The right to operational property management. Grounds for the emergence and termination of rights. Institutions and government enterprises

General provisions

The right of operational management is a limited property right under which property can be assigned to state-owned enterprises and institutions.

The right of operational management is understood as the right of an institution or a state-owned enterprise to own, use and dispose of the owner’s property assigned to it within the limits established by law in accordance with the goals of its activities, the owner’s assignment and the purpose of the property (Article 296 of the Civil Code of the Russian Federation).

The subjects of the right of operational management are institutions (private, autonomous, budgetary) or a state-owned enterprise (as a special type of unitary enterprise), the objects are property assigned by the owner to state-owned enterprises and institutions, as well as property acquired in the process of their production activities.

State registration of rights . Since the right of operational management refers to real rights, then, accordingly, the right of operational management of real estate arises from the moment of its state registration in the Unified State Register of Real Estate (Article 131 of the Civil Code of the Russian Federation, clauses 5, 6, Article 1, Article 14, and Federal Law dated July 13, 2015 N 218-FZ “On State Registration of Real Estate”).

Restrictions on the right of operational management . Subjects of operational management rights have the following restrictions:

the need to obtain permission from the owner for the sale of real estate and especially valuable movable items;
the owner has the right to withdraw excess, unused or misused property transferred to operational management (clause 2 of article 296 of the Civil Code of the Russian Federation, article 35 of the Federal Law of May 19, 1995 N 82-FZ “On Public Associations”, article 3 Federal Law of November 3, 2006 N 174-FZ “On Autonomous Institutions”, Article 19 of Federal Law of November 14, 2002 N 161-FZ “On State and Municipal Unitary Enterprises”).

Thus, the right of operational management limits the powers of its owner to the possibility of owning and using property in accordance with its intended purpose and areas of activity of the institution or enterprise. Subjects of the right of operational management have practically no opportunity to independently dispose of the property assigned to them; the owner can seize unused property or property used for other purposes.

Powers to dispose of the property of an institution and a state-owned enterprise . The right of operational management has the same legal nature as the right of economic management, but in terms of the scope of powers it is narrower than the right of economic management. Thus, state-owned enterprises and institutions exercise their powers within the limits established by law and the owner, in particular:

state-owned enterprises have the right to alienate or otherwise dispose of the property assigned to it only with the consent of the owner of this property, however, as a general rule, a state-owned enterprise has the right to independently sell the products it produces;
institutions are not vested with the right to alienate or otherwise dispose of the property assigned to them and property acquired from funds allocated to them according to the estimate. However, if an institution is granted the right to engage in entrepreneurial activities, it has the right to freely dispose of the income received, as well as property acquired with these incomes.

Burden of property maintenance . A person who owns property with the right of operational management is burdened with responsibilities for the maintenance of such property, similar to the responsibilities of the owner. The obligation to maintain the transferred property arises from the moment of registration of rights, and not from the moment of transfer of property. Until rights are registered, the owner bears the burden of maintaining the property.

Right of succession . The right of operational management, like the right of economic management, is characterized by such a feature of limited real rights as the right of succession. Thus, the transfer of ownership of property to another person is not grounds for termination of the right of operational management.

Grounds for termination of the right to operational management

Termination of the right of operational management is carried out on the grounds and in the manner provided for the termination of ownership rights, that is, these relations are subject to the rules of Chapter. 15 Civil Code of the Russian Federation. In addition, a special basis for termination of the right of operational management - the lawful seizure of property from an institution by decision of the owner (clause 3 of Article 299 of the Civil Code of the Russian Federation).

The grounds for termination of the right of ownership are the alienation by the owner of his property to other persons, refusal of the right of ownership, the death or destruction of property and the loss of the right of ownership of property in other cases provided for by law, including the forced seizure of property in accordance with the law (clause 1 and 2 Article 235 of the Civil Code of the Russian Federation).

These grounds are also grounds for termination of the right of operational management.

An additional basis for termination of the right of operational management is the refusal of the right of operational management with the consent of the property owner.

