Since today, for the most part, residential premises are personal property, partnerships are becoming popular, which themselves make decisions on the management of property belonging to an apartment building (for example, basements, attics, local areas, etc.).
A partnership of real estate owners can be created not only for the joint use of one apartment building, but also for the preservation, maintenance, expansion of the property of several apartment buildings, and the provision of utilities to residents, subject to:
- close proximity of houses with a common border of land plots;
- the presence of general communication systems for engineering and technical support (gas pipeline, water supply and central heating supply pipelines, etc.).
All issues related to housing are regulated by the norms of the Housing Code, as amended, as last amended on January 22, 2019. At the annual meeting of owners of the premises of an apartment building or at an extraordinary meeting, on the initiative of any owner, the charter of the HOA is adopted by counting a majority of votes. It is important to understand that the Charter of the partnership is one of the fundamental documents that defines the main functions, powers and responsibilities of the organization, starting with establishing the procedure for convening and holding a general meeting, notifying members of the HOA about the time, day and place of its holding, and the agenda.
The draft Charter should stipulate:
- who has the right to initiate the convening of a meeting;
- powers of the audit commission;
- the procedure for making changes and additions to the current charter of the partnership.
In connection with the amendments to Chapters 13, 14 of the Housing Code of the Russian Federation, the exclusion of certain articles and the inclusion of a new one, in particular, defining the rights of members of the homeowners’ association and those who are not such, in addition, changes to the rules governing the holding of general meetings, unless changes are made to the adopted earlier the charter, there is a clear threat of forced liquidation of the HOA.
For information
State supervisory authorities have the right to apply to the court for the liquidation of the partnership if, during the inspection, a discrepancy between the charter and the norms of the current legislation is revealed and the shortcomings are not eliminated within the time period established by the order.
Documents required for HOA registration
An HOA, created at the request of more than 50% of the homeowners of one apartment building or 2/3 of the owners if we are talking about several apartment buildings, is a non-profit organization and must certainly be officially registered as a legal entity in the manner prescribed by law. First of all, you need to hold a general meeting of owners, and if more than half of them vote for the creation of a partnership, in order to independently resolve issues related to the management of an apartment building, it is important to collect all the signatures in the minutes of the meeting indicating information about those present. The initiative group is preparing a package of necessary documentation:
- HOA charter;
- minutes of the meeting where the decision to create the partnership was made;
- fills out a special form, which is essentially a statement of desire to register an HOA, which contains information about the persons who voted at the general meeting for the creation of a homeowners’ association, about the shares owned by these persons in the right of common ownership of common property in an apartment building;
- a receipt confirming payment of the state duty.
The person authorized by the meeting personally takes the documents to the territorial office of the tax inspectorate.
The decision is made within 5 days after the application. If the answer is positive, the HOA is registered with the tax office and the relevant documents are issued - a OGRN and TIN certificate.
Have a question for a lawyer?
Hello. This amendment to the Charter still falls within the competence of the general meeting
Article 44. General meeting of owners of premises in an apartment building
2. The competence of the general meeting of owners of premises in an apartment building includes: 4) choosing a method of managing the apartment building; Article 136. Creation and state registration of a homeowners’ association
1. Owners of premises in one apartment building can create only one homeowners’ association. The decision to create a homeowners' association is made by the owners of premises in an apartment building at their general meeting. Such a decision is considered adopted if it is voted for by the owners of premises in the corresponding apartment building, having more than fifty percent of the votes of the total number of votes of the owners of premises in such a building.
5. When state registration of a homeowners’ association, the minutes of the general meeting of owners of premises in an apartment building, at which decisions were made on the creation of the partnership and the approval of its charter, and the charter of the partnership, as well as information about the persons who voted at the general meeting of owners of premises in an apartment building are submitted for the creation of a homeowners’ association, about the shares belonging to these persons in the right of common ownership of common property in an apartment building. then could this not entail the cancellation of registration in the Unified State Register of Legal Entities, since the presented Charter was with illegal changes? Dmitriy
This is quite possible in this case, since the chairman is not vested with the right to make changes to the charter, just like the board.
In accordance with Article 135 of the Housing Code of the Russian Federation:
The charter of the homeowners' association is adopted at a general meeting, which is held in the manner established by Articles 45 - 48 of this Code, by a majority vote of the total number of votes of the owners of premises in an apartment building.
This means that changes to the charter must be made by a meeting of homeowners and documented in the minutes of the meeting.
But apparently, the changes were made without holding a meeting, and were registered in the Unified State Register of Legal Entities, which means there were minutes of the meeting on hand, otherwise the tax inspectorate would not have made the necessary changes without it.
