What powers do the founders of the HOA have, what rights do they have., Krasnodar

general information

Why, immediately after the delivery of a house, do its owners give preference to a partnership rather than other forms of management organizations?

Why is this organizational and legal form preferable for residents?

The thing is that the homeowners' association includes the residents themselves .

This means that within the management structure there are persons who are directly interested in ensuring that their house has proper repairs and is also in good condition.

But you should not think that this organization is managed chaotically by its owners. In fact, this organization has a clear structure that functions for the benefit of everyone living in the house.

In this article, we aim to familiarize ourselves with the operating principles of this organization, as well as a detailed study of the bodies that play an important role in management , their functioning, the way they work and carry out their functions.

Find out on our website how to create an HOA, in particular in an apartment building, how to register an HOA in the GIS Housing and Communal Services, and also enter into service agreements with the owners.

How the relationship between a homeowners association and a management company is built if they have entered into a management agreement

The HOA enters into an agreement with the management organization in accordance with clause 1, part 1, art. 137 Housing Code of the Russian Federation. Management functions, responsibilities for maintenance and routine repairs and provision of utilities to the HOA are completely transferred to the management company. The management method does not change, and the HOA also receives the right to control the work of the management company (Part 2.2 of Article 161 of the Housing Code of the Russian Federation).

As a result, the HOA transfers all relations with the owners to the management company, although the owners are not a party to the agreement. Residents place demands on the quality of work and services from the management company, since the management agreement specifies their rights and obligations. The HOA remains only an intermediary between the owners of the premises and the management organization.

Remuneration for members of the HOA board
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Concept

Let's start with decoding, HOA is a homeowners' partnership.

This organization is created on the basis of a newly built and commissioned apartment building or is created from nearby buildings. This organization is recognized by law as non-profit .

But this is not entirely true, because after all, this organization has its direct relation to funds , which lies in the fact that the homeowners association, represented by trustees, has the right to manage funds in the accounts of this organization, as well as to carry out actions related to those or other expenses for the needs of the home.

As you have already understood, a homeowners association is a legal entity that is represented by the tax authority and is a taxpayer.

This organization has the right to hire citizens to carry out the labor function of beautifying and maintaining the house, to pay them wages and remuneration (read about the formation of remuneration for the chairman of this organization).

Of course, such masses of decisions cannot be made chaotically; within the framework of the homeowners’ association there are persons who undertake to exercise control and make decisions on certain controversial issues. These persons constitute its management bodies .

The governing bodies of the homeowners' association are two equally strong structures. The first is the board , which has important functional features.

It is this body that makes the most important decisions, introduces initiatives and submits them for consideration to the chairman.

The second no less important body is the meeting of home owners. If the management includes only an initiative group of citizens, then everyone living in the house can join the meeting.

What powers do the founders of the HOA have, what rights do they have. | Krasnodar

Article 143.1.
Rights of members of the homeowners association and non-members of the homeowners association in a GARANT apartment building:
See Encyclopedias and other comments to Article 143.1 of the RF Housing Code
1. Members of a homeowners’ association and non-members of the partnership, owners of premises in an apartment building, have the right to receive from the management bodies of the partnership information about the activities of the partnership in the manner and to the extent established by this Code and the charter of the partnership, and to appeal in court the decisions of the management bodies of the partnership.
2. Members of a homeowners’ association and non-members of the association, owners of premises in an apartment building, have the right to make demands on the association regarding the quality of services provided and (or) work performed.
3. Members of a homeowners’ association and non-members of the association, owners of premises in an apartment building, have the right to familiarize themselves with the following documents:
1) the charter of the partnership, amendments made to the charter, certificate of state registration of the partnership;
2) register of members of the partnership;
3) accounting (financial) statements of the partnership, estimates of income and expenses of the partnership for the year, reports on the implementation of such estimates, audit reports (in the case of audits);
4) conclusions of the audit commission (auditor) of the partnership;
5) documents confirming the partnership’s rights to property reflected on its balance sheet;
6) minutes of general meetings of members of the partnership, meetings of the board of the partnership and the audit commission of the partnership;
7) documents confirming the voting results at the general meeting of members of the partnership, including voting ballots, voting powers or copies of such powers, as well as written decisions of the owners of premises in an apartment building on issues put to vote during the general meeting owners of premises in an apartment building in the form of absentee voting;
technical documentation for an apartment building and other documents related to the management of this building;
9) other internal documents of the partnership provided for by this Code, the charter of the partnership and decisions of the general meeting of members of the partnership.
GARANT system: https://base.garant.ru/12138291/16/#ixzz52AeWqEKi

Who can be a member of the board?

For many, the question remains of who can actually join the management team. After all, having received such a place, the owner of the property has the right to make proactive decisions, propose certain options for the development of events, and can also be elected as chairman in the future.

In addition, the board meets much more often than a meeting of owners, which means the chance of being heard as a member of the management is very high.

Now let's talk about who can actually be its member and how they can become one of the ordinary homeowners. If you seriously decide to join the membership, then you need to present your candidacy at a meeting of homeowners .

If your candidacy is formalized, you can also join the board and acquire all the rights that are typical for these persons.

