Litigation involving TSZH. Court decisions: Litigation with HOA
Comments ( 24 )
I don't see the point in abolishing the HOA at all. First, this best form house management, unless of course a normal board and chairman. Secondly, everything goes to the fact that all other forms become obsolete, and this is the policy of the state. Thirdly, it is easy to say - liquidate. Who will be doing this? For what money? And if there are a lot of debts or they are created fictitiously and very quickly, they will sign a couple, three acts of work performed. Previously, the prosecutor's office wrote that the creation, activities, including financial and economic HOA, are civil law relations and prosecutorial response measures cannot be applied to them. Now the situation has changed, after the president drew attention to the topic of homeowners associations. Write a letter to the prosecutor's office to check the financial and economic activities. Write that the tariffs are too high and the chairman explains this by debt obligations to third parties. You will not finally solve the problem with such an appeal, but if you decide to re-elect the board, then at least there will be information and the actual state of financial affairs.
Andrey, thanks for your participation, but in reality, our house does not need an HOA. There are only 100 apartments, it is unprofitable to maintain an HOA, it is easier under the new legislation to elect a council at home, pay utility bills directly, and entrust maintenance to anyone management company
I don’t know for 100%, but I heard that instead of 307, Decree 354 will now operate and the HOA will be able to service the house according to the direct control scheme: i.e. the owners will be able to conclude contracts with resource-supplying companies themselves, and the HOA will "close" relations only within the framework of the repair and maintenance of common property.
Much has been written in the literature that homeowners associations and management companies (in the direct form of management) went bankrupt as resource-supplying organizations; they were faced with the problem of collecting utility bills from the owners. But if Decree 354 solves this problem, then the communal apartment will go under direct contracts by the owners.
It is possible that such a scheme would require a general meeting, but it is important to find an appropriate chairman. After all, according to your logic, the House Council also needs to be elected from someone. And I think that your war with the chairman will develop into a war with the Criminal Code. In my opinion, the House Council is a purely declarative body. Judge for yourself: he cannot go to court, he does not have any real levers of pressure on the Criminal Code. This is a kind of analogue of STOS, which is provided for by the Federal Law "On Local Self-Government". In Novokuznetsk, STOs are organized by the local administration and, in fact, they are "masked Cossacks" who "are doing something in the interests of citizens." But in fact, through them they monitor the situation on the ground and pump the necessary initiatives, inflate them to right size and then called legislative initiatives (at the local level).
So HOA is still better
Since 2008, my wife and I have been closely involved in the topic of homeowners associations. In your case, judicial practice proceeds from the fact that since the services were actually provided, you must pay for them. Most likely Chairman of the HOA submits to the court and contracts for the provision of services. There is only one way out - to hold a general meeting and change the board and the chairman. The most difficult thing is to collect information about the owners and finance this procedure. We spent 25,000 rubles on a house of 60 apartments. You write that the chairman rests and does not give information. We did this: we turned to the prosecutor's office. They brought all the documents there (although this is not at all necessary, at first we had a chairman and did not care about the prosecutor's office) and we made copies of the audit materials. You can write to the chairman and ask him to provide you with lists of owners and lists of members for your review. And if he refuses or does not answer, then appeal against his actions in court (We did it). But there is no guarantee that the HOA will comply with the court decision. Our HOA was created by a developer who "kissed" with the governor and the mayor, and for two years we fought with windmills. And now they've had a fight and things are starting to change. Or you have to wait until the amendments to the LCD come into force, where they promise to expand the powers of the local authorities and apply there.
The liquidation of a homeowners association (HOA) is carried out in the manner prescribed by civil law, namely Articles 61-64 of the Civil Code of the Russian Federation.
Under the liquidation of any legal entity should be understood as the termination of activities due to the expiration of the period for which it was created, by decision general meeting, a higher authority (for state-owned enterprises) or by a court decision.
Liquidation of a homeowners association is possible in several cases:
1. The HOA is subject to liquidation at the end of the period for which it was created.
2. Liquidation of the HOA is possible by decision of the meeting of homeowners.
3. By a court decision, if gross violations of the current legislation are allowed during the creation or operation of the HOA.
4. When demolishing a house
The decision to liquidate the HOA is made by the general meeting of the owners of the premises in apartment building(clause 2, clause 1, article 145 of the Housing Code (LC). At the same time, according to clause 2 of article 141 of the Housing Code, the general meeting of owners is obliged to decide on the liquidation of the HOA if its members do not have more than 50% of the votes of the total the number of votes of the owners of premises in an apartment building.
In your case, you will have to pay for the services rendered.
Article 143.1. The Housing Code of the Russian Federation describes all your rights, namely:
1. Members of an association of homeowners and owners of premises in an apartment building who are not members of an association have the right to receive information from the management bodies of the association about the activities of the association in the manner and to the extent established by this Code and the charter of the association, to appeal in court the decisions of the management bodies of the association.
2. Members of an association of homeowners and owners of premises in an apartment building who are not members of an association have the right to make demands on the association regarding the quality of services provided and (or) work performed.
3. Members of an association of homeowners and owners of premises in an apartment building who are not members of an association 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 execution of such estimates, audit reports (in 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 results of voting at the general meeting of members of the partnership, including voting ballots, powers of attorney for voting or copies of such powers of attorney, 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;
8) 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 the said Code, the charter of the partnership and decisions of the general meeting of members of the partnership.
For any violation of these rights, contact the prosecutor's office, the police or the court.
You are right that according to Art. 141 they are obliged to take a decision on liquidation. But they hide that there are fewer of them than it should be. And if by law they must be liquidated, then therefore they do not have the legal right to further making payments.
Art. *155.6). Those who are not members of a homeowners association ... in an apartment building in which a homeowners association has been established ... payment for the maintenance and repair of common property in an apartment building and utility bills"; in accordance with agreements concluded with a homeowners association. .
Moreover, the HOA is obliged to conclude contracts - Article 138 of the LC RF, 445 of the Civil Code of the Russian Federation, but does not do this.
By the way, recently they showed on the program of Channel 1 - housing and communal services - the UK presented Navka with an invoice for 700,000, while she did not conclude an agreement with them - the UK was left with a nose ... services are provided on the basis of a contract. And if you are not satisfied with their service, why should you accept and pay for it?
It's all right! The contract is a voluntary agreement of the parties, since you lived and used the services, you are obliged to pay for the service. Another question is what claims the plaintiff will make and what evidence will be provided to the court on the claim, such a decision will be made by the court, in particular at the cost of services, in your case. You have the right to provide your evidence, indicated by you above. An example with banks, they send a plastic card by mail, you withdraw money and spend it. In this case, a written agreement on the provision of a loan has not been concluded, but you pay the sums of money on the loan, taking into account interest. In your case, the HOA provided you with a service, you did not refuse it, and now you do not want to pay. In any case, it is necessary to pay for the services rendered, but how much the court will establish after examining your evidence.
Sergey, you did not understand the essence of the issue that interests us. Question: is it possible for tenants during the trial to refer to the unlawfulness of billing for utility bills in connection with the illegal continuation of the existence of the HOA and thereby, during the court session, petition the judge to provide evidence that the HOA has more than 50% of the members of the HOA.
And as for the contract, you are not quite right. This is not just a voluntary agreement, Article 138 of the Housing Code of the Russian Federation, 445 of the Civil Code of the Russian Federation - they oblige the HOA to conclude contracts, moreover, with the inclusion of mandatory clauses in accordance with the Law on the Rules for the Provision of Public Utilities and Other Services. Contracts without the inclusion of these clauses can be considered worthless.
Two lawyers, two opinions. I understand you perfectly, only you are convinced and want to believe only yourself. As long as the HOA exists, all its requirements will be satisfied, of course, taking into account reasonableness and validity. All the same, you will have to pay according to the invoices issued, you will resolve the dispute about the amount of payments in court. Like this.
The fact is that the HOA itself should be liquidated, i.e. they themselves are obliged to liquidate if the members of the HOA are a minority. And consequently, from the moment when there are fewer of them, their activities become illegal, and accounts too.
A homeowners association (hereinafter referred to as a HOA, partnership) is a non-profit organization, an association of owners of premises in an apartment building for the joint management of the complex real estate in an apartment building, ensuring the operation of this complex, possession, use and, within the limits established by law, the disposal of common property in an apartment building. This definition is given in Article 135 of the Housing Code. Russian Federation() , which is currently the main legislative act regulating the creation and activities of homeowners associations, their rights and obligations, legal status members of partnerships, relations regarding common property in apartment buildings, issues of management of apartment buildings.
