agreement between the owner and the company, then the document is renewed automatically.

If the owner of non-residential real estate has not concluded an individual agreement with the RSO, then he will pay for services at the same rate as all owners of residential premises.

When joining an HOA, the following points are indicated in the document:

• list of property transferred for maintenance;
• work that may be needed for repairs;
• liability of the HOA for failure to fulfill its obligations;
• owner's obligation to pay for utilities;
• terms, procedure and amount of payment for utility services.

The housing cooperative must have a constituent document, which will indicate:

• name of the cooperative;
• its location;
• purpose of activity;
• how to join a cooperative;
• how to get out of it and the conditions for receiving your contribution back;
• contribution schedule;
• liability for non-compliance with the terms of the contract;
• bodies that control the activities of housing cooperatives;
• bankruptcy and liquidation of housing cooperatives.

As for the agreement with the housing cooperative, it will look the same as with the HOA. But not only the owner of the premises, but any person or organization that has made a contribution can become a member of the cooperative. The document is drawn up in two copies. Upon termination of the contract, the owner’s responsibilities include concluding a similar contract with another organization.

Operational management of real estate will come into force after contacting Rosreestr to register the fact of transfer of rights. The period for registration of rights is 7 working days. If the transaction is made on the basis of notarized documents, the registration period will be reduced to 4 days.

The state fee for registration of rights has been established in the amount of 22 thousand rubles for organizations and 2 thousand rubles for individuals (Article No. 333.33 of the Tax Code of the Russian Federation).

An incorrectly drawn up operational management agreement is considered invalid.

With a small number of owners, they can independently manage the property. With this method of management, several owners, by decision of the general meeting, select organizations to provide services and maintain the building. Agreements with RSO are concluded by each owner in his own name. If relations with third parties are necessary, one of them or another person entrusted with these powers may act on behalf of the owners.

Form and content

There is no special form of agreement for owners of non-residential real estate; it will be the same as for owners of residential premises and the same for all management organizations. The main points of the agreement will be:

• subject of the contract;
• rights and obligations of the parties;
• cost of utilities;
• payment order;
• liability of the parties;
• validity period of the document;
• termination procedure;
• additions;
• addresses, details and signatures of the parties.

The procedure is considered completed after state registration, and the agreement comes into force.

Amendments to the contract

You can make changes to an already concluded and registered agreement in several cases:

1. If there was a violation of the terms of the contract by one of the parties. In this case, changes can be made unilaterally only through the court (Article No. 162 of the Housing Code of the Russian Federation).
2. By agreement of both parties.

Also, the contract can be changed if a law has been adopted establishing new rules for the parties that the concluded contract did not take into account.

Flooding and leakage in non-residential premises can cause serious damage to the property of its owner. What to do in case of flooding and how to fill out the report? You can learn about this and about the maintenance of common areas and the local area of ​​a non-residential building, about tariffs, calculations for heating non-residential premises in apartment buildings, and air temperature standards when supplying heat to radiators on the pages of our website.

What you can, should and are responsible for as the owner of non-residential premises

Lawyer Antonov A.P.

You have the right to own, use and dispose of your premises. Your main responsibility is to maintain it, in particular pay for utilities, and ensure its safe condition. If you fail to do this, you may be subject to administrative or civil liability. For example, they will recover damages caused to neighbors if you caused a fire in the premises. The specific list of rights and obligations depends on where your premises are located - in an apartment building or a non-residential building. For example, in an apartment building you do not need to pay tax on the land under the house.

