Property management involves not only its operation, but also its sale if it is impossible to obtain at least zero financial results from its use. Autonomous institutions maintain property not used to carry out government tasks at their own expense. For many of them, getting rid of such objects is not only a matter of increasing efficiency, but also of survival. But can the AC initiate the return of unused property to its owner? Are institutions given this right? What circumstances may complicate the procedure for returning property to the treasury? More on all this later in the article.
What it is?
The right to operational management of real estate is a limited right for institutions and state-owned enterprises to dispose of the property assigned to them in accordance with the law or with the consent of the owner.
That is, if an organization is assigned a building, land, equipment or a car, it does not have the right to dispose of them at its own discretion.
The institution uses the assigned real estate free of charge . This scheme most often works:
- schools;
- kindergartens;
- palaces of culture;
- hospitals;
- housing and communal services enterprises, etc.
According to paragraph 1 of Art. 296 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation), an institution and a state-owned enterprise, to which property is assigned by the right of operational management, own and use this property within the limits established by law, in accordance with the goals of their activities, the purpose of this property and, unless otherwise established by law, dispose of this property with the consent of the owner of this property. In accordance with clauses 1, 2 of Art. 299 of the Civil Code of the Russian Federation, the right of operational management arises on the basis of an act of the owner assigning property to the institution, as well as as a result of the acquisition of property by the institution under a contract or other basis.
Fruits, products and income from the use of property under the operational management of the institution, as well as property acquired by the institution under an agreement or other grounds, enter the operational management of the institution in the manner established by the Civil Code of the Russian Federation, other laws and other legal acts for the acquisition of property rights. force of paragraph. 5 p. 1 art. 216 of the Civil Code of the Russian Federation, the right of operational management refers to the property rights of persons who are not owners. In this regard, the right of operational management of real estate arises from the moment of their state registration. Art. Art. 297, 298 of the Civil Code of the Russian Federation clearly regulates the limits of the powers of various institutions and state-owned enterprises to dispose of property. Thus, a state-owned enterprise has the right to alienate or otherwise dispose of the property assigned to it only with the consent of the owner of this property. A state-owned enterprise independently sells the products it produces, unless otherwise established by law or other legal acts. A private institution does not have the right to alienate or otherwise dispose of property assigned to it by the owner or acquired by this institution at the expense of funds allocated to it by the owner for the acquisition of such property. A private institution has the right to carry out income-generating activities only if such a right is provided for in its constituent document, while the income received from such activities and the property acquired from these incomes are at the independent disposal of the private institution. An autonomous institution, without the consent of the owner, has no right to dispose of real estate and especially valuable movable property assigned to it by the owner or acquired by the autonomous institution at the expense of funds allocated to it by the owner for the acquisition of such property. The autonomous institution has the right to dispose of the remaining property that it has under the right of operational management independently, unless otherwise provided by law. An autonomous institution has the right to carry out income-generating activities only insofar as it serves the purposes for which it was created and is consistent with these purposes, provided that such activities are specified in its constituent documents. Income received from such activities and property acquired from these incomes shall be at the independent disposal of the autonomous institution. A budgetary institution, without the consent of the owner, has no right to dispose of particularly valuable movable property assigned to it by the owner or acquired by the budgetary institution at the expense of funds allocated to it by the owner for the acquisition of such property, as well as real estate. The budgetary institution has the right to dispose of the remaining property that it has under the right of operational management independently, unless otherwise provided by law. A budgetary institution has the right to carry out income-generating activities only insofar as it serves to achieve the goals for which it was created and corresponds to these goals, provided that such activities are specified in its constituent documents. Income received from such activities and property acquired from these incomes are at the independent disposal of the budgetary institution. A government agency does not have the right to alienate or otherwise dispose of property without the consent of the property owner. A government institution may carry out income-generating activities in accordance with its constituent documents. Income received from these activities goes to the corresponding budget of the budget system of the Russian Federation. According to paragraph 2 of Art. 300 of the Civil Code of the Russian Federation, when transferring ownership rights, when transferring ownership rights to an institution to another person, this institution retains the right of operational management of the property belonging to it. The right to operational management of property is terminated on the grounds and in the manner provided for by the Civil Code of the Russian Federation, other laws and other legal acts for termination of ownership rights, as well as in cases of lawful seizure of property from an enterprise or institution by decision of the owner (Clause 3 of Article 299 of the Civil Code of the Russian Federation) .
Goals and objectives
There are several reasons why real estate is transferred to operational management.