Federal Law of December 29, 2004 N 189-FZ "On the Enactment of the Housing Code of the Russian Federation" () was declared invalid from March 1, 2005 Federal Law of June 15, 1996 N 72-FZ "On Associations of Homeowners" (), which in the previous period regulated the organization and activities of homeowners' associations, property relations in a condominium (a single complex of real estate), its management and maintenance. Many provisions federal law dated 15.06.96 N 72-FZ were adopted by the Housing Code of the Russian Federation (), including unchanged.
A feature of this generalization, in the preparation of which the materials of the judicial practice of the Federal Arbitration Court of the North-Western District (hereinafter - FAS SZO) 2003 - 2006, as well as the decisions of the Presidium of the Supreme Arbitration Court of the Russian Federation (hereinafter - the Supreme Arbitration Court of the Russian Federation), is the fact that what a large number of disputes were considered using the Federal Law "On Homeowners' Associations", but since, as indicated above, many norms of the Housing Code of the Russian Federation actually repeat the provisions of the said Law, the relevance of judicial practice developments remains important, and the identified changes are of interest and indicate a strengthening of the position associations of homeowners in the arbitration process.
It should be noted that the number of disputes involving homeowners associations is relatively small (less than 0.5% of the total number of cases considered by the cassation instance), but every year the number of applications of homeowners associations to arbitration courts with independent claims and cases of their involvement in process as defendants, third parties, interested parties, in connection with which it is natural to conclude that the number of cases involving homeowners associations will not decrease in the future.
Jurisdiction of cases involving the HOA to the arbitration court
A homeowners' association is created by decision of the owners of premises in an apartment building, who, at a general meeting, by a majority of votes from the total number of votes of owners of premises in an apartment building, adopt the charter of the partnership. The number of members of the HOA who have created a partnership must exceed 50% of the votes of the total number of votes of the owners of premises in an apartment building. The HOA is created without limiting the term of activity, unless otherwise provided by the charter; is a legal entity from the moment of its state registration; is liable for its obligations with all its property. The relevant provisions are contained in Articles 135 (), 136 () of the Housing Code of the Russian Federation, and were also contained in Chapter IV of the Federal Law "On Associations of Homeowners". It is also possible to create an HOA in apartment buildings under construction by persons who will own the ownership of the premises in such houses (Article 139 of the Housing Code of the Russian Federation (), Article 48 of the said Law); association of several associations of homeowners (articles 136 (), 142 () of the same Code, article 46 of the said Law).
Being a legal entity, a homeowners association enters into various legal relations, both private and public, acquires rights, assumes obligations. Violation of the balance of interests of the participants in such relations may lead to an appeal to the court for the protection of violated or contested rights. To resolve the issue of whether a dispute involving an HOA can be considered by an arbitration court, it is necessary to assess such a dispute from the point of view of jurisdiction.
According to Article 27 of the Arbitration Procedure Code of the Russian Federation (), the arbitration court has jurisdiction over cases on economic disputes and other cases related to the implementation of entrepreneurial and other economic activities with the participation of organizations, individual entrepreneurs, and in cases provided for by the said Code, other federal laws, and other persons.
By its status, a homeowners association as a legal entity can be a participant in the arbitration process. However, in order to classify a dispute involving an HOA under the jurisdiction of an arbitration court, it is necessary to have such a component as the economic nature of the dispute. In the event that it is established that the disputed legal relations arose outside the sphere of entrepreneurial and other economic activity, and there are no grounds for applying the rules of Article 33 of the Arbitration Procedure Code () of the Russian Federation on special jurisdiction, the dispute is not under the jurisdiction of the arbitration court, and the initiated proceedings in the case is subject to termination.
Firstly, these include cases on the creation, liquidation of homeowners' associations, amendments to the information contained in the Unified State Register of Legal Entities, contesting relevant decisions, actions, and inaction of tax authorities.
The HOA filed an application to invalidate the decision of the tax authority to refuse state registration of changes not related to changes in the constituent documents. Upholding the ruling of the court of first instance to terminate the proceedings, the cassation instance gave the following justification. According to Article 135 of the Housing Code of the Russian Federation (), a non-profit organization, an association of owners of premises in an apartment building for the joint management of a complex of real estate in an apartment building, ensuring the operation of this complex, possession, use and, within the limits established by law, disposal of common property in an apartment building home. In accordance with the first part of Article 27 of the Arbitration Procedure Code of the Russian Federation (), the arbitration court has jurisdiction over cases of economic disputes and other cases related to the implementation of entrepreneurial and other economic activities. Based on this rule, the Plenum of the Supreme Arbitration Court of the Russian Federation in paragraph 5 of the Decree dated 09.12.02 N 11 "On some issues related to the entry into force of the Arbitration Procedure Code of the Russian Federation" () explained that arbitration courts have jurisdiction over cases on disputes about the creation, reorganization and liquidation of legal entities that are commercial organizations, on refusal of state registration, evasion of state registration of commercial organizations, as well as other organizations whose activities are related to entrepreneurial and other economic activities. Cases on disputes on the creation, reorganization and liquidation, as well as disputes on refusal of state registration, evasion of state registration of other organizations (non-profit organizations, including public associations and organizations, political parties, public funds, religious associations, etc.) who do not have as the main goal of their activities the extraction of profit, are not subject to consideration by arbitration courts. This dispute is related to the refusal to state registration of changes in information about a legal entity - a non-profit organization, therefore it is not subject to consideration in an arbitration court, in accordance with Article 150 of the Arbitration Procedure Code () of the Russian Federation, the proceedings must be terminated (Resolution of the FAS SZO dated 22 . 06.06 in case N A56-4045/2006 ()).
The court of cassation upheld the decision of the court of appeal to terminate the proceedings on the application of HOA-1 to the tax authority to invalidate the decision to register HOA-2, based on the following. According to the charter, HOA-2 is a non-profit organization, a voluntary association of owners of residential and non-residential premises, and was created in order to exercise and protect the rights of these owners. In accordance with Article 1 of the Federal Law "On Homeowners' Associations", a partnership is a non-profit organization, which is a form of association of homeowners for the joint management and operation of a real estate complex in a condominium. Since, according to Article 51 of the Civil Code of the Russian Federation (), the creation of a legal entity is determined by the moment of its registration, the dispute on invalidating the decision to register a non-profit organization is a dispute on the creation of a non-profit organization. The appellate instance correctly applied the rules of procedural law - Articles 27 (), 29 () and 33 () of the Arbitration Procedure Code of the Russian Federation, as well as the explanation contained in paragraph 5 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated 09.12.02 (), and on On this basis, she made a legitimate conclusion that the arbitration court did not have jurisdiction over the case on contesting the decision to register a homeowners association as a non-profit organization, in connection with which she reasonably canceled the decision of the court of first instance and terminated the proceedings. Rejecting the arguments of HOA-1, the cassation instance indicated that the fact that a non-profit organization has concluded contracts necessary for the implementation of its statutory activities, and its participation in civil legal relations, entails the possibility of consideration by an arbitration court of a dispute that may arise from the execution of such contracts or from the relevant civil law relations, which does not entail the jurisdiction of the arbitration court of the dispute on the creation or liquidation of a non-profit organization (Resolution of the FAS SZO dated March 15, 04 in case N A56-18524 / 03 ()).
On similar grounds, proceedings were terminated in the case on the application of the tax authority to the HOA on the liquidation of the homeowners' association (Resolution of the FAS SZO dated November 24, 2003 in case N A56-4354 / 03 ()).
Secondly, disputes not under the jurisdiction of the arbitration court may include cases of contesting decisions of the governing bodies of homeowners' associations (general meeting of members of the partnership, the board of the partnership) on organizational, other non-economic issues.
The organization contacted court of Arbitration with a claim to the HOA to invalidate the decision of the general meeting of members of the HOA dated 01.03.03. The decision of the court of first instance, left unchanged by the decision of the appellate instance, dismissed the claim as declared by a person who is not a member of the HOA and therefore does not have the right to appeal against decisions of its meeting that do not affect the rights of the plaintiff. Having checked the legality of these judicial acts, the cassation instance came to the conclusion that it was necessary to cancel them with the termination of the proceedings on the case due to the lack of jurisdiction of the dispute to the arbitration court. The subject of the dispute in this case is the validity of the decision of the meeting of members of the HOA - a non-profit organization acting in accordance with the Federal Law "On Associations of Homeowners". The plaintiff, as follows from its charter, is an autonomous non-profit organization without membership, pursuing socially useful goals and established on the basis of voluntary contributions from the founders, the legal status of which is determined by its charter, the Civil Code of the Russian Federation () and the Federal Law "On Non-Commercial Organizations" ( ) . Thus, the subjects of disputed legal relations are non-profit organizations, the object of the dispute is the decision of the body of one of the parties, adopted on organizational issues. Since the dispute arose over the legality of the decisions made by the meeting of members of the HOA, the disputed legal relations are characterized as arising outside the sphere of entrepreneurial or other economic activities of the parties. The dispute about the validity of the decisions of the body of the partnership is not an economic one and is not subject to consideration by the arbitration court (Resolution of the FAS SZO dated 02.02.04 in case N A13-4683 / 03-24 ()).
