What is the right of the homeowners association. How do homeowners associations and owners of residential and non-residential premises interact? Any member of the partnership is obliged in the course of work

The transfer of the housing stock to the ownership of citizens raised questions - and who will now be responsible for all the property in the house, who will be held accountable for the poor quality of public services and who will make repairs at the entrance?

Dear readers! The article talks about typical ways to solve legal issues, but each case is individual. If you want to know how solve exactly your problem- contact a consultant:

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The HOA, as a legal entity, has the right to:

On its own behalf, enter into agreements with organizations providing services that support the “life” of an apartment building as a residential complex: utilities, repair, maintenance, management, and other services necessary for the owners of premises in this building.
Prepare and approve estimates for the future period. Expenditure items may include the costs of necessary repairs and maintenance of all property in the house, major repairs or reconstruction, funds for the reserve fund, which is formed from contributions from the owners, other costs that are specified in the charter of the organization.
Establish for each owner the amount of the mandatory annual contribution for the needs of the partnership and the house. The amount of such contributions, as a rule, depends on the share of a particular owner in the common shared property. These payments are set for a year and are approved by members of the HOA.
Take a loan from a bank as a legal entity, and use the funds received for the needs of the house and the owners.
Conclude on its own behalf contracts with individuals who perform various services in the interests of the owners.
pay for these services.
Sell or exchange property that is owned by the HOA.

The duties of the HOA include:

Ensuring the sanitary, hygienic and technical condition of the house in accordance with current regulations and standards.
Fulfillment of all the terms of contracts that are concluded with organizations and individuals providing maintenance and repair of the house.
Representing the interests of all owners, in the event of establishing their civil rights to common property in the house.

Legislation

Section 6 of the Housing Code of the Russian Federation is devoted to the partnership of homeowners.

Around 1993, immediately after the collapse of the Soviet Union, the first partnerships began to form. It originated in the legal regulation of their activities.

It was developed on June 15, 1996 No. 72-FZ. This law has lost its force since 01.03.2005, when the current Housing Code of the Russian Federation was put into force.

HOA functions

In order to perform certain functions in front of citizens who own premises in apartment buildings on the right of ownership.

Main

The main functions of the HOA include:

Control over the activities of companies that provide various services to homeowners. That is, control over public utilities and enterprises providing household services (for example, garbage collection or snow removal).
Solving issues related to the repair and operation of the house, cleaning and cleaning the local area, including paths and playgrounds, recreation areas and pedestrian areas.
Ensuring the implementation of various works, according to the plan approved for the year.

In an apartment building

In addition to the main functions, the HOA has the functions of the HOA in an apartment building.

control over organizations and individuals who maintain cleanliness and order in the entrances, stairs and apartment halls;
provision of various services to owners in their apartments, as well as the performance of these services;
ensuring the sanitary and technical condition of common house property;
providing homeowners with parking spaces and playgrounds, if this is stated in the charter;
performance of other functions that are prescribed in and approved at the general meeting.

manager

The governing bodies in the HOA are:

governing body;
general meeting;

When they cannot elect a chairman from among the owners of the premises in the house, they are invited. He works under an employment contract, the employer under which is the HOA. The functions of the chairman and manager are somewhat different.

The manager's functions are as follows:

ensures the normal functioning of all communication systems at home;
interacts with the administration of the municipality to which this residential building belongs;
interacts with contractors that perform various works in the interests of the owners of the premises in this house;
cooperates with the population;
cooperates with members of the board of the HOA;
prepares the budget and estimates for the next year;
interacts with debtors to pay contributions to the HOA;
performs other functions that may be prescribed in the charter of the HOA.

boards

The Board is elected from among the owners of housing in this house.

It performs the following functions:

Annually reports to the general meeting on the work done during the year /
Planning work for next year.
Develops an estimate of expenses for the next year and submits it for discussion, with a mandatory itemized breakdown.
Monitors compliance by the partnership with all applicable rules and laws.
Supervises that members of the HOA make the necessary contributions on time, and that long-term debts do not arise.
Carries out management of the house or the conclusion of a contract for the management of it.
Conducts hiring of workers and organizations for cleaning the house and surrounding areas.
Performs other functions that are assigned to the board by the charter of the HOA.