For registration with the Federal Tax Service the following is provided:
application in form P 13001; a document confirming payment of the state fee; two copies of changes or new edition of the charter; minutes of the general meeting at which a decision was made to register the relevant changes.
In accordance with Article 138 of the Housing Code of the Russian Federation:
10) submit to the authorized executive bodies of the constituent entities of the Russian Federation, specified in Part 2 of Article 20 of this Code, within three months from the date of state registration of changes made to the charter of the partnership, a copy of the charter of the partnership, an extract from the minutes, certified by the chairman of the partnership and the secretary of the general meeting of members of the partnership, general meeting of members of the partnership on making a decision to amend the charter of the partnership with copies of the texts of the relevant changes certified by the chairman of the partnership and the secretary of the general meeting of members of the partnership.
Consequently, if this is so, then the minutes of the general meeting were also drawn up illegally without holding the meeting itself.
Making changes to the Unified State Register of Legal Entities on the basis of documents that do not comply with the law may be the basis for demands from an interested person (a member of the HOA, a party to an agreement) to have the court recognize as illegal the entry on the state registration of changes in the information of the Unified State Register of Legal Entities.
I hope that I could help you resolve the issue. I wish you success!
Good afternoon, Dmitry!
Is it legal to make such a change to the Charter (from HOA to TSN) without approval of these changes by the meeting of owners, and if not, could this not entail the cancellation of registration in the Unified State Register of Legal Entities, since the submitted Charter had illegal changes? Dmitriy
According to Article 3 of Federal Law No. 99-FZ dated 05.05.2014 (which introduced the concept of “TSN”):
7. Constituent documents, as well as the names of legal entities created before the entry into force of this Federal Law, are subject to compliance with the norms of Chapter 4 of the Civil Code of the Russian Federation (as amended by this Federal Law) upon the first change in the constituent documents of such legal entities. The constituent documents of such legal entities, until they are brought into compliance with the norms of Chapter 4 of the Civil Code of the Russian Federation (as amended by this Federal Law), are valid to the extent that they do not contradict these norms.
Therefore, there was no need to specifically change the name of your HOA to TSN.
However, if you nevertheless decide to change the name from HOA to TSN, then this will be an amendment to the constituent documents, so holding a general meeting of the HOA, I think, is mandatory.
The law does not indicate that the chairman of the HOA can single-handedly make any changes to the constituent documents of the HOA, even the most insignificant ones.
You, as a member of the HOA, can file a lawsuit to declare the changes made invalid. However, if, in addition to changing the name from HOA to TSN, the chairman did not make any other changes, then your rights, in fact, have not been violated in any way - the new name has simply been brought into line with the Civil Code of the Russian Federation. Therefore, you only have formal grounds; it is possible that the court will reject the claim.
With respect, Roman.
How are the HOA charter adopted?
To adopt the charter of the HOA (or make changes to it), they are guided by the norms of Art. 45-48 Housing Code of the Russian Federation. At the proposal of the board of the partnership or a group of active owners, no later than 10 days before the scheduled date, in writing under a personal signature or by registered mail with return receipt requested, each owner of an apartment building is sent a notice of the decision to hold a general meeting, indicating:
- who is the initiator;
- in what form the meeting will be held;
- date, month, year, exact time and place of meeting of the owners (or where the data should be transferred if it is decided to conduct an absentee survey);
- pressing agenda;
- in what order can you get acquainted with the documentary materials?
The meeting is considered valid if more than 50% of apartment owners or their representatives take part in it. It is important to pay attention to the fact that the decision made by counting the votes of the present owners also applies to the owners of residential premises who did not participate in the meeting or who voted “against”.
Mandatory provisions of the HOA charter
Since the charter is an official document, taking into account the provisions of which a decision will be made to register the partnership as a legal entity that has a number of powers and is responsible to the owners and government supervisory authorities, it must be drawn up accordingly. It is necessary to establish in the document the current areas of activity of the homeowners’ association and the planned sources of income, including the rental of premises to generate profit for the common needs of all apartment owners. In the future, it will not be possible to carry out work not specified in the charter or refuse to fulfill the duties prescribed in it.
The charter of the homeowners association, despite the fact that a mandatory requirement is not specified anywhere, must be printed using modern office equipment.
A copy of the document, which will remain with the tax office upon registration, must be notarized.
On the first page the document is titled, including the words “homeowners association.”