Thirdly, the arbitration court does not consider such disputes, the parties to which are citizens (residents apartment buildings, owners of premises who do not have the status of an individual entrepreneur) and to whom the rules on special jurisdiction do not apply.
The HOA filed a lawsuit against citizen Y. for the recovery of rent arrears. By a court ruling, left unchanged by the decision of the appellate instance, the proceedings were terminated on the basis of paragraph 1 of the first part of Article 150 of the Arbitration Procedure Code of the Russian Federation () as not subject to consideration in the arbitration court. The court of cassation upheld these judicial acts, citing the following. In accordance with Chapter 4 of the Arbitration Procedure Code of the Russian Federation (), arbitration courts have jurisdiction over cases on economic disputes and other cases related to the implementation of entrepreneurial and other economic activities arising from civil, administrative and other public legal relations, with the participation of organizations that are legal entities, citizens engaged in entrepreneurial activities without forming a legal entity and having the status of an individual entrepreneur, acquired in the prescribed manner. Disputes involving citizens who do not have the status of an individual entrepreneur are subject to consideration in an arbitration court in cases provided for by the Arbitration Procedure Code of the Russian Federation and other federal laws. In accordance with Article 33 of the Code (), which provides for special jurisdiction of cases to arbitration courts, arbitration courts consider certain categories of disputes, regardless of the subject composition of the persons participating in the case. The claims of the HOA for the recovery of arrears in rent from an individual are not among those that are considered in an arbitration court provided for in Article 33 of the Arbitration Procedure Code of the Russian Federation. Thus, the arbitration court correctly applied paragraph 1 of the first part of Article 150 of the Arbitration Procedure Code of the Russian Federation and terminated the proceedings (Resolution of the FAS SZO dated 08.06.03 in case N A56-4889 / 03 ()).
However, in a number of cases, courts come to erroneous conclusions about the existence of grounds for terminating proceedings in cases involving homeowners associations.
In accordance with Article 137 of the Housing Code of the Russian Federation (), a homeowners' association has the right to conclude contracts, perform work and provide services, dispose of property belonging to the partnership, provide for use part of the common property in an apartment building, build on and rebuild part of such property, build up adjacent to home dedicated land plot to perform other actions that meet the goals and objectives of the partnership.
Article 152 of the said Code () establishes that in order to achieve the goals provided for by the charter, a homeowners association has the right to engage in economic activities. To species economic activity, which can be dealt with by a homeowners association, include: maintenance, operation and repair of real estate in an apartment building; construction of additional premises and common property in an apartment building; leasing, leasing part of the common property in an apartment building. Similar provisions were contained in Article 41 of the Federal Law "On Associations of Homeowners".
In the event that a dispute involving a partnership of homeowners arose in connection with the implementation of economic (economic) activities by it, such a dispute is subject to consideration by an arbitration court.
The HOA applied to the head of the territorial administration of the administrative district to invalidate the order on the use of premises in a residential building. By decision of the court of first instance, the proceedings were terminated. The ruling of the Court of Appeal upheld the ruling. The cassation instance annulled the said judicial acts with the transfer of the case to the arbitration court of the first instance for consideration on the merits. The disputed order leased to a third party a non-residential premises (the basement of a residential building) for a leisure and entertainment center for a period of 10 years. The HOA referred to the fact that the contested order violated its rights, since the disputed premises are the common property of the condominium. In accordance with Article 4 of the Federal Constitutional Law of the Russian Federation "On Arbitration Courts in the Russian Federation" (), Article 1 of the Arbitration Procedure Code of the Russian () Federation, the arbitration court administers justice in the field of entrepreneurial and other economic activities. In accordance with paragraph 2 of Article 29 of the Arbitration Procedure Code of the Russian Federation (), arbitration courts consider cases of challenging non-normative legal acts of state authorities of the Russian Federation, state authorities of constituent entities of the Russian Federation, local governments, decisions and actions (inaction) of state bodies, bodies local government, other bodies and officials affecting the rights and legitimate interests of the applicant in the field of entrepreneurial and other economic activities. According to Article 198 of the Arbitration Procedure Code of the Russian Federation (), citizens, organizations and other persons have the right to apply to the arbitration court with an application for invalidation of non-normative legal acts if they believe that the contested non-normative legal acts do not comply with the law or other regulatory legal act and violate their rights and legitimate interests in the field of entrepreneurial and other economic activities, illegally impose any obligations on them, create obstacles to the implementation of entrepreneurial and other economic activities. The HOA is a legal entity, registered and included in the state register of legal entities. In accordance with Article 41 of the Law "On Associations of Homeowners" and the charter of the partnership, in order to achieve the statutory goals, the HOA has the right to lease or rent real estate that is part of the condominium and is owned by the HOA, that is, to carry out economic activities. The fact that the applicant has the status of a legal entity, as well as the fact that the dispute is related to the implementation of economic activity, is sufficient to refer the dispute to the competence of the arbitration court (Resolution of the FAS SZO dated 06.22.04 in case N A56-38698 / 03 ()).
Assessment of the powers of persons acting on behalf of the HOA
As a legal entity, the homeowners' association operates through its bodies. In accordance with articles 144 () , 145 () , 147 () of the Housing Code of the Russian Federation, bodies HOA management are the general meeting of the members of the partnership and the board of the partnership elected by it, the latter elects a chairman from among its members. According to Article 149 () of the said Code, the chairman of the board of a homeowners association acts without a power of attorney on behalf of the partnership, signs payment documents and makes transactions that, in accordance with the law, the charter of the partnership does not require mandatory approval by the board of the partnership or the general meeting of members of the partnership, performs other activities. Similar norms were contained in Article 38 of the Federal Law "On Associations of Homeowners".
When considering cases with the participation of associations of homeowners by the arbitration court importance has an assessment of the powers of chairmen when they go to court, conclude contracts, and perform legally significant actions.
The cassation instance upheld the conclusions of the appellate instance, which canceled the ruling of the court of first instance on leaving without consideration HOA statements as signed by an unauthorized person and sent the case to the same arbitration court for consideration on the merits, given the following circumstances. The application of the HOA filed with the arbitration court was signed by the chairman of the board of the partnership A. Based on the minutes of the meeting of the board of the HOA dated 08.26.04, in connection with the violation of the rights of the partnership A., it was instructed to file complaints with law enforcement agencies, the arbitration court, and the executive authority. According to Article 38 of the Federal Law "On Associations of Homeowners", the chairman of the board of the association of homeowners signs payment documents on behalf of the association and makes transactions. Within the meaning of this article, it is the chairman of the board who is the person authorized to act on behalf of the partnership without a power of attorney, including the right to sign applications submitted to the arbitration court in defense of the interests of the latter. The decision of the homeowners' meeting of July 15, 2004, the illegitimacy of which was pointed out by the party to the dispute in confirmation of A.'s lack of authority to apply to the arbitration court, was not challenged in court. A comprehensive assessment of the circumstances of the said meeting of homeowners cannot be given within the framework of the present case, since the court’s conclusions regarding the legality of the named decision of the meeting may directly affect the rights and legally protected interests of persons not participating in the present case. From the materials of the case, it is seen and not disputed that at the time of the decision to leave the application without consideration, the powers of A. as chairman of the board of the HOA were duly confirmed. Thus, during the trial, the will of the HOA regarding challenging the actions of the state body was expressed by a person whose authority is not in doubt. Under such circumstances, leaving the application of the HOA without consideration is contrary to the goals of justice (Resolution of the FAS SZO dated July 14, 05 in case N A56-19 / 2005 ()).