In addition to the above, the owner of the property has the right to withdraw excess, unused or misused property assigned by him to an institution or state-owned enterprise or acquired by an institution or state-owned enterprise at the expense of funds allocated to him by the owner for the acquisition of this property (Clause 2 of Article 296 of the Civil Code of the Russian Federation ).

Documents for registration

In order to formalize the operational management of an organization, it is necessary to provide the following list of documents to the registration authorities:

originals, as well as notarized copies of the constituent documents of the enterprise;
cadastral passport or plan of production and non-production premises;
an agreement containing information on the transfer of rights and powers relating to operational management;
a document containing information about property transferred to a third party or organization;
an act recording the acceptance of property by a trustee.

Recognition of the right of operational management

The real rights of a person who is not the owner of the property may be protected from their violation by any person in the manner provided for in Art. 305 of the Civil Code of the Russian Federation (clause 4 of Article 216 of the Civil Code of the Russian Federation).

In accordance with Art. 305 of the Civil Code of the Russian Federation, the rights provided for in Art. Art. 301 - 304 of the Civil Code of the Russian Federation (reclamation of property from someone else’s illegal possession and protection of the rights of the owner), also belong to a person who, although not the owner, owns the property, including with the right of operational management. This person has the right to defend his possession also against the owner.

As explained in paragraph 6 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 10, the Plenum of the Supreme Arbitration Court of the Russian Federation No. 22 of April 29, 2010 “On some issues arising in judicial practice when resolving disputes related to the protection of property rights and other property rights”, if a unitary enterprise or the institution has filed a lawsuit to recognize the right of operational management or to recover property from someone else’s illegal possession, the court must establish whether the disputed property is in state or municipal ownership and involve the owner of the unitary enterprise or institution in the case.

Thus, the law provides for the possibility of protecting the right of operational management, including such a method of protection as recognition of the right of operational management.

In the event of a legal dispute regarding such premises, the management authority must justify the calculation of the debt for housing and communal services

The appellate court, to which the government agency filed a complaint, considered that the first instance unreasonably proceeded from the proof of the fact that the institution provided housing and communal services. But in the case, the judge did not find materials that would confirm that the company provided the defendant with housing and communal services in the declared volume for the disputed amount.

According to the appellate instance, the plaintiff should have attached to the claim acts of acceptance and transfer of housing and communal services, agreements with RSO and contractors, payment orders and other documents.

The MA brought these documents, but the court of appeal did not accept them: the company could not justify the impossibility of presenting this evidence to the court of first instance for reasons beyond its control (clause 2 of Article 268 of the Arbitration Procedure Code of the Russian Federation). The judge did not attach them to the case materials and evaluate them, considering that:

according to Art. 65 of the Arbitration Procedure Code of the Russian Federation, each person participating in the case must prove the circumstances to which he refers as the basis for his claims and objections;
the parties to the dispute have the right to know about each other’s arguments before the start of the trial in order to exercise their right to petitions and explanations on this evidence;
persons participating in the case are responsible for the consequences of their commission or failure to perform procedural actions.

The Court of Appeal overturned the decision of the first instance and refused to allow the Management Authority to collect debts from the state-owned institution to pay for housing and communal services.

The Court of Cassation, having considered the complaint of the management organization, supported the previous instance. He pointed out that the company had not really proved that it had provided services to the defendant for the amount in dispute. In this case, new or additional evidence in the case is not accepted by the court of cassation (paragraph 2, 4, paragraph 30 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated June 30, 2020 No. 13). The UO’s requirements for a government institution have not been confirmed or justified.

Should compulsory medical insurance pay debts for housing and communal services on escheated property?

State-owned enterprise as a type of unitary enterprise

A unitary enterprise is a commercial organization that is not endowed with the right of ownership of property transferred to it by the owner (Article 113 of the Civil Code of the Russian Federation). The property of a unitary enterprise is in state or municipal ownership.

State-owned enterprises have the right of operational management of property , all other unitary enterprises have the right of economic management (Clause 2, Article 2 of Law No. 161-FZ “On State and Municipal Unitary Enterprises”).