1. Rights of the owner of non-residential premises Like every owner, you have the rights to own, use and dispose of property (clause 1 of Article 209 of the Civil Code of the Russian Federation). You also have the right to receive a payment if the land plot under the building in which your premises is located is seized for state or municipal needs (Decision of the Supreme Court of the Russian Federation dated November 20, 2018 in case No. 309-KG18-13252, A50-28633/2017). In addition, the scope of your rights depends, among other things, on where your non-residential premises are located - in an apartment building or a non-residential building. If the premises are located in an apartment building, you have most of the rights and obligations that the owners of apartments in this building have. You can, for example: use the common property of an apartment building: corridors, elevators, etc. (Parts 1, 2 of Article 36 of the RF Housing Code). However, you do not have the right to use it alone without the consent of other co-owners. For example, placing personal equipment on the common property of an apartment building (clause 26 of the Review of Judicial Practice of the Supreme Court of the Russian Federation No. 1 (2021)); enjoy the rights of a consumer of utility services. For example, require the contractor to check the quality of the provided utility services (clauses 2, 33 of the Rules for the provision of utility services); participate in general meetings of premises owners. For example, in order to choose a method of managing an apartment building, approve the amounts of certain contributions (Parts 1, 2, Article 44 of the Housing Code of the Russian Federation). If the premises are located in a non-residential building, you have the right, among other things: to buy or rent state or municipal land underneath it without holding an auction (clause 6, clause 2, article 39.3, clause 9, clause 2, article 39.6 of the Land Code of the Russian Federation); use the common property of the building in the same manner as the Civil Code of the Russian Federation establishes for participants in shared ownership and for owners of apartments in an apartment building (clause 1 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 23, 2009 N 64).

2. Responsibilities of the owner of non-residential premises You have a common duty for all owners - to bear the burden of maintaining their property (Article 210 of the Civil Code of the Russian Federation). The specific list of responsibilities differs depending on where your premises are located - in an apartment building or in a non-residential building. In an apartment building, you are obliged, in particular: to enter into direct contracts for the supply of utility resources with resource supply organizations (clause 6 of the Rules for the provision of utility services). That is, you cannot pay for utilities to the HOA or management company. If there is no such agreement, the volume of consumption may be determined for you as for unauthorized use (clause 6 of the Rules for the provision of utility services). As a rule, this is much more expensive than if you paid according to metering devices; bear the costs of maintaining common property in an apartment building, in particular, pay contributions for its major repairs (Part 1, Article 39, Part 1, Article 169 of the Housing Code of the Russian Federation). At the same time, there is no need to pay land tax for a land plot that is part of the common property (clause 6, clause 2, article 389 of the Tax Code of the Russian Federation); bring the premises to their previous condition if there was illegal redevelopment (Part 3 of Article 29 of the Housing Code of the Russian Federation).

In a non-residential building, in particular, you are obliged to: pay for utilities (Article 210, paragraph 1, Article 539, Article 548 of the Civil Code of the Russian Federation). Moreover, you must pay for them, even if you have rented out the premises, but the tenant has not entered into an agreement with the resource supply organization (see the Position of the RF Armed Forces); bear the costs of maintaining the common property of the building (Article 249 of the Civil Code of the Russian Federation). In particular, you will have to pay tax or rent for the land plot that is occupied by the building and is necessary for its use (clause 7, clause 1, article 1, clause 1, article 65 of the Land Code of the Russian Federation).

3. Responsibility of the owner of non-residential premises If you do not fulfill or improperly fulfill the duties of the owner of the premises, you may be brought to: 1) administrative liability. In particular, for violation of sanitary and epidemiological requirements for the operation of public premises (Article 6.4 of the Code of Administrative Offenses of the Russian Federation). For example, if you do not carry out daily cleaning in your retail premises (clause 10.1 SP 2.3.6.3668-20); 2) to civil liability. In particular, you may be charged: damages if damage was caused to third parties due to improper maintenance of the premises. For example, neighboring rooms were flooded (Article 15, 1064 of the Civil Code of the Russian Federation); penalties for late payment of utilities. For example, if you fail to pay for water supply on time, you are required to pay a penalty in the amount of 1/130 of the Bank of Russia refinancing rate of the debt amount for each day of delay (clause 30 of the Rules for cold water supply and sanitation). In some situations, criminal liability is possible, but only a sane individual who has reached a certain age can be brought to justice (Article 19 of the Criminal Code of the Russian Federation). For example, the head of an organization, if he systematically provided premises for illegal organization and (or) gambling (Article 171.2 of the Criminal Code of the Russian Federation).

Sincerely, lawyer Anatoly Antonov, managing partner of the law firm Antonov and Partners.

Still have questions for your lawyer?

Ask them right now here, or call us by phone in Moscow +7 (499) 288-34-32 or in Samara +7 (846) 212-99-71 (24 hours a day), or come to our office for a consultation (by pre-registration)!