On the contrary, the fact that, when filing an appeal and cassation complaints on behalf of the HOA, the person who signed the complaints as the chairman of the board of the partnership did not have the appropriate authority, served as the basis for terminating the proceedings on the complaints. In confirmation of his powers as chairman of the board of the partnership, G., who signed the complaints, submitted an extract from the minutes of the board meeting dated 26.05.05. However, according to extracts from the Unified State Register of Legal Entities as of March 23, 2005 and August 11, 2005, the chairman of the board of the partnership is B., elected by the board of the HOA at a meeting on March 4, 2005. The extract from the minutes of the meeting of the board of the HOA dated May 26, 2005 does not correspond to the extract from the Unified State Register of Legal Entities as of August 11, 2005. Thus, G. did not have the authority to sign the appeal and cassation complaints on behalf of the partnership (Resolution of the FAS SZO of December 19, 2005 in case N A56-42873 / 04 ()).
According to article 53 of the Civil Code of the Russian Federation (), a legal entity acquires civil rights and assumes civil obligations through its bodies acting in accordance with the law, other legal acts and constituent documents. Accordingly, the actions of the chairman of the board of an association of homeowners can be recognized as the actions of the association itself, and the involvement of the latter in the case of a dispute arising in connection with the commission of such actions as a defendant is lawful.
The company filed a lawsuit against the HOA and LLC on the obligation of the defendants not to obstruct the plaintiff in using the rented non-residential premises. The claims were satisfied by the decision of the court. By the decision of the appellate instance, the decision was changed: the claims against the HOA were satisfied, the claim against the LLC was denied. The Court of Cassation upheld the ruling of the Court of Appeal, stating the following. According to Articles 304 () , 305 () of the Civil Code of the Russian Federation, the owner, as well as a person, although not being the owner, but owning property on the basis of the right of lifetime inheritable possession, economic management, operational management, or on another basis provided for by law or contract, may demand the elimination of any violations of his right, even if these violations were not connected with the deprivation of possession. In this case, the person who filed a negatory claim must provide indisputable evidence that the property belongs to him on the basis of ownership or other real right, as well as the commission of illegal actions that prevent the legitimate owner from exercising his rights in relation to this property, the defendant. The court established that the Company occupies non-residential premises on the basis of a lease agreement concluded with the KUGI. The disputed premises are located in the basement of a residential building, used as a cafe and has two entrances. In October 2002, during the demolition of storage facilities in the courtyard of the house, the main entrance to the premises rented by the plaintiff was concreted. It follows from the materials of the case that the obstacles in the implementation of these works were made, among other things, by S., who is the chairman of the board of the HOA. Taking into account the provisions of Article 53 of the Civil Code of the Russian Federation (), the appellate court, having comprehensively and fully examined the case materials and giving them a proper assessment, came to the correct conclusion that the Company proved a violation of its rights in the use of the disputed non-residential premises by the respondent. The HOA's argument that the Company does not have the appropriate permit and the necessary approvals for construction work on the land plot that is part of the condominium was rejected by the cassation instance, since their absence is not a reason to prevent the plaintiff from using the non-residential premises that he occupies as the title owner (Resolution of the Federal Antimonopoly Service SZO dated 01/28/04 in case N A56-5257 / 03 ()).
The validity of transactions made by the partnership of homeowners, and, accordingly, the validity of claims in disputes about the obligation of the HOA to fulfill the contractual obligations assumed, also depend on the assessment of the powers of the persons acting at the conclusion of the contracts on behalf of the partnership.
CJSC filed a claim against the HOA for the recovery of debt under the contract of assignment of the right to claim dated 03.02.04 and penalties for late payment. By the ruling of November 15, 2004, P. was involved in the case as a third party, not declaring independent claims regarding the subject of the dispute. The decision to satisfy the claims was denied. The court of cassation upheld the decision of the court, stating the following. In accordance with subparagraph 1 of paragraph one of Article 8 of the Civil Code of the Russian Federation (), civil rights and obligations arise from contracts and other transactions provided for by law, as well as from contracts and other transactions, although not provided for by law, but not contradicting it. The obligation of the HOA to pay for the acquired right of claim follows from the contract dated 03.02.04. At the same time, it is seen from the materials of the case that the specified agreement on behalf of the HOA was concluded by P. According to the charter of the HOA, the permanent executive body of the partnership is the board, the chairman of which, as can be seen from the minutes of the board meeting of May 21, 2003, was elected L. Thus, P. did not have the authority to complete the disputed transaction. In accordance with paragraph 1 of Article 183 of the Civil Code of the Russian Federation (), in the absence of authority to act on behalf of another person or in excess of such authority, a transaction is considered concluded on behalf of and in the interests of the person who made it, unless the other person (represented) subsequently directly approves this deal. From the materials of the case, it is not seen that the defendant intends to approve the disputed transaction. The HOA did not fulfill its obligations under the contract dated 03.02.04 within the terms specified in it. These obligations were not fulfilled even after the plaintiff sent the corresponding claim. In the submitted response to the statement of claim, the named contract is also not approved by the defendant. There are no data in the case file that testify to the recognition of the claim. Thus, the court came to a reasonable conclusion that in this case the contract is considered concluded on behalf of and in the interests of citizen P., therefore, the HOA is an improper defendant in this case (Resolution of the FAS SZO dated April 14, 2005 in case N A66-7317 / 2004 ()).
HOA as a representative of the owners of the premises
When considering disputes with the participation of homeowners associations by an arbitration court, it is important to decide whether the HOA is the proper plaintiff or defendant for the stated requirements, whether it is actually a party to the dispute, whether it has the right to represent and protect the interests of homeowners in specific litigation. Often, participants in disputes refer to the need for an arbitration court to terminate proceedings in a case involving an HOA or to refuse a claim, indicating that the partnership does not have its own substantive legal interest in the case. Judicial practice in this matter is not entirely homogeneous, but it is possible to identify the following areas.
The norms of the Housing Code of the Russian Federation (), as well as the provisions of the previously valid Federal Law "On Homeowners' Associations", vest the HOA with the rights and obligations to carry out activities to manage a real estate complex in an apartment building, ensure the operation of this complex, own, use and in accordance with the legislation within the limits of the disposal of common property in an apartment building, the conclusion of transactions and the performance of other actions that meet the goals and objectives of the partnership.
According to paragraph 8 of Article 138 of the said Code (), a homeowners association is obliged to represent the legitimate interests of the owners of premises in an apartment building, including in relations with third parties. Article 31 of the Federal Law "On Associations of Homeowners" imposed on the HOA, in cases provided for by law, the charter of the partnership, to represent the interests of members of the partnership in housing relations, property relations, and also in other relations with third parties.
Thus, the HOA is recognized as a representative of the owners of premises in an apartment building, acts in their interests, while acquiring independent rights and obligations associated with the implementation of its activities, and violation of such rights or failure to fulfill obligations may serve as a basis for applying to an arbitration court to resolve the dispute , to which the HOA is entitled to act as a party.
The Presidium of the Supreme Arbitration Court of the Russian Federation canceled, as violating the uniformity in the interpretation and application of the norms of law by arbitration courts, judicial acts refusing to satisfy the requirements of the HOA to invalidate the orders of the prefect on the provision of land plots and sent the case for a new consideration. In filing a lawsuit in defense of the interests of homeowners, the HOA considered these orders of the prefect illegal and violating the rights of homeowners. The courts of three instances refused to satisfy the stated requirement, since the partnership did not provide evidence of the violation of its rights and legitimate interests by the issuance of the disputed non-normative acts. In addition, the courts found that these orders were issued by the prefecture within the limits of its powers in relation to land plots free from any encumbrances. The supervisory authority, referring to Article 1 of the Federal Law "On Associations of Homeowners", paragraph 1 of Article 135 (), paragraph 8 of Article 138 of the Housing Code of the Russian Federation (), indicated that the HOA is participating in the case as a legal representative of the owners of residential and non-residential premises located in houses located at a disputed address. By virtue of Article 16 of the Federal Law "On the Enactment of the Housing Code of the Russian Federation" (), the land plot on which an apartment building and other real estate objects included in such a house are located is the common shared property of the owners of premises in an apartment building. Homeowners who are members of the HOA applied for a land plot located at the indicated address, but did not receive it. Meanwhile, other persons (two LLCs), on the basis of the disputed orders, received land plots for rent at the disputed address. Under such circumstances, the conclusion of the courts that there was no violation of the applicant's rights by issuing these orders does not correspond to the circumstances of the case and the current legislation. In refusing to invalidate the orders of the prefect, the courts did not fully verify their legality (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated June 27, 2006 in case N 1821/06 ()).