A state-owned enterprise , as a type of unitary enterprise to which property has been transferred under the right of operational management, owns and uses this property within the limits established by law, and in accordance with the goals of its activities, the purpose of this property, and disposes of this property with the consent of the owner of this property (clause 1, Article 296 of the Civil Code of the Russian Federation).

The types of state-owned enterprises are: federal state-owned enterprise, state-owned enterprise of a constituent entity of the Russian Federation, municipal state-owned enterprise (Article 2, 19 of the Federal Law of November 14, 2002 N 161-FZ “On State and Municipal Unitary Enterprises”).

A state-owned enterprise of a constituent entity of the Russian Federation is established by a decision of a government body of a constituent entity of the Russian Federation, which, in accordance with the acts defining the status of this body, is granted the right to make such a decision.

A municipal government enterprise is established by a decision of a local government body, which, in accordance with the acts defining the status of this body, is granted the right to make such a decision (Clause 3, Article 8 of the Federal Law of November 14, 2002 N 161-FZ “On State and Municipal Unitary Enterprises” ).

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 (Clause 1 of Article 297 of the Civil Code of the Russian Federation).

Enterprise management

Operational management of an enterprise includes several components. So, the first of them is a set of actions regarding production and non-production costs, namely:

determination of the structure, as well as systematization of various types of costs in order to optimize and minimize them;
regular accounting and reporting both for internal use and for provision to the owner;
determination of the cost of manufactured products, as well as factors influencing it;
establishing the principles of the relationship between cost and net profit;
formation of a pricing policy that would allow obtaining the maximum result in monetary terms;
drawing up cost and expense plans, as well as constant monitoring of their implementation;
analysis of reporting indicators in order to improve work mechanisms.

It is also worth highlighting inventory management, which implies:

keeping records of inventory items in warehouses for the purpose of their constant replenishment and rational use;
determining the optimal system for placing production inventories within the boundaries of the enterprise (from a logistics point of view);
continuous monitoring of the quality and shelf life of raw materials and finished products to avoid non-production losses;
organization of control over the work of personnel involved in warehouse management.

6.1. Disposal of property of a state-owned enterprise

Paragraph 1 of Article 297 of the Civil Code of the Russian Federation establishes a general rule that the disposal of property transferred to a state-owned enterprise is carried out only with the consent of the owner of this property.

Paragraph 2 clause 1 art. 297 of the Civil Code of the Russian Federation establishes an exception to the general rule that the property of a state-owned enterprise can be disposed of only with the consent of the owner. This exception applies to products manufactured by the enterprise - they are sold independently, unless otherwise established by law or other legal acts. Otherwise, the sale of products would be difficult due to the need to obtain consent, which could negatively affect the effectiveness of the enterprise’s participation in civil circulation. The charter of a state-owned enterprise may provide for the types and (or) size of other transactions, the conclusion of which cannot be carried out without the consent of the owner of the property of such an enterprise. A state-owned enterprise has the right to dispose of the property belonging to it, including with the consent of the owner of such property, only to the extent that does not deprive it of the opportunity to carry out activities, the subject and goals of which are determined by the charter of such an enterprise.

According to paragraph 2 of Art. 297 of the Civil Code of the Russian Federation, the procedure for distributing income of a state-owned enterprise is established by the owner of its property. In more detail, relations related to the distribution of income of a state-owned enterprise are regulated by by-laws of the Russian Federation and constituent entities of the Russian Federation.

It is necessary to take into account that any state-owned enterprise carries out its activities in accordance with the program of activities and estimates of income and expenses approved in the prescribed manner by the authorized body. The income of a state-owned enterprise from the sale of its products (works, services) is the basis for financing the statutory activities of the enterprise. If the enterprise’s income is insufficient to cover the expenses provided for in the estimate of income and expenses, the authorized body, in accordance with the established procedure, finances targeted expenses related to the operation of the enterprise on a quarterly basis based on the results of the reporting period.

On a note

The question of from whom the management authority collects debts for payment of housing and communal services is not always simple. In many situations, the defendant in such a dispute is not the owner of the premises, but the tenant, tenant or user under the rental agreement. This could be social rent, hiring a specialized housing stock or social housing. In this case, building managers must understand what amounts to collect and from whom.