Chairman Requirements

The chairman of the board of the HOA is elected from the owners of the residential premises of this house. This is the main condition that must be observed when selecting a candidate for this position.

According to, he is elected for a term, which is prescribed in the charter. He acts on behalf of the partnership without issuing additional powers of attorney.

Requirements for the chairman of the board are spelled out in the charter of the partnership.

It can be:

higher economic or legal education;
At least 3 years of experience in business or administrative work;
having your own vehicle.

The psychological requirements for the future chairman include:

sociability;
stress resistance;
the ability to achieve one's legal means;
self confidence;
the ability to resist the "pressure" of both members of the HOA and third-party organizations;
good health and an active lifestyle.

Before appointing someone to the position of chairman, he must be familiarized with his job description. This document spells out all the main responsibilities of the person who will hold this position.

An employment contract is also signed with the chairman and he is paid a salary, if this is provided for in the charter of the HOA.

Responsibility

The HOA is authorized to carry out house management activities, that is, to do what the management company represented by the housing department or a commercial organization previously did.

In accordance with Article 137 of the Housing Code, The HOA has the right to do the following:

Full the list of powers of the HOA should be listed in the Charter of the organization. For example, the Charter may allow for the reconstruction and re-equipment of existing premises, the transformation of the local area, parking equipment, etc.

Note! The rights of the organization listed in the Charter should not contradict the Housing Code, but can only supplement and expand its provisions applicable to a particular situation.

Most of their rights, the board of the HOA can implement independently, for example, calculate the rent and distribute funds to bank accounts - this is the so-called current work.

The control of the legality of all actions of the HOA is carried out by the audit commission, consisting of 3-4 people who are not employees of the HOA and members of the board.

To make serious changes, for example, in the structure of the HOA when changing the ratio of funds distributed to various funds, when refurbishing buildings, the board is obliged to convene a general meeting of residents and put the issue to a vote. Only with the majority of votes "for", the partnership receives the right to carry out the declared activities.

Interaction with owners

Often, when exercising the rights of an HOA, tenants and board members have questions regarding the most problematic and controversial topics, among which are the relationship between the board and other owners.

Issuance of certificates

Sometimes tenants are faced with the fact that the board refuses to issue certificates to them (on the composition of the family or an extended extract from the apartment card) on the basis that the owners owe rent. Does the HOA have the right not to issue certificates if there is a debt?

This is not a legal practice, which is often used by the HOA or the Criminal Code in order for the tenants to cover at least part of the debt. Issuing certificates is not a right, but an obligation of the HOA to residents. This means that they are obliged to write out the necessary paper, even if the tenant has never paid his utility debt during the entire stay.

Breaking into an apartment

Another problematic issue is whether the board or the chairman of the HOA has the right to inspect the apartment? The Constitution of the Russian Federation enshrines the right of citizens to the inviolability of housing.

Reference! Without the permission of the owner of the premises, no one can enter his premises, even if an emergency has occurred in the apartment.

There is only two cases when HOA employees can enter an apartment without permission:

If there is an order.
With the threat of a terrorist act, the onset of a natural or man-made disaster.

Thus, the requirements of the board to inspect the premises under any pretext - taking meter readings, checking meters, measuring pressure in pipes, checking the temperature of the room, etc. - illegal.

The tenant may voluntarily let the members of the board in, but if he forbids entry, then nothing can be done about him.

Penalty charge

The HOA has the right to charge penalties for non-payment only if it is prescribed in the Charter adopted at the general meeting of tenants. The accrual of interest is a coercive measure designed to force the debtor to quickly pay the full payment for housing.

The procedure for imposing a fine is not taken from the ceiling. It must be spelled out in the bylaws. There are also special provisions of the Tax Code of the Russian Federation that determine the upper limits of penalties.

Attention! The amount of the penalty cannot exceed 1/30 of the current refinancing rate for each day of delay.

Signing an agreement

Sometimes tenants are outraged that the HOA forces them to sign service contracts.