The HOA, appealing the decision of the court of first instance and the Resolution () of the appellate instance on the recovery of unjust enrichment from it due to non-payment for the transfer of hot water and heat supply pipes outside the non-residential premises, referred to the fact that it was an improper defendant on the stated demand, since the premises, in which the plaintiff performed work, as well as heat and water pipes, the transfer of which was carried out by the plaintiff, are not owned by the HOA. The cassation instance supported the judicial acts held in the case and rejected the arguments of the HOA, referring to Articles 135 (), 137 (), 138 () of the Housing Code of the Russian Federation, indicating that since the work on replacing and transferring pipes in the basement of an apartment building was carried out by the plaintiff according to agreement with the HOA, representing the interests of the owners of the premises in the house, and the result of the work was accepted by the partnership and remained at its disposal, the court rightfully satisfied the requirement to recover unjust enrichment from the HOA in the amount of the cost of the work, the fact of execution and the amount of the cost of which are confirmed by the case materials (Resolution of the FAS SZO dated 06.10.06 in case N A56-16792/2005 ()).
The procedure in accordance with which the management of apartment buildings is carried out is regulated by Section VIII of the Housing Code of the Russian Federation. According to Article 161 of the said Code (), owners of premises in an apartment building are required to choose one of the ways to manage an apartment building, among which is the management of a homeowners association. The method of managing an apartment building is chosen at a general meeting of owners of premises in an apartment building and can be changed at any time based on its decision. The decision of the general meeting on the choice of management method is binding on all owners of premises in an apartment building. A similar procedure was provided for by the Federal Law "On Associations of Homeowners".
Consequently, if a decision is made in accordance with the established procedure to manage an apartment building by a homeowners association, the HOA acts in the interests of all owners of premises in an apartment building.
By a court decision, left unchanged by the decision of the appellate instance, the claim of the HOA against the JSC on the obligation of the defendant not to obstruct the use and disposal of non-residential office premises in a residential building was denied. In dismissing the claim, the court proceeded from the fact that since the HOA unites only a part of the homeowners, it is not entitled to make claims regarding property that is in the common shared ownership of all homeowners without prior coordination of the ownership and use of common property with all homeowners. The cassation instance annulled these judicial acts and transferred the case for a new consideration to the first instance of the arbitration court, indicating the following. Subject to the provisions of Articles 20 and 22 of the Federal Law "On Homeowners' Associations," an HOA created on the basis of a decision of a general meeting of homeowners, which is mandatory, including for homeowners who did not vote, can be considered an organization authorized by all homeowners to manage a house. Based on the mentioned legal norms, the HOA has the right to make claims arising from relations related to the management, maintenance and operation of a residential building. The conclusion of the court that the HOA does not have the right to bring a claim against property that is in common shared ownership is erroneous (Resolution of the FAS SZO dated 05/19/05 in case N A56-31450 / 04 ()).
Features are characterized by cases in which claims are made to recognize the ownership of objects located in a residential building, to the common property of an apartment building, the existence of a registered ownership of such property is disputed. According to the above category of cases, as evidenced by judicial practice, the HOA was not recognized as the proper subject of the dispute, or it was indicated that it was necessary to involve persons who are owners of premises in an apartment building in the case.
CJSC filed a lawsuit against the HOA to recognize the ownership of the premises for household needs in the basement of a residential building. By a court decision, upheld by the decision of the appellate instance, the claim was dismissed with reference to Articles 289 (), 290 () of the Civil Code of the Russian Federation, according to which the common property of the house belongs to the apartment owners on the basis of common shared ownership. The court of cassation upheld these judicial acts, stating the following. Ownership of a share in the common property of the house belongs to the owners of apartments in an apartment building. It follows from the materials of the case that the owners of apartments in a residential building are citizens - individuals, and in the proceedings of the court of general jurisdiction there is a statement of claim of citizens to the HOA on recognition of the ownership of a share in the basement of the disputed house with the involvement of CJSC to participate in the case as a third faces. Thus, there is a dispute about the right to disputed basements, in which individuals participate, and this dispute, in accordance with the rules of jurisdiction, is being considered in a court of general jurisdiction. As follows from the Federal Law "On Associations of Homeowners", which was in force at the time of the consideration of this case in the courts of first and appellate instances, the association of homeowners is not a participant in shared ownership of the common property of the house, but is a non-profit organization, a form of association of homeowners created by them for joint management and maintenance of the real estate complex in the condominium. Thus, the claims of CJSC for recognition of ownership of the basement premises in an apartment building against this defendant (a homeowners association) were not subject to satisfaction (Resolution of the FAS SZO dated 04/01/05 in case N A56-15485 / 04 ()).
On a similar basis, the decision of the court of first instance and the decision of the appellate instance on the refusal of the LLC’s claim against the HOA on recognition of ownership of the electrical installation, external Electricity of the net, water supply and sewerage networks, including the premises of the water metering unit of a residential building. The court of cassation referred to the fact that the disputed property is intended to serve the entire house and is in the shared ownership of all persons with the right of ownership of the premises in this house; The HOA does not have ownership of the common property of the house, but is only vested with the authority to manage and operate the common property of homeowners (Resolution of the FAS SZO dated May 24, 06 in case N A05-8203 / 04-24 ()).
Referring for a new consideration the case on the claim of the HOA against the CJSC on the recognition of the ownership of the members of the HOA to the premises and storerooms located in the basement of the residential building, the invalidation of the certificates of state registration of the CJSC's ownership of these objects and the corresponding entries in the Unified State Register of Rights to Real Estate and transactions with him, the cassation instance indicated the following. The right of the HOA to file a claim for the recognition of the right of common shared ownership of the basement premises for the homeowners who are members of the partnership is insufficiently substantiated. Property relations are characterized by the individualization of not only the object, but also the subject of ownership, the certainty of the circle of persons who are co-owners. By virtue of Article 290 of the Civil Code of the Russian Federation (), the right of common shared ownership of the common premises of the house belongs to all apartment owners in an apartment building, and not just to those who participated in the creation of the HOA (Resolution of the FAS SZO dated 12.24.04 in case N A26-6465 / 03- 112).
Common property of apartment buildings
Many disputes considered by the arbitration court relate to the common property of apartment buildings, possession, use, disposal of such property, its maintenance, and operation.
According to Article 36 of the Housing Code of the Russian Federation (), the owners of premises in an apartment building own, on the basis of common shared ownership, premises in this house that are not parts of apartments and are intended to serve more than one room in this house, including inter-apartment landings, stairs, elevators , elevator and other shafts, corridors, technical floors, attics, basements in which there are engineering communications, other equipment serving more than one room in a given house (technical basements), as well as roofs enclosing load-bearing and non-bearing structures of this house, mechanical, electrical , sanitary and other equipment located in this house outside or inside the premises and serving more than one room, the land plot on which this house is located, with landscaping and landscaping elements and other objects intended for maintenance, operation and improvement of this house, located e on the specified land plot (common property in an apartment building). The boundaries and size of the land plot on which the apartment building is located are determined in accordance with the requirements of land legislation and legislation on urban planning.
Article 1 of the Federal Law "On Associations of Homeowners" defined the concept of a condominium, which recognized a single complex of real estate, including a land plot within the established boundaries and a residential building located on it, other real estate objects in which separate parts intended for residential or other purposes ( premises) are owned by citizens, legal entities, the Russian Federation, constituent entities of the Russian Federation, municipalities (homeowners) - private, state, municipal and other forms of ownership, and the remaining parts (common property) are in their common shared ownership. Article 7 of the same Law provided that common property in a condominium is inter-apartment stairwells serving more than one homeowner, stairs, elevators, elevator and other shafts, corridors, roofs, technical floors and basements, enclosing load-bearing and non-bearing structures, as well as mechanical, electrical , plumbing and other equipment located outside or inside the premises and serving more than one premises, adjacent land plots within the established boundaries with landscaping and landscaping elements, as well as other objects intended to serve the single complex of real estate of the condominium and serving its use.