Also, as in the case considered, the defendant may be the institution under whose operational management the premises in the apartment building are located. And sometimes finding a defendant can be even more difficult: for example, if the owner died without leaving heirs, and the municipality is in no hurry to accept the escheated property.

This situation was analyzed by experts from the P1 Association in the section “Have you asked? We answer." We will publish a review of the most interesting topics and lawyers’ answers to questions from building managers, including on debt collection for “nobody’s” apartments, on the portal tomorrow. Stay tuned.

6.2. Responsibility of a state-owned enterprise

The specifics of the responsibility of a state-owned enterprise for its obligations at the federal level are determined by the rules of paragraph 6 of Art. 113 of the Civil Code of the Russian Federation, paragraph 3 of Art. 7 of the Federal Law of November 14, 2002 N 161-FZ “On State and Municipal Unitary Enterprises”, according to which the owner of the property of a state-owned enterprise bears subsidiary liability for the obligations of such an enterprise if its property is insufficient.

For this special type of subsidiary liability, the general rules on subsidiary liability provided for in Art. 399 of the Civil Code of the Russian Federation, distributed with the enshrined art. 113 of the Civil Code of the Russian Federation features.

The basis for bringing the owner of the property of a state-owned enterprise to subsidiary liability is not only the fact of failure by the main debtor to fulfill the obligation, but also the insufficiency of the property of the state-owned enterprise.

At the same time, for imposing this kind of subsidiary liability, the presence or absence of guilt of the owner of the property of a state-owned enterprise does not matter

Institutions. Types and types of institutions

An institution is recognized as a unitary non-profit organization created by the owner to carry out managerial, socio-cultural or other functions of a non-commercial nature (Clause 1 of Article 123.21 of the Civil Code of the Russian Federation).

The majority of educational, scientific, healthcare, cultural and sports organizations currently operate in the organizational and legal form of the institution. Examples of such organizations are theatre, school, hospital.

The founder is the owner of the property of the institution he created. For property assigned by the owner to an institution and acquired by the institution for other reasons, it acquires the right of operational management in accordance with the Civil Code of the Russian Federation (Article 123.21 of the Civil Code of the Russian Federation).

An institution can be created by a citizen or legal entity (private institution) or, respectively, by the Russian Federation, a subject of the Russian Federation, or a municipal entity (state institution, municipal institution).

Depending on the form of ownership of the property assigned to the institution, types of institutions (state, municipal, private) (Articles 123.22, 123.23 of the Civil Code of the Russian Federation).

An institution can have only one founder , that is, when creating an institution, co-founding by several persons is not allowed.

In the Russian Federation, there are several types of institutions to which property can be transferred under the right of operational management. Such institutions are:

autonomous institution (Articles 2, 3 of the Federal Law of November 3, 2006 N 174-FZ “On Autonomous Institutions”);
public institution (Article 11, 35 of the Federal Law of May 19, 1995 N 82-FZ “On Public Associations”);
budgetary institution (Article 9.2 of the Federal Law of January 12, 1996 N 7-FZ “On Non-Profit Organizations” (as amended on June 2, 2016)).
private institution (Article 123.23 of the Civil Code of the Russian Federation).

There are three types of state and municipal institutions (clause 1 of article 123.22 of the Civil Code of the Russian Federation):

government;
budgetary;
autonomous.

The founder of the institution appoints its head, who is the body of the institution. In cases and in the manner prescribed by law, the head of a state or municipal institution may be elected by its collegial body and approved by its founder.

By decision of the founder, collegial bodies reporting to the founder may be created in the institution. The competence of the collegial bodies of the institution, the procedure for their creation and the adoption of decisions by them are determined by law and the charter of the institution.

Registration procedure

In some cases, it may be necessary to transfer your property to third parties and organizations. Operations management is one of the best options. The registration procedure for this type of relationship involves the following steps:

examination of the authenticity and correctness of documents submitted by both the owner and the authorized representative;
a request to government authorities to obtain permission to register an operational management;
conducting an examination and technical inventory of property objects regarding which contractual relations will be concluded;
registration of operational management with specialized government bodies and obtaining relevant documents.