In accordance with article 137 of the RF LC, HOAs have the right to conclude agreements with owners on public services and the procedure for calculating payments.

In this case, the board has the opportunity, on behalf of the tenants, to enter into various transactions with utility providers and implement their obligation to maintain the house. But force or coerce a tenant to sign an HOA agreement does not have the right, everything should happen in good faith of the parties.

If there is no HOA agreement with the owner, then the tenants will simply have to go to the representative office of the operating company on their own and conclude the necessary agreements.

Disclosure of information about debtors

Lists of debtors, which the HOA boards sometimes hang out for public viewing in the entrances, often become a real stumbling block between the partnership and the tenants. The indignations of those recorded in the “shameful” list are quite legitimate.

In accordance with the Law "On the Protection of Personal Data", the disclosure of such information is expressly prohibited. without written permission, the board of the HOA does not have the right to publish any data about debtors, including these:

surname, name and patronymic of the tenant;
any passport data;
residential address;
the size of the debt.

The board has the right to make such lists for itself. Moreover. they are needed in order to calculate debtors and have a conversation with them, and in case of long delays in payments, go to court and seek to disconnect the apartment from the system of communal benefits at home.

Such lists must be kept in a safe in a closed room of the board and are not subject to public disclosure. Debtors who see their last name have every right to go to court and receive monetary compensation from the board.

The maximum that the HOA can do is to publish an announcement with something like this: “There are 5 debtors living in our house. We ask them to pay the utility debt in the total amount of 10,000 rubles by January 31 of the current year. Otherwise, we will be forced to go to court to enforce the debt.”

Responsibilities

In -149 of the Housing Code of the Russian Federation, a list of duties of the board and chairman of the HOA is given. In most cases, in order to fulfill these duties, the board of the partnership is vested with its own rights.

Separately, it is worth highlighting responsibilities of the HOA to the residents of the house:

compliance with the law and the requirements of the Charter;
control over the fulfillment by residents of their duties for the maintenance of the facility;
direct management of the house or control of the management company;
conclusion of an agreement with contractors and subcontractors supplying utilities;
conclusion of contracts for the maintenance and repair of the building;
maintaining a list of tenants - members of the partnership;
accounting, drawing up an estimate of expenses and income, accrual of rent;
conducting office work, issuing certificates to members of the HOA;
holding a general meeting of residents;
control over the activities of the chairman of the HOA.

The Chairman has the following obligations:

give orders to all officials of the HOA, hire and fire personnel;
act on behalf of the partnership within the scope of their authority without prior notice to the general meeting;
submit any documents developed by it for decision by the general meeting.

Responsibility

Neither the Housing nor the Civil Code specifies what kind of responsibility the members of the partnership bear for their actions (or inaction), as well as the chairman and members of the board. But this does not mean that the activities of the HOA are not controlled in any way and violators cannot be held accountable.

Note! As a rule, specific penalties for certain misconduct are prescribed in the Articles of Association of the partnership, or there is a note “in accordance with applicable law”.

General civil liability occurs for the following offenses:

Reference! All members of the HOA, including the chairman and representatives of the board, are financially responsible for their actions. The amount of damage is determined using a special act, which, if necessary, involves a professional appraiser.

In the event of an emergency in an apartment, as a result of which material damage is caused not only to the owner, but also to neighbors, the responsibility of the tenants and the partnership is delimited, depending on what caused this accident.

For example, if an apartment was flooded when a pipe related to common house property burst, the HOA will be liable for losses, since, according to the Rules for the maintenance of common house property, all plumbing belonging to this category must be systematically checked.

If the flood of the apartment and neighbors occurred due to a breakdown of pipes that are not related to common house property (for example, a tap broke in the kitchen), the HOA will not bear any responsibility for the bay.

In addition, liability in specific situations involving torts may be described in the Articles of Association. For example, if fraud is detected, the chairman will be required to pay a fine to the HOA.