- The most important thing is maintaining objects in a healthy state. It happens that some building has stood idle for a long time, while the local cannery is huddled in a one-story small house. In this case, it is beneficial to transfer the building to the plant so that it can service it and keep it in good technical condition.
- If we are talking about real estate from a private owner, then he transfers his property to operational management with one purpose - so that it begins to “work” and bring in money. The question of functional fitness fades into the background. The object may be returned to the owner after some time: it is impossible to sell, give or lease real estate in the OU.
The director of an enterprise, after receiving the right to operationally manage real estate, sets himself several tasks - his income and the income of his employees will depend on their implementation.
- Facilities must have their own structure: an enterprise, in addition to the building, must have equipment and transport, a school must have a football field and sports equipment on the street.
- Objects must be profitable: if it is production, it must generate income and not buy expensive equipment every year; if it is a school, it must not make repairs in the director’s office every year, unnecessarily.
- In general, the costs of maintaining and operating facilities with such management must be reduced. Regularly maintain and maintain equipment.
Each enterprise or government institution has its own priorities for completing these tasks.
Transfer of real estate to the OS
Real estate is assigned to institutions or enterprises by their owner. Most often this is state property. Therefore, the decision on the transfer is made by the body authorized to manage municipal facilities.
The decision can be in the form of an act, order or other regulatory document:
- After the decision to secure the object, you need to draw up a document about its actual transfer - an act of acceptance and transfer.
- After this, the property is removed from the balance sheet of the municipality and goes through the procedure of its state registration for operational management.
- The institution or enterprise receives a standard certificate of successful registration.
Registration
The legal ability to use real estate for an enterprise or institution arises only after appropriate state registration.
To go through this procedure, you need to draw up an appropriate agreement and collect a package of documents.
Agreement
In order to transfer state or municipal real estate to the operational management of the relevant body, you need to obtain the appropriate permission and order from the head of the municipality or government agency. After which you can conclude an agreement.
A written agreement on the basis of which one party transfers property for management to the other party is concluded by government institutions (or enterprises) and the owner of the property (state, municipality or private individual).
The right holder, the legal representative of the owner of the premises, a notary or a legal entity that has received the right of operational management has the right to conclude an agreement.
Real estate becomes on the balance sheet of a legal entity, taxes and other fees must be paid for it. The document must indicate:
- subject of the contract;
- duration of the contract;
- procedure for transfer of property;
- data of both parties;
- information about property;
- conditions for making changes and additions to the contract;
- conditions for early termination of the contract;
- details and signatures of the parties, sealed.
We do not recommend completing the documents yourself. Save time - contact our lawyers by phone:
8 (800) 302-76-94
If the cadastral value of the property has not been determined, it is necessary to conduct a real estate appraisal.
Sample contracts can be found freely available on the Internet and you can draw it up yourself or seek help from qualified lawyers.
What documents should be attached to the contract?
Along with the agreement, the following package of documents must be submitted to the Unified State Register of Real Estate Rights Registration.
- application for registration;
- extract from the Unified State Register of Legal Entities;
- constituent documents of the organization (certificates of registration, assignment of statistics codes to the institution, etc.);
- passports of representatives of the parties;
- deed of transfer;
- cadastral and technical passports;
- a document confirming the assignment of the allocated facility to a specific enterprise;
- a certified copy of the order authorizing the transfer of property to operational management;
- a certificate stating that the property is no longer on the balance sheet of the municipality or owner.
Cost and terms of service provision
The registration service is free . The period for making a decision on granting rights is 7 working days.
Real estate management is the implementation of a set of operations related to the operation of buildings and structures. Read our articles about managing apartment buildings, as well as who to transfer real estate to trust management and how to do it, what are the distinctive features of managing residential real estate at the operational stage and legislative norms.
Operational property management is: when necessary, types
Operational property management is a narrow-branch property law; it is regulated by the Civil Code of the Russian Federation, its Art. 269.
Such an object of property is in the possession of the state or municipality; its disposal is possible only with the permission of the owner. The procedure for such management must be registered in accordance with the law.
What is interesting is this concept, as well as the scheme of doing business, is used only in post-Soviet countries.
Concept and types of rights
Before understanding this concept, you should understand what real rights are in general. According to the law, every person has property and liability rights. In this aspect, we should consider the special features of the rights that interest us, among them:
- This is an absolute right. That is, it means that a person who owns something, as opposed to other people who are not the true owner of such property. According to the law, this huge number of people do not have the right to violate the powers of the true owner.
- It can only be recognized if it is prescribed by law and provided for by it.
- An object can only be one single thing; its parameters and application in this case do not matter.