Indicate:
- location (postal address of the apartment building whose owners decided to create a community);
- the subject and purpose of his activity (one of the main ones is the operation of an apartment building);
- the procedure for the emergence and termination of membership in a homeowners association;
- composition and competence of the management bodies of the partnership (the ability to make transactions on behalf of the owners of residential premises);
- decision-making procedure;
- issues that can be decided unanimously or by counting a majority of votes;
- which of the owners is part of the audit commission, the competence of the auditors;
- other information within the framework of current legislation.
- As a rule, the types of future activities of the partnership include:
- management of an apartment building;
- signing electricity supply contracts and agreements for the provision of other utility services to residents;
- organizing activities aimed at maintaining the safety of common property and carrying out repair work;
- organization of landscaping of the local area;
- ensuring compliance with the rights of residential premises owners.
Features of the new edition of the standard HOA charter: sample, content and procedure for making changes
- homeowners are renamed real estate owners, therefore the abbreviation of the partnership is redesignated as TSN;
- the partnership is registered as a non-profit corporate organization for which business activities are provided only for the common benefit of the owners of the premises;
- the obligation of owners to pay monthly fees in proportion to the square meters they own for major repairs, for which a unified state system for collecting funds has been created;
- the possibility of organizing a supervisory board of members of the partnership, whose responsibilities will be to monitor the work of the HOA board.
- standard HOA Charter
- HOA Charter
Contents of the document
According to the order of the Ministry of Culture of the Russian Federation N 558 dated August 25, 2010, the charter must be stored in a safe at the board’s premises for the entire duration of the partnership’s existence and its functioning as a legal entity, and after the liquidation of the HOA, the document is transferred to the archive.
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16.1. The Chairman of the Board is elected from among the members of the Board of the Partnership for a period equal to two calendar years by the Board of the Partnership no later than 10 calendar days after the election of members of the Board at the General Meeting of Members of the Partnership. The Chairman of the Board is considered elected if a majority of the members of the Board from the total composition of the Board of the Partnership vote for him.
The final version of the charter is approved by the head of the given management organization. In order to give it legal force, it is necessary to carry out its state registration in the unified state register of legal entities. persons This occurs at the time of submitting documents for registration of a newly created legal entity.
New charter of the homeowners association, taking into account changes in 2020, sample
And we do this not in order to obtain a quorum, but in order to have additional evidence in our defense in case of legal disputes. We buy the newspaper with the advertisement and keep it in the affairs of the partnership. We photograph the announcement on the board with the date and also store it. We send notification letters only with an inventory, indicating in it who, what and what the helmet is about. We keep the inventory with the receipt.
5.2. The funds of the Partnership consist of: 1) obligatory payments, entrance and other contributions of members of the Partnership; 2) income from the economic activities of the Partnership aimed at achieving the goals, objectives and fulfillment of the obligations of the Partnership; 3) subsidies to ensure the operation of common property in an apartment building, carrying out current and major repairs, providing certain types of utilities and other subsidies; 4) other income.
Nuances to pay attention to when preparing and adopting the charter
When preparing the charter, we recommend using the services of a lawyer competent in the issues of drafting constituent documents. When accepting the charter, you can not only enter the required information on the standard form, but also add your own points in relation to a specific situation, for example:
- providing for the transfer of powers to elect the Chairman of the Board to the general meeting of HOA members, which will make the chairman less dependent on the members of the board and more dependent on all members of the HOA;
- on the procedure for holding a joint meeting of HOA members and home premises owners;
- use of a system or other information system when resolving issues related to management in a homeowners’ association, taking into account the functions of these systems;
- proportional representation on the Board of representatives of all entrances of the house;
- include a representative of the owners of non-residential premises on the HOA board.
Important!
During the period of time while the charter of the partnership is being prepared, documents are being submitted for approval and state registration, the main issues must be resolved in the prescribed manner by holding general meetings of the owners of the premises. For example, this applies to:
- house reconstruction;
- use of land or common property;
- re-election of the board and chairman;
- voting procedure;
- the amount of payment for the maintenance and repair of residential premises.
What to do if not all owners agree with certain provisions of the charter?
If a decision was made by a majority vote to create a partnership, and the meeting participants voted for the proposed charter, in case of objections from individuals, you can invite them to express their reasonable arguments in writing, after which adjustments to the charter are made, or the chairman of the general meeting refuses, indicating the reasons for the decision. solutions.
Since every person has the right to protect their interests, homeowners have the right to file complaints with the state housing inspectorate with a request to verify the compliance of the HOA charter with the norms of current legislation, and to familiarize themselves with reports on the activities of the partnership.