Board activity

The board of the HOA is directly involved in the activities of the partnership and its powers are regulated in article 147 of the Housing Code. What exactly is within the competence of the general meeting, and what is within the competence of the board (that is, what the chairman and his deputies can do without prior notice to the residents) should also be clearly stated in the Charter.

Usually, The board of the HOA has the following powers:

If it is written in the bylaws, The board of the HOA can also be endowed with additional powers:

Arrangement of the adjacent territory.
Self service at home
Collection of rent from tenants of housing and commercial premises.
Disposition of common property, for example, an elevator, a basement, common counters.

Thus, the rights and obligations of the HOA, according to the Housing Code, are determined by their functions. The main task is to keep the house and its property in perfect order. To fulfill it, the partnership can collect funds from residents (rent), enter into contracts with service organizations, hire employees for the independent maintenance of the building, etc.

A complete list of actions that are within the competence of the HOA should be listed in the Charter of the organization.

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Duties of the HOA

The HOA signs an agreement with a resource supply company or itself produces the resources that are necessary in order to provide tenants and owners with the required amount of quality utility services. The partnership is engaged in the maintenance of in-house engineering systems that are used to provide these services (both with the involvement of other persons, and independently).

In the field of accrual of payment for utilities, the board of the homeowners association has such responsibilities as:

reduction in the amount of payments in the prescribed manner (for example, in the event of fixed power outages);
checking the amount of payment for services at the request of consumers and no later than three working days issuing documentation that confirms the correctness of the accrued payments, taking into account the quality of the services provided and the fines, penalties, penalties provided for by law and the contract;
ensuring publicity and transparency of the functioning of the partnership, for which, in the presence of common house (collective) meters, they start a register of readings (this will allow, at the request of consumers, to provide them with extracts from it during the working day);
if problems are found in the operation of engineering systems inside the house or engineering equipment and communications that are located outside the house, the HOA, represented by the board, must convey this to the owners during the day and provide a possible forecast (how long the suspension or restriction of utility services is possible).

At the request of each of the owners of residential and non-residential premises in an apartment building, the HOA is obliged to provide the following information:

name, address and contact telephone number of the emergency and dispatch service,
tariffs for utility services and their surcharges, the form and procedure for their payment, their quality parameters,
the deadline for the elimination of emergencies and other violations in the provision of public services.

In addition, the management of the HOA is obliged to inform residents about planned suspensions in the provision of services. Moreover, this must be done no later than 10 days before the start of such a break.

In order to guarantee the fulfillment by the competent bodies of the partnership of their duties, liability measures are provided.

Here are the reasons for such measures:

violation of the order and quality of the provision of relevant services;
damage caused to the life, health or property of the owner or citizens living with him, in connection with the non-provision of services or inadequate quality of services.

In this situation, the lack of guilt of the management of the partnership is not taken into account. But they will be able to avoid responsibility for the poor quality of public services if they can prove that this fact is a consequence of force majeure.

It should be noted that the violated obligations on the part of the service companies hired by the HOA or the unprofitable financial and economic activity of the HOA due to incorrect actions of the management bodies are not related to force majeure circumstances.

The charter of the HOA provides for a number of cases in which members of the board of the partnership will be held liable.

HOA rights

The HOA has the right to demand payment for the consumed services (together with the payment of the relevant penalties and other penalties, if there is a debt).

The management of the HOA also has the right to demand that employees or representatives of the partnership, emergency services workers be allowed into the housing occupied by the owner. They will inspect and assess the sanitary and technical condition of the equipment inside the apartment, as well as perform the required repairs.

With consumers, they will need to agree on the time of the visit, although this rule does not apply when it comes to eliminating an accident. In case of refusal to admit representatives of the HOA, if harm is caused due to the fault of the tenant (for example, neighbors are flooded due to a faulty water supply system), the HOA has the right to insist on full compensation for the loss.

The management of the partnership has the right to suspend or restrict the supply of hot water (hot water), gas and electricity to the defaulter for non-payment.

It is worth noting that turning off heating, sewerage and cold water HOA is prohibited.