Natalya Kruglova, General Director of Metrium Group, member of the CBRE partner network, answers:

The owner of non-residential premises in an apartment building is obliged to pay utilities and contributions for major repairs of common property on the same basis as home owners. If the non-residential premises are the joint property of the HOA, then the residents can use the funds received from renting it out to commercial organizations at their own discretion, including for home repairs. If the owner of a non-residential premises is an individual or legal entity, he has the right to dispose of the income received at his own discretion.

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Compound

The HOA has two bodies - the board, which we have already discussed, and the meeting.

It is advisable to say that the legal force of the latter is somewhat higher than the legal force of the decisions of the first body.

In addition, these two bodies are headed by another person who has enormous influence on all decisions taken by the partnership. Now we are talking about such a person as the chairman, who completely controls the work of each of the bodies of the HOA council.

You can learn about the rights and obligations of the management and founders of the partnership to residents from our article.

What is an HOA?

A lot of specialized materials have been written about what an HOA is, but we will consider this concept only in a general framework, so as not to stray from the given topic. So, an HOA is a homeowners’ association, a non-profit organization created on the basis of an association of owners of apartments or neighboring plots for joint management of the house, lands, adjacent territories, etc.

Despite the fact that such a partnership is not classified by law as one of the options for self-government, in essence, an HOA is a kind of council that, having gathered, decides to take control into its own hands and selects a certain chairman from its composition.

Let us highlight the main idea from this - the HOA, despite the fact that it is created by individuals, is a full-fledged legal entity and has the right to conduct business activities, read - earn money. True, this earnings should be distributed to the needs of the partnership, but this is a matter of technology.

How is it formed?

The composition of the management of the partnership is formed by the residents themselves. They do this by holding a meeting and selecting candidates, the most active and proactive residents who could, one way or another, carry out the necessary actions to improve the house.

Citizens nominated for such a position must also familiarize all residents with aspects of the future policy regarding home improvement.

One candidate or another is selected by identifying the preferences of the owners by a majority.

Read our article about how to write an application to join a HOA.

Initiative group

An initiative group of residents is a group formed from people who are not members of the board but, nevertheless, take an active part in the life and organization of the house.

Such a group, on a voluntary basis, monitors the activities of the management organization, or rather the activities of the chairman and the board, draws attention to their violations and gross deficiencies and notifies residents of certain circumstances.

This group is another regulatory body that aims to make the work of the partnership as efficient and useful as possible for the owners.

Who does it consist of? This group consists of residents living in an apartment building. Sometimes residents of several houses that have one common territory unite and create their own initiative group.

The main condition for the formation of this community is a common interest in the fate of the apartment building .

There is no set number of people who can be part of a group. It could be one or fifty people. The main aspect of its activities is rather the normal and competent functioning of this organization.

Members of the group should not be members of the board, and they also cannot be chairmen, because then it turns out that there will be an interested person in the initiative group.

Find out on our website about HOA disclosure standards to residents, as well as how to create an audit commission.

Legal General Director Ivan Shevelkov answers:

Commercial organizations, when purchasing residential premises in an apartment building, first go through the procedure of transferring residential premises to non-residential premises in the manner prescribed by law. Residential premises or not, they are part of an apartment building, and the owners of these premises have a share in the common property. In accordance with Art. 247 of the Civil Code of the Russian Federation, ownership, use and disposal of common property is carried out in proportion to the existing share and by agreement of all participants in common property. Therefore, regardless of who the owner is, all participants in common property have equal rights to dispose of common property and are obliged to bear the costs of maintaining such property. Issues related to the redevelopment, reconstruction or repair of an apartment building and the surrounding area are resolved at a general meeting of owners. Commercial organizations participate in the general meeting on an equal basis; accordingly, there are no separate payments imposed on the organization when disposing of common shared property.

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How is the reward carried out?

Members of the board for their work can count on remuneration for work carried out on an apartment building. As a rule, such remuneration can be calculated in monetary terms and is a percentage of the amount of work performed .

As a rule, the amount of interest is established by the organization’s charter, which may mean that only the owners themselves who accept the charter decide the issue of remuneration.

Read our article about amendments to the Federal Law on Homeowners' Associations.

How is the board remunerated?

Attention! Any work must be paid. Likewise, the management of the partnership, headed by the chairman, has the right to a salary.

According to the law, this is considered a reward for the work done, because the HOA is not a commercial organization and does not work on a paid basis.

In accordance with clause 11, part 2, article 145 of the Housing Code of the Russian Federation, remuneration and any payments to the board of the partnership and its chairman can be established by a decision of the meeting of owners. This fact can be confirmed by a clause written in the charter, or the minutes of the meeting (what is a standard HOA charter?). The amount of remuneration is best expressed as a percentage of the cost of services provided and included in the cost estimate. The monetary amount can also be set, but the specifics of the HOA work make the interest payment more fair.

In accordance with Art. 208 and 209 of the Tax Code, remuneration to the board of directors is subject to taxation . Personal income tax is calculated from him, and insurance pension contributions are also paid. As payment to the board, you can establish a discount on services for the maintenance of common property, for example, payment for major repairs. All this must be contained in the minutes of the meeting and accounting documents.

With the development of technology, methods of working with the population are simplified. Our experts have prepared articles on the procedure for creating a HOA in an apartment building, as well as how to register online in the GIS housing and communal services system.