The HOA applied to the arbitration court with an application to recognize as illegal the Department's refusal to provide the land plot on which the residential building, which is part of the condominium, to the common shared ownership of the homeowners and the obligation of the Department to take the necessary actions. In support of this refusal, it was stated that consideration of the issue of granting a land plot to the common shared ownership of homeowners is possible only after the submission of an act of permitted use of the land plot, in view of the failure to submit such an act, it is possible to formalize land-legal relations for the land plot on a short-term lease. By the decision of the court, left unchanged by the decision of the appellate and cassation instances, the satisfaction of the stated requirements was denied. The Supreme Arbitration Court of the Russian Federation annulled these judicial acts as violating the uniformity in the interpretation and application of the rules of law by arbitration courts and referred the case for a new consideration to the arbitration court of first instance, indicating the following. The dispute between the parties arose not over a newly provided land plot, but in relation to a plot occupied by a residential building, the apartment owners in which organized an association of homeowners. By virtue of Article 4 of the Federal Law "On Associations of Homeowners", which was in force at the time the dispute arose, a residential building in which premises are owned by at least two homeowners is recognized as a condominium. Article 7 of the said Law stipulates that adjacent land plots within the established boundaries are also common property in a condominium. According to Article 8 of the Law, the common property in a condominium is in the common shared ownership of the homeowners. A similar provision is contained in Article 36 of the Housing Code of the Russian Federation, which came into effect on 01.03.05. Paragraph 4 of Article 11 of the Federal Law "On Associations of Homeowners" establishes that the transfer of ownership of the normative part of the land plot free of charge is carried out by state executive authorities or local governments in accordance with the law. Under such circumstances, it should be recognized that the refusal to register such a right on the grounds that the homeowners do not have an act of permitted use of the land plot is contrary to the law (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated May 16, 06 N 781/06 ()).
The land plot on which the residential building is located belongs to the common property of the owners of the premises in the house. The erection of buildings on such a plot without obtaining the necessary permits is illegal, and the homeowners association has the right to demand the elimination of violated rights.
The HOA filed a lawsuit against the LLC on the obligation of the defendant to demolish unauthorized buildings in the arched opening of a residential building. The claim was partially satisfied by the decision. By a decision of the appellate instance, the court's decision was canceled in part of the refusal of the claim, the stated requirements were satisfied. The materials of the case confirmed that a condominium was registered at the disputed address. According to the home ownership passport, the condominium as a single real estate complex included a 5-storey house with a basement and an attic and a land plot. The non-residential premises 1-N, which is part of the condominium, located in the basement of the said house, has been occupied since 1991 by LLC on the basis of a lease agreement with the KUGI, which is confirmed by the case materials and explanations of the parties. The entrance to the room 1-N, used by LLC for a cafe, from the side of the arched passage is equipped with a pit 4 steps down, a metal grate, metal poles, plywood partition. The Court of Appeal came to a reasonable conclusion that since 1991, LLC had rented the said premises, which had only an entrance (former window) from the side of the arched opening, and the subsequent work to create a pit, a metal fence, a lattice, lampposts, a plywood partition produced without the appropriate approvals and permits. The absence of permits for the performance of these works is confirmed by the materials of the case, which the court of appeal gave a proper legal assessment. The Court of Appeal rightfully reversed the decision of the Court of First Instance regarding the dismissal of the claim and satisfied the stated requirements in full, since the land plot on which the disputed structures were erected belongs to the common property of the homeowners. Accordingly, the construction of these structures without the consent of all homeowners and in the absence of permits for the performance of work violates the rights of the plaintiff. The violated right is subject to elimination by restoring the situation that existed before the violation of the right (Resolution of the FAS SZO dated April 20, 04 in case N A56-17105 / 03 ()).
In accordance with Article 39 of the Housing Code of the Russian Federation () the owners of premises in an apartment building bear the burden of maintaining the common property in an apartment building; the share of mandatory expenses for the maintenance of common property in an apartment building, the burden of which is borne by the owner of premises in such a house, is determined by the share in the right of common ownership of common property in such a house of the indicated owner. The legal norms on imposing on homeowners the burden of expenses for the maintenance and repair of common property were contained in Article 16 of the Federal Law "On Associations of Homeowners".
Decree of the Government of the Russian Federation of August 13, 06 N 491 () approved the Rules for the maintenance of common property in an apartment building and the Rules for changing the amount of payment for the maintenance and repair of residential premises in the event of the provision of services and performance of work on the management, maintenance and repair of common property in an apartment building of improper quality and (or) with interruptions exceeding the established duration.
The HOA has the right to demand from the owner of premises in an apartment building the fulfillment of obligations to participate in the costs of maintaining common property in proportion to its share, and may also conclude an agreement with a person occupying premises in an apartment building on participation in the costs of maintaining and repairing common property.
The HOA filed a lawsuit against LLC for the recovery of debt under an agreement on equity participation in the costs of maintaining and repairing common property in a condominium, and providing utilities. The decision satisfied the claim in full. The ruling of the Court of Appeal reversed the decision. A smaller amount was recovered from the defendant in favor of the plaintiff, taking into account the partial repayment of the amount of the debt by the defendant. As can be seen from the case file, the parties entered into an agreement on shared participation in the costs of maintaining and repairing common property in the condominium, and providing utilities. Under the terms of this agreement, the plaintiff is obliged to ensure that the LLC performs work on maintenance and repair of common property in the condominium for a set fee. The LLC's share in the costs of maintaining and repairing the common property in the condominium is proportional to the share of the premises it leases. The volume of services rendered, their amount is confirmed by the submitted documents, certificates of work performed, relevant calculations. The cost of maintenance services is also confirmed by the case file. Consumption calculation cold water made by the plaintiff in accordance with the terms of the contract and taking into account the testimony of the house meter. Any documents refuting the correctness of the plaintiff's calculations were not presented in the case file. In accordance with Article 249 of the Civil Code of the Russian Federation (), each participant in shared ownership is obliged, in proportion to his share, to participate in the payment of taxes, fees and other payments on common property, as well as in the costs of maintaining and preserving it. Under such circumstances, the recovery of debt from the defendant is lawful (Resolution of the FAS SZO dated April 21, 05 in case N A56-14606 / 04 ()).
The association of homeowners must not interfere with the use of premises located in an apartment building, the ownership of which is registered for other persons. The HOA is not entitled to refer that such objects are in the common shared ownership of the owners of premises in an apartment building, if the registered ownership right is not challenged in court and the dispute is not resolved in favor of the participants in the common shared ownership.
LLC filed a lawsuit against the HOA to remove obstacles to the use and possession of non-residential premises in a residential building by obliging the defendant to vacate the said premises. The decision, upheld by the decision of the appellate court, satisfied the claims. The court of cassation left the judicial acts held in the case in force, referring to the following. LLC is a tenant of the disputed non-residential premises under an agreement with KUGI. The court found that the HOA prevents the plaintiff from using the said premises. The HOA believes that the disputed premises are the common shared property of the homeowners in the condominium, and therefore the KUGI is not entitled to rent it out. The materials of the case confirm that the right of state ownership of the city of St. Petersburg is registered for the disputed premises. In accordance with paragraph 1 of Article 2 of the Federal Law "On State Registration of Rights to Real Estate and Transactions with It" (), state registration is the only evidence of the existence of a registered right. The registered right to immovable property can only be challenged in court. The state registration of the ownership of the city of St. Petersburg on this premises has not yet been challenged. In such circumstances, the court reasonably proceeded from the fact that the premises rented by the plaintiff are state property of the city of St. Petersburg. KUGI, as a body specially authorized by the owner, legally leased it. In accordance with Article 305 of the Civil Code of the Russian Federation () the right to claim property from someone else's illegal possession (Article 301 of the said Code ()), the right to demand the elimination of any violations of the right, even if these violations were not connected with deprivation of possession (Article 304 of the same of the Code ()), also belong to a person, although not being the owner, but owning the property on the right of lifelong inherited possession, economic management, operational management, or on another basis provided for by law or contract. LLC owns the above premises on the basis of a lease agreement. Therefore, in accordance with Article 305 of the said Code, the plaintiff, as the title owner of the property, has the right to demand the elimination of the obstacles placed on him in the use of this premises (Resolution of the FAS SZO dated July 28, 2004 in case N A56-25459 / 03 ()).
Claims against construction companies
As mentioned above, the main functions of a homeowners' association are the management of a complex of real estate in an apartment building, ensuring its operation, possession, use, disposal, within the established limits, of common property in an apartment building.
In judicial practice, there are cases in which HOAs file claims against construction organizations to eliminate the shortcomings admitted during the construction of apartment buildings and identified during their operation. To resolve the issue of the validity of the stated requirements, it is important to assess the circumstances of the commissioning of the disputed facilities. The fact that the object was accepted for operation without comment, completed in accordance with the approved project, and the relevant act, the decision of the acceptance committee were not invalidated, may serve as a basis for dismissing the claim.