Differences in the rights of the owner of a dwelling and a member of an association of homeowners

Let's clarify the status of owners in multi-storey buildings. They may be Russian citizens or those who do not have the citizenship of the Russian Federation, but acquired ownership of a dwelling as a result of a transaction of sale, exchange, donation, inheritance or under an annuity agreement. They have equal rights and opportunities not only in relation to their apartments, but in relation to common premises (stairwells, interfloor passages, halls and corridors, utility rooms, basements and attics, as well as non-residential premises).

Differences between their rights and the rights of members of the HOA may appear as a result of the choice of the form of management of the house. It can be different (HOA, management company, housing cooperative or direct management). In any case, the owners of residential premises have the right to choose such a form. She is elected at a general meeting of all residents of an apartment building, at which the majority of residents also face the question of exercising their right to be elected as a member of this structure. Joining a membership or remaining an individual is the choice of everyone.

So what are their legal differences? Of course, in the right to property they do not exist and cannot exist, since no one has the right to restrict the rights and freedoms of the owner (the use and disposal of their property, keeping housing in proper order, free access to it, etc.).

Exclusive rights of HOA members:

participation in management activities in relation to an apartment building;
the right to participate in the elections of the governing bodies of the HOA;
the right to be elected to the above body;
participation in the discussion of problems and the adoption of appropriate decisions on the improvement of the local area;
video surveillance installations, access control systems, arrangement of playgrounds and repair work in public places;
the right to make decisions on the appointment of salaries to members of the board of the HOA and the chairman of the HOA;
accept estimates of income and expenses, the staff list of the HOA;
the right to approve the annual financial statements;
taking part in the decision to lease the premises of their non-residential fund, etc.

Rights of owners of premises in an apartment building (non-members of the HOA):

attendance at the general meeting and participation in discussions, however, without the right to vote;
the right to be elected to the audit commission of the HOA;
be informed about the decisions made at the general meeting and the board of the HOA;
obtaining certified copies of all documentation regarding their rights and obligations;
the right to demand clarifications on payment charges;
appeals to the police, the prosecutor's office or the court to protect their violated rights, etc.

To draw conclusions about whether you become a member of a partnership or sign a civil law contract, depending on how much you want to take an active part in managing the house. If you like to stay away from voting and regular meetings, this activity is not for you.

It should also be noted that members of the HOA and owners of premises who are not members of the HOA in matters of paying expenses in relation to the house (for maintenance and repair) are equal. That is, both members of the HOA and simply owners of apartments in the house are required to pay a fee for the maintenance of common property (clause 1, article 39 of the LCD, article 249 of the Civil Code).

Refusal to participate in the partnership or evasion from concluding an agreement with the HOA will not exempt the landlord from paying the costs of repair and maintenance of common property. If the owners of apartments in the house fail to fulfill their obligations regarding participation in the general expenses, the HOA has the right to go to court with a demand for compulsory reimbursement of mandatory contributions and payments (clause 3, article 137 of the LC RF).

Still have questions? Do you want answers to them?

Here you can ask a question free of charge to experts or lawyers of the gkh-konsultant.ru portal.

Everyone who is a member of the partnership can receive all information related to the management of the house.

Dear readers! The article talks about typical ways to solve legal issues, but each case is individual. If you want to know how solve exactly your problem- contact a consultant:

APPLICATIONS AND CALLS ARE ACCEPTED 24/7 and 7 days a week.

It's fast and FOR FREE!

Any payment and billing data must be transparent and publicly available to every member of the homeowners association.

If the board of the HOA evades providing data, then the tenants have the right to call a meeting and.

It is worth remembering that the HOA is a voluntarily created non-profit organization for the management of a residential building by homeowners.

What does membership give?

Membership in the HOA makes it possible to receive all data on economic and financial activities.

According to article 143 of part 3 of the LC RF, you can familiarize yourself with the following documentation:

register;

financial statements, various estimates for the year and reports on their execution, auditors' conclusions (during audits);

the results of the conduct;

documents that confirm the right to dispose of property;

various minutes of meetings and voting;

technical plan documentation;

various internal documents of the partnership and decisions of the general meeting.

In addition, membership in the HOA allows you to make a choice about how to organize repair work, including capital.