Now we can consider operational management as a limited property right; it differs in the amount of powers that the owner has. In this case, something is owned by one person and at the same time it is also in the possession of another person, but the possibilities of management are limited.
Important! Such rights may arise outside the will of the owner, as a result of the action of the right of succession, when rights follow the thing.
Designation
Operational management is the right to manage a business and is derived from the right of ownership. It can only be used by a legal entity. To put it simply, the point is that property owned by a municipality or government agency can be used as necessary, that is, the right to such actions is transferred to another person, although they are limited.
The owner or director of the enterprise has the following rights:
- Creating tasks and setting deadlines for their completion.
- Making changes to the organizational structure.
- Control of organizational processes.
- Control over the correctness and legality of the use of property.
- Appointment of management personnel, who can also be a supervisory body from the state.
There are also clear limitations to this format of state property management, including:
- Sales operations, including individual objects.
- Rental.
- Use as collateral for lending.
Important! If you obtain permission from the primary owner, that is, the state, even such actions may be permitted.
Among other features, the following should be highlighted:
- Subjects cannot be divided into parts and shares; they are transferred to the manager only as a single whole.
- The manager is responsible for the entrusted property; in addition, it is on the balance sheet of his enterprise.
- The person carrying out the management in question is still subordinate to the primary owner.
Limited right
This is exactly what can be said about operational management; among the most important features are the following:
- Only state-owned and most often manufacturing enterprises can be managed in this way; the property is owned by the state directly or through the municipality.
- The operational manager manages property, but only in the area where the enterprise operates. Sometimes adjustments to certain actions occur due to the instructions of the owner.
- It is impossible to dispose of the entrusted property without the consent of the state. The only thing that is possible is to sell the products produced.
Functions and tasks of the manager
The one who stands at the helm of operational management has certain functional tasks that, upon becoming the owner, he is obliged to perform. He is also given specific tasks for which he bears responsibility.
Functions
Among them are:
- Coordination of the work of all structural divisions. If we consider a full-cycle manufacturing enterprise, then the manager’s functions include order processing, communication with production facilities, and sales of finished goods.
- Work with document flow. In this case, the operational manager is responsible, and not the final owner, that is, all the necessary papers, in particular reports, must be prepared in a timely manner, otherwise liability under the law cannot be avoided.
- Planning. Managers control the deadlines for completing assigned tasks. In addition, the owner must be provided with a report.
- Production management, including quality control of manufactured goods.
- Accounting for costs that cannot be eliminated and their adequate justification.
- The technical component for performing production tasks, that is, equipping with all the necessary units, accounting, safety and dispatch of manufactured goods.
- Inventory accounting and timely procurement of raw materials.
Tasks
The tasks that are set before the operational owner are numerous, but the main one is to make production profitable. Among the key tasks that contribute to this:
- Determining the volume of goods produced that can be produced at existing facilities.
- Selecting a production location based on the price-quality parameter.
- Coordination of orders received by the enterprise.
- Issuing assignments for work.
- Establishing adequate deadlines for completion.
- Monitoring compliance with rules and deadlines.
- Ensuring maximum operational efficiency.
How to rent property under such management?
Not every property under operational management is difficult to rent, but there is a procedure that allows you to do this. The owner’s powers are delegated, therefore, at his own discretion, he cannot dispose of what he manages and rent it out or sell it.
Important! It is necessary to discuss the possibility of leasing such property with government agencies, that is, the actual owners.
The procedure is like this:
- A petition addressed to the owner (state) for the opportunity to receive the property for rent. Moreover, the circle of interests can only include assets that are not currently involved.
- An explanatory note should be attached to such a request; it indicates: the characteristics of the building, the premises that are of interest, the reasonable feasibility of renting and its impact on the operation of the enterprise.
If the state/municipality is satisfied with the arguments, then a lease agreement is signed. Finance proceeds from leasing are sent to the enterprise as auxiliary budget financing.
Transfer of property under operational management
In order for the fact of transfer of property under operational management to be recorded, it is necessary to perform the following manipulations:
- Drawing up a transfer and acceptance certificate in accordance with the requirements of the law.
- Certification of the act. Both parties do this, after which the forms are registered.
- Only after this the premises/building are transferred to the balance sheet of the operational manager.
Conclusion
Although operational management is currently actively used in our country, the standards that are currently prescribed in the law are outdated. Management capabilities are limited, but it is thanks to the transfer of management to a legal entity that state property (enterprises) can operate and generate income.
Source: https://Papinian.com/grazhdanskoe/chto-takoe-operativnoe-upravlenie-imushhestvom.html