The HOA filed a lawsuit against the Federal State Unitary Enterprise and LLC on the obligation to eliminate the shortcomings made during the construction of heating networks of a residential building. OJSC and ZhSK were involved as third parties in the case. By the decision of the court, left unchanged by the decision of the appellate instance, the claim was dismissed. The court of cassation left these judicial acts unchanged. It follows from the materials of the case that ZhSK and FGUP entered into an agreement dated 02.02.01 for the performance of work on the construction of a residential building. The work was carried out in accordance with the design documentation developed by OJSC and LLC. According to the act of December 25, 2002, the residential building was completed in accordance with the project, meets sanitary and epidemiological, fire, building codes and regulations, state standards and put into operation; communications ensure the normal operation of the facility and are accepted by users - operating organizations. ZhSK and HOA signed an agreement dated 05.01.04 on the transfer to free use HOA of common areas, office premises, water metering and heating units, other property. The basis for the HOA's appeal to the arbitration court with this claim was the discovery during the operation of a residential building of shortcomings, as a result of which the temperature in residential premises in winter does not reach +10 degrees Celsius. Denying the claim, the court concluded that there were no violations of building codes and regulations during the construction of a residential building, pointing to the act of acceptance, by which the house was accepted for operation without comment. The Court of Appeal also referred to the expert opinion, according to which the external heating system of the residential building complies with the design of the external heat pipeline. In the cassation appeal, the HOA referred to the court's improper assessment of the evidence in the case. By virtue of Part 2 of Article 287 of the Arbitration Procedure Code of the Russian Federation (), the arbitration court considering the case in the cassation instance is not entitled to establish or consider proven circumstances that were not established in the decision or resolution or rejected by the court of first instance or appeal, prejudge questions about the reliability of that or other evidence, the advantage of some evidence over others. Reassessment of the evidence available in the case is beyond the powers of the court of cassation. In addition, the claim was filed by the HOA on the basis of Articles 723 () and 754 of the Civil Code of the Russian Federation (), regulating relations between the customer and the contractor regarding the inadequate quality of work. The HOA was not the customer of the work, the elimination of the shortcomings of which is the subject of a dispute, therefore, the HOA is not entitled to make claims on the specified legal grounds(Resolution of the FAS SZO dated 07.28.06 in case N A56-33647 / 04 ()).
The need to perform construction and repair work on the real estate complex of an apartment building, to draw up design and other documentation, entails the conclusion by homeowners associations of work contracts with third parties, and disputes related to non-performance or improper performance of such contracts are considered by the arbitration court.
LLC filed a lawsuit against the HOA for the recovery of debt under the agreement dated 19.02.04 and penalties. The HOA filed a counterclaim to invalidate the contract. By the decision of the court, left unchanged by the decision of the appellate instance, the satisfaction of the initial and counterclaims was denied. The Court of Cassation upheld the judgments in the case. Under an agreement dated February 19, 2004, LLC undertook to conduct an examination of the project of a residential building and draw up design and estimate documentation for the specified object, and the HOA - to pay for these services in the manner and within the time specified in the said agreement. When filing a claim, LLC indicated that the work was fully completed and handed over under the act dated 10.05.04. Based on the content of the contract, the court qualified it as a work contract and came to the conclusion that the LLC performed only a summary estimate of the cost of construction, and the examination and preparation of project documentation were not actually completed, the act dated 10.05.04 contains unreliable information about the performance of all work under the contract. The appellate instance pointed out that since the LLC did not fulfill the entire scope of work stipulated by the contract, the HOA did not have any obligations to pay for the work. Article 711 of the Civil Code of the Russian Federation () provides that the customer is obliged to pay the contractor the agreed price after the final delivery of the results of the work, provided that the work is performed properly and within the agreed time. The contract dated February 19, 2004 stipulates that the contractor undertakes to transfer to the customer everything received as a result of the execution of his instructions under the acceptance certificate. However, the fulfillment by the LLC of this condition of the contract was not confirmed, in connection with this, no violation of the obligations on the part of the HOA to pay for the work performed was established (Resolution of the FAS SZO dated 01.07.05 in case N A56-29135 / 04 ()).
Contracts for the supply of energy, provision
utilities
In accordance with Article 137 of the Housing Code of the Russian Federation (), a homeowners association has the right to conclude, in accordance with the law, an agreement on the management of an apartment building, as well as agreements on the maintenance and repair of common property in an apartment building, agreements on the provision of utility services and other agreements in the interests of members of the partnership . The norms on the right of HOA to conclude contracts were also contained in Article 29 of the Federal Law "On Associations of Homeowners". Failure to pay for the supplied energy, rendered utilities is the basis for presenting claims to the HOA for the collection of debts.
MUP filed a lawsuit against the HOA for the recovery of arrears in payment for thermal energy consumed for the needs of residential and non-residential premises. By the decision of the court, left unchanged by the decision of the appellate instance, the debt for thermal energy released for the needs of residential premises, the rest of the claim is denied. The court of cassation left these judicial acts unchanged, indicating the following. MUP and HOA concluded an agreement under which the plaintiff undertook to release, and the defendant - to receive and pay for thermal energy. When filing a lawsuit, MUP referred to the non-payment of the supplied thermal energy by the HOA. Objecting to the suit, the HOA pointed out that payment for the thermal energy released for the needs of the basement should be made by the owners of the premises located in the basement. Since the plaintiff did not prove that the basement premises are part of the condominium and that the HOA is the actual consumer of heat energy in the amount presented for payment, the court rightfully collected from the HOA the amount of debt for the heat energy supplied for the needs of residential premises (Resolution of the FAS SZO dated February 12, 2004 in case No. A13-3767/03-04 ()).
When considering disputes arising from the conclusion and improper execution of contracts for the supply of energy, the provision of public services, the HOA is not deprived of the opportunity to object to the validity of such contracts. These arguments are subject to evaluation by the arbitration court.
The HOA (defendant in the case) referred to the nullity of the agreement under which the HOA undertook to compensate the CJSC's expenses for paying for the heat resources supplied to the defendant and on the basis of which the CJSC filed a claim to recover the amount of debt from the HOA. The cassation instance, upholding the decision of the court of first instance and the decision of the appellate instance to satisfy the claim, indicated that since the state registration of the HOA it is an independent legal entity, and therefore the defendant's arguments about the nullity of the contract concluded after the said registration cannot be recognized as legitimate , in accordance with the established procedure, the contract is not challenged. The expenses incurred by the CJSC in favor of the HOA, which as a result saved the money payable for the received heat energy, were rightfully recovered by the court in favor of the plaintiff (Resolution of the FAS SZO dated July 26, 2005 in case N A56-21724 / 04 ()).
Objecting to the claim of the State Unitary Enterprise for the recovery of debts for payment for thermal energy supplied under the contract, the HOA referred to the fact that the contract was not concluded due to the failure of the parties to reach an agreement on the price of thermal energy, as well as to its expiration. The court of cassation upheld the decision of the court to satisfy the claim, referring to the following. Since the parties reached an agreement on all essential conditions supply of thermal energy, the contract is considered concluded. Due to the fact that the parties have not determined the price at which thermal energy should be paid, the court rightfully, on the basis of paragraph 1 of Article 424 of the Civil Code of the Russian Federation (), concluded that the tariffs established by the regional energy commission in accordance with Articles 2 and 6 of the Federal Law "On state regulation tariffs for electricity and heat in the Russian Federation "(). Since there is no evidence that before the expiration of the contract, the defendant made proposals to terminate, amend the contract or conclude a new contract, the contract was extended for the next period on the same terms. In in accordance with the terms of the contract, the supply of heat energy was carried out for the needs of the residents of the house.Due to the presence of an outstanding debt on payment of heat energy by the defendant, the court made a reasoned decision on its recovery in favor of the State Unitary Enterprise (Resolution of the Federal Antimonopoly Service of the SZO dated March 23, 2005 in case No. A44-4765 / 04-C12).
The HOA asked to invalidate clause 5.2 of the contract for the provision of water supply and sewerage services, according to which the amount of payment is determined based on the volume of drinking water and adopted Wastewater according to meter readings. By the decision of the court of first instance, left unchanged by the decisions of the appellate and cassation instances, the claim was dismissed. In accordance with paragraph 11 of the Rules for the use of public water supply and sewerage systems in the Russian Federation, the supply (receipt) of drinking water and (or) the reception (discharge) of wastewater is carried out on the basis of an energy supply agreement related to public contracts (Article 426 ()).
As court practice shows, a homeowners association has the right to demand from the owner of premises in a residential building reimbursement of expenses for the maintenance of housing, payment of utilities.