Attention
The powers of the HOA:
- conclude agreements regarding management, including maintenance and repair of common property;
- determine the estimate of income and expenses for the coming year, making special contributions by the owners to the reserve fund for the purposes specified in the charter of the partnership;
- pay for services provided to the partnership in cash or transfer material assets in accordance with contractual terms;
- in accordance with the procedure established by law, take out loans from a bank:
- provide services and perform work for residential property owners;
- dispose of the property of the partnership without violating the interests of home owners;
- And so on.
At the same time, if one of the owners who does not agree with the organization of the HOA does not fulfill the agreed obligations to participate in common expenses or to pay mandatory payments, contributions, the association of owners has the right to legally demand compensation for all amounts due and damages incurred. .
HOA Charter 2020 (simple version)
9.2. The Board of the Partnership has the right to make decisions on all issues of the activities of the Partnership, with the exception of issues falling within the exclusive competence of the General Meeting of owners of premises in an apartment building and the competence of the General Meeting of members of the Partnership.
The procedure for becoming a member of the Partnership and leaving it; contributions
3.1. The partnership has the right: 1) to enter into, in accordance with the law, an agreement for the management of an apartment building and other agreements ensuring the management of the apartment building, including the maintenance and repair of common property in the apartment building; 2) determine the estimate of income and expenses for the year, including the necessary expenses for the maintenance and repair of common property in an apartment building, costs for major repairs and reconstruction of an apartment building, special contributions and deductions to the reserve fund, as well as expenses for other expenses established by the Charter of the Partnership goals; 3) establish, on the basis of the accepted estimate of income and expenses for the year of the Partnership, the amounts of payments and contributions for each owner of premises in an apartment building in accordance with his share in the right of common ownership of common property in an apartment building; 4) perform work and provide services to owners and owners of premises in an apartment building; 5) use loans in the manner and on the terms provided by law; 6) transfer material and monetary resources under contracts to persons performing work for the Partnership and providing services to the Partnership; 7) sell and transfer for temporary use, exchange property belonging to the Partnership.
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As before, the partnership is governed primarily by its members, whose will is expressed at the general meeting. The scope of his powers is mainly limited to electing the chairman and other members of the Management Board and determining the procedure for remuneration for their work. Owners also decide on:
- Address, name of SNT, full names of founders.
- Goals of activity.
- Legal form of ownership.
- Selecting a control method.
- The procedure for accepting new owners, as well as their forced exclusion or voluntary departure from SNT.
- Rights and obligations of members, limits and types of their responsibilities.
- The procedure for registering the general register of SNT members.
- The procedure and rules for paying contributions, indicating the timing, amount, account details, and attaching a sample payment document.
- Responsibility for late payment or non-payment of fees.
- The procedure for organizing the work of the audit commission, the range of its responsibilities.
- The procedure for familiarizing owners with any documents related to the activities of the partnership (legal, financial, accounting).
- Methods of cooperation with individuals who are not members of the partnership, but at the same time using lands territorially owned by SNT.
- Rules and procedure for making changes to the document, the procedure for their approval.
- Conditions and procedure for liquidation of the association, as well as the procedure for its reorganization.
- The procedure for absentee voting, features of decision-making in this case.
How the new Charter is approved: step-by-step instructions
Certain changes will also affect the payment of membership fees. Now the partnership can collect them from members only once a month (or less often at its discretion). Moreover, they must be accepted exclusively by bank transfer to the specified bank account. After payment, each owner is issued a receipt containing all SNT details.
It is possible to create a homeowners' association only if the necessary, legally significant acts are available. They are filled out taking into account the requirements stipulated by Russian legislation. Since the HOA is a way of managing an apartment building (hereinafter in the article - MKD), you need to pay attention to the norms of the Housing Code of the Russian Federation. The charter can always be amended. This procedure is free.
How the charter is amended
The procedure for making changes is similar to the adoption of the charter itself. It is imperative to notify all owners of the meeting, its agenda, time and place, and form in writing under a personal signature or by registered mail sent with notification of delivery to the addressee.
Changes can be made only if more than half of the owners of an apartment building managed by the HOA take part, and the majority of respondents who took part in the meeting or in the form of absentee voting using the system vote for the proposed changes and additions.
Attention!
In cities of federal significance - Moscow, St. Petersburg, Sevastopol, holding general meetings of owners in the form of absentee voting using the state information system for housing and communal services has been suspended until July 1, 2020 in accordance with Federal Law No. 267 of 07/03/2016.
The decision entered into the minutes on changes to certain provisions of the HOA charter must be properly registered after paying the state fee and submitting documents to the tax office
If, after checking the activities of the HOA, violations were identified in connection with changes in the current legislation and comments were made to the charter of the HOA, instead of making changes, it is possible to develop and adopt a new charter, since the procedure itself is no different.
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