Membership in the HOA is an opportunity to control all the processes of organizing economic and financial activities.

In addition, all citizens who have joined the partnership can take an active part in the management of the house. If the MC is selected, then there is no such possibility.

Legal position and status

Only apartment owners can become a member of the association. Citizens who have purchased real estate can also join an HOA as soon as they receive ownership.

In order to withdraw, a written application must be made.

If the owner sells the apartment or loses the right of ownership for other reasons, then he automatically leaves the partnership.

Each partnership has its own board and. By voting of members of the HOA, the choice is made.

Only homeowners can be the chairman and members of the board. In addition to the "leading staff", an audit commission should be created.

Members of the partnership choose those who will be included in it. The Commission is obliged to carry out an audit of financial and economic activities at least once a year and subsequently submit reports.

Rights of HOA members

Members of a homeowners association have the right to:

disposing of one's own property without the consent of anyone;

actively participate in the work of the partnership by attending meetings, voting, making various proposals;

to express an opinion on the activities of the partnership, the conduct of repair work, etc.;

use public property;

express a desire to be a member of the audit commission and chairmanship.

Board of the organization

The board of an association of homeowners is obliged to provide various reports, estimates and other financial and economic documentation in a timely manner and upon request.

Also, the board does not have the right to make decisions on general issues without holding a meeting of owners, otherwise members of the HOA may demand a replacement of the board.

The management board of the association must promptly inform the tenants about the implementation of various works. And also together with them to establish the amount of monthly fees.

other tenants

It should be borne in mind that joining the partnership is voluntary. Some tenants may opt out of HOA membership. But, at the same time, apartment owners are also vested with rights in accordance with Article 143.1 of the Housing Code of the Russian Federation.

According to the data, any tenant has the right to receive information about the accounting and financial activities of the board. This is due to the fact that each tenant pays all bills and fees.

Not only members of the HOA, but also any other apartment owners can submit requirements for the repair and maintenance of common house property.

Also, citizens who are not members of the HOA can familiarize themselves with any technical and reporting documentation.

According to a member of the HOA, only the owner can be.

The only way out of this situation will be the entry into the ownership rights in a share way or by donation.

Responsibilities

A member of the HOA is obliged:

Use various common areas without infringing on the rights of other residents.

Carefully treat plots of land and the housing stock itself.

Comply with all sanitary and epidemiological requirements.

At least 1 time in 5 years to carry out repair work of residential premises.

Use elevators for their intended purpose.

Walk dogs in designated areas.

Pay dues as agreed.

Maintain cleanliness and tidiness in the entrances, elevators and the local area.

On the video about the duties of members of the homeowners association

Where are they registered rights and obligations of the HOA and more importantly, what are they? In 1996, a law was published that regulated the work of HOAs. It covered many of the provisions relating to areas of common property management.

It operated for a long time, until 2005. After the Housing Code was created in 2004, this law was repealed.

Attention! The new code became the basis around which a new industry began to take shape. It's about housing law.

Almost all the provisions of the old law have been included in the LCD. But the rules that relate to the activities of the partnership can also be found in other codes.

Here HOA is considered as a legal entity, non-profit organization.

Section 6 is devoted to the activities of the partnership in the LCD. It is he regulates the process of creating an organization as well as her work.
It also says about the legal status of the participants in the partnership.

Document contains information about the procedure for liquidation if the need arises.

Details on the formation of a partnership can be found in chapter 13. The registration procedure is described here; it is listed What rights do property owners have?.

In addition, the chapter indicates the obligations imposed on members of the HOA. The moment of reorganization is described. Listed are the cases in which merger of homeowners' associations.

Personal liability of an official is possible if his work caused losses to the organization.
If he hid information about the activities of the association, as a result of which damage has been done.

Defaulters are liable if due to accumulated debt Homeowners association cannot pay utility bills. This moment is regulated by the Civil Code.

Conclusion

The activities of the partnership are regulated by law. This is the Housing Code, as well as the Criminal Code, the Code of Administrative Offenses and the Civil Code. The chairman of the association is responsible and board members.