7.1. Disposal of the institution's property

A private institution is completely deprived of the right to dispose of property assigned to it by the owner or acquired from funds allocated to it by the owner (Clause 1 of Article 298 of the Civil Code of the Russian Federation). A different legal regime applies to income received by a private institution from economic activities permitted by the constituent documents - property acquired from these incomes comes to the independent disposal of the private institution. However, this does not mean the emergence of a separate property right to the specified income: they are accounted for separately, but are also objects of the right of operational management of a private institution.

An autonomous institution has the right to dispose of the property assigned to it, however, how free the institution is in the exercise of this power depends on the type (category) of property. 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 established by the law of November 3, 2006 “On Autonomous Institutions.”

An autonomous institution is also free to exercise the power to dispose of income from income-generating activities, if these activities are carried out in accordance with the charter and do not contradict the goals for which the institution was created. At the same time, the possibility of independent disposal extends to both any movable and immovable property acquired from the above income.

A budgetary institution has the right to dispose of the property assigned to it. As in the case of an autonomous institution, the terms of disposal depend on the type (category) of property. Without the consent of the owner, he has no right to dispose of particularly valuable movable property assigned to him by the owner or acquired by a budgetary institution at the expense of funds allocated to him 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 (Article 9.2 of the Law of January 12, 1996 N 7-FZ “On Non-Profit Organizations”).

The difference from an autonomous institution with regard to the right to dispose of property is that an autonomous institution cannot dispose only of real estate transferred by the owner or acquired at the expense of the owner, and a budgetary institution does not have the right to dispose of real estate, regardless of the source of acquisition - the founder’s funds or its own funds.

Particularly valuable movable property means movable property, without which it will be significantly difficult for an autonomous or budgetary institution to carry out its statutory activities.

To recognize movable property as particularly valuable, it is not necessary that statutory activities in the absence of said property be absolutely impossible; it is sufficient that there are grounds to assume that it will be significantly difficult. The disadvantage of this criterion is its evaluative nature, since the institution’s need for certain property is not always obvious. However, the likelihood of disputes arising is minimal, since the decision to classify movable property as particularly valuable is made simultaneously with the decision to assign the specified property to an autonomous or budgetary institution or to allocate funds for the acquisition of such property.

Establishing the procedure for classifying movable property as especially valuable is entrusted to the Government of the Russian Federation. It was established by Decree of the Government of the Russian Federation of July 26, 2010 N 538 “On the procedure for classifying the property of an autonomous or budgetary institution as a particularly valuable movable property.” For example, for federal autonomous and budgetary institutions, the amount of the value of especially valuable movable property is established by the federal government bodies exercising the functions and powers of the founder in relation to the corresponding federal autonomous and budgetary institutions in the range from 200 thousand rubles to 500 thousand rubles.

Another criterion for classifying movable property as particularly valuable is the special procedure for alienation established by laws and other regulatory legal acts of the Russian Federation. Directly by law, this category includes museum collections and objects that are in federal ownership and included in the state part of the Museum Fund of the Russian Federation, library collections classified in the prescribed manner as monuments of history and culture, and documents from the Archive Fund of the Russian Federation.

Since the essence of restrictions on the disposal of the property of an autonomous or budgetary institution is to preserve the possibility of carrying out statutory activities, it cannot be classified as particularly valuable property that is not intended to carry out the main activities of an autonomous (budgetary) institution. In addition, the regime of especially valuable property cannot be extended to property acquired at the expense of one’s own income received from activities carried out in accordance with the charter.

State institutions have the least amount of powers. They have no right to alienate or otherwise dispose of property without the consent of the property owner. Such an institution carries out all operations through personal accounts opened to it in accordance with the Budget Code of the Russian Federation.

A government institution can carry out income-generating activities in accordance with its constituent documents, however, income received from these activities must be directed to the appropriate budget (Clause 4 of Article 298 of the Civil Code of the Russian Federation, Article 161 of the Budget Code).