The HOA filed a lawsuit against KUMI for the recovery of arrears in payment of expenses for the maintenance of housing and utilities, as well as interest on the use of other people's money. By the decision of the court, the claim was satisfied in part of the recovery of the amount of expenses. The cassation instance upheld the decision, indicating that the court rightfully referred to Article 210 of the Civil Code of the Russian Federation (), Articles 17, 30 of the Federal Law "On Associations of Homeowners" in force during the period under review, the charter of the HOA and came to the correct conclusion that the expenses incurred by the plaintiff are subject to reimbursement by KUMI as the owner of an apartment located in a residential building (Resolution of the Federal Antimonopoly Service of the SZO dated 15.06.05 in case N A13-9132 / 04-13 ()).
However, the court dismissed the claim for the recovery of debt for utilities rendered from the tenant (CJSC) of the premises in a residential building. The court of appeal upheld the court's decision; The cassation instance upheld the judicial acts held in the case, stating the following. According to Article 17 of the Federal Law "On Associations of Homeowners", water, heat, gas, electricity, hot water, sewerage and other utilities are paid by homeowners - owners of premises in a real estate complex. They are also responsible for the timeliness of payments by tenants or tenants of their premises. CJSC, not being a homeowner, rents premises from KUGI. Evidence that the general meeting of the HOA made a decision to impose on the tenant the obligation to pay the costs of maintaining and repairing common property, as well as making utility bills, as provided for in paragraph 5 of Article 17 of the said Law, was not presented to the court. The corresponding agreement with ZAO has not been concluded. Under such circumstances, the legal relations that have arisen do not allow collecting debts for services from CJSC (Resolution of the FAS SZO dated July 23, 03 in case N A56-28550 / 02 ()).
As for the claims for the recovery of penalties from the HOA for violation of contractual obligations to timely pay for the supplied energy, rendered utilities, the court most often refuses to satisfy such claims, taking into account the special status of the HOA as a non-profit organization, the nature of its activities.
The cassation instance upheld the decision of the court of first instance on the refusal of the State Unitary Enterprise in the claim against the HOA for the recovery of debt under the heat supply agreement (in connection with the repayment of the main debt by the defendant before the resolution of the dispute by the court) and interest for the use of other people's funds, pointing to correct application court of articles 395 (), 401 of the Civil Code of the Russian Federation () . The HOA carries out its activities at the expense of funds received from members of the partnership in the form of entrance and other contributions, mandatory payments for utilities, contributions to the current and overhaul, donations or other charitable sources. To apply liability in the form of payment of interest, it is necessary to establish the fact that the debtor uses the funds intended for the creditor. According to the charter of the HOA, it is not a commercial organization, its obligations under the heat supply agreement are not related to entrepreneurial activities. Thus, the HOA could only be liable for its obligations with the funds at its disposal received from the residents of the house for utilities. There is no evidence in the case of the availability of funds sufficient to pay off the debt on the defendant's settlement account, which he unlawfully used and derived income. The amount of debt by the defendant was fully transferred to the State Unitary Enterprise as funds were received from the residents of the house, that is, the HOA accepted everything possible measures for the proper fulfillment of obligations (Resolution of the FAS SZO dated April 28, 05 in case N A56-38535 / 04 ()).
Reimbursement of expenses incurred by the HOA in connection with
providing subsidies to pay
housing and communal services
According to article 159 of the Housing Code of the Russian Federation (), citizens are provided with subsidies for paying for housing and utilities. This article defines the cases of granting subsidies, the circle of persons entitled to receive them, the procedure for granting subsidies, determining their amount, as well as financing the corresponding costs incurred in connection with the provision of subsidies. In accordance with Article 160 () of the same Code certain categories Citizens may be provided with compensation for the costs of paying for housing and communal services at the expense of the relevant budgets. The rules on the provision of subsidies, compensations and subsidies were contained in Article 19 of the Federal Law "On Associations of Homeowners".
Quantity HOA appeals with claims for reimbursement of expenses incurred in connection with the provision to citizens living in residential buildings of benefits for paying for housing and utilities, for the recovery of compensation for subsidies is quite large. The legislation provides for the provision of benefits, subsidies to various categories of citizens (military personnel, veterans, the disabled, the poor, and other categories). Depending on whether the procedure for compensating the relevant expenses is regulated at the legislative level and how, the issue of satisfying the stated requirements is resolved.
So, for example, according to the judicial practice of previous years, the recovery of losses incurred by homeowners' associations in connection with the provision of benefits for paying utility bills to employees of the internal affairs bodies, military personnel, war veterans, and reserve military personnel was carried out at the expense of the treasury of the Russian Federation.
By the decision of the court of first instance, left unchanged by the decisions of the appellate and cassation instances, the claims of the HOA for the recovery of losses incurred in connection with the provision of benefits for paying for residential premises and utilities to employees of the internal affairs bodies and their families were satisfied. Courts proceeded from the following. When collecting fees from residents, the HOA took into account the benefit established by Article 30 of the current Law of the Russian Federation "On Police" (), according to which police officers and their family members living with them are provided with a 50 percent discount when paying for utilities, which, along with others the benefits established by the specified norm of the Law are compensated from the budgets at the expense of which the police units are financed. However, the mechanism and sources of reimbursement of expenses incurred by the organizations that provided the said benefit have not been defined by the legislation so far. The federal legislator did not fulfill its obligations to resolve the issue under consideration, while the disputed benefit was granted by federal law. In this regard, the provision, in accordance with Article 30 of the Law "On the Police", benefits for paying utility bills until the proper settlement of the legal relations arising in this case by the federal law, which provides for the distribution of relevant costs between the budgets of all levels, should be made at the expense of the federal budget. There is no evidence of transfers from the federal budget for transfers to provide benefits for paying communal services to employees of the internal affairs bodies; case materials confirmed that the employees of the internal affairs bodies in question are financed from the federal budget. The claimed amount was rightfully recovered from the treasury of the Russian Federation (Resolution of the Federal Antimonopoly Service of the SZO dated May 13, 2004 in case No. A05-6492 / 03-23).
The court collected the costs of providing benefits for paying housing and communal services to veterans at the expense of the treasury of the constituent entity of the Russian Federation, taking into account the relevant provisions of federal and regional legislation.
The cassation instance satisfied in full at the expense of the treasury of the Republic of Karelia the claim of the HOA for the recovery of expenses incurred in connection with the provision of benefits to citizens for paying for housing and utilities in accordance with the Federal Law "On Veterans" () and the Law of the Republic of Karelia "On Establishing the Rank" Veteran of Labor of the Republic of Karelia "and the procedure for its assignment". According to Article 10 of the said Federal Law, the costs of the implementation of benefits for paying for housing and utilities are reimbursed at the expense of the budgets of the constituent entities of the Russian Federation. The procedure for reimbursement of these expenses is approved by the executive authorities of the constituent entities of the Russian Federation. Expenses of public authorities of the constituent entities of the Russian Federation, local governments related to the provision of benefits to veterans are taken into account in the mutual settlements of the federal budget and the budgets of the constituent entities of the Russian Federation. Since the court found that the funds allocated from the budget of the Republic of Karelia were not enough to reimburse all expenses related to the provision of housing and utility benefits to veterans, the plaintiff's claims were subject to satisfaction in full at the expense of the treasury of the constituent entity of the Russian Federation (Resolution of the FAS SZO dated 10/18/05 in case N A26-1006 / 2005-16 ()).
When determining the amount of recoverable expenses, value added tax is not taken into account.
Leaving unchanged the decision of the appellate instance on the partial satisfaction of the claim of the HOA for the recovery of expenses incurred as a result of providing the citizen and members of his family living with him with benefits for paying for housing and utilities provided for by the Law of the Russian Federation "On the rehabilitation of victims of political repression" (), cassation The court pointed out that since the compensation for expenses incurred in connection with the provision of services to privileged categories of consumers, received from the state body authorized to pay it, is not an object of taxation, the court of appeal reasonably refused the HOA to recover the amount of money equal to the amount of value added tax. The defendant's argument about the absence of his guilt in causing losses to the plaintiff was not taken into account, since the legal relations arising between persons providing services to privileged categories of citizens and making payments by authorized state bodies are public and compensation to the first for the costs of providing these services cannot be put in dependence on the presence or absence of guilt of the second (Decree of the FAS SZO dated November 30, 04 in case N A05-2124 / 04-2 ()).
Bringing the HOA to administrative responsibility
The activities of homeowners' associations can be checked for compliance with the requirements of the law, and if committed offenses are detected, the HOA is brought to administrative responsibility. The decision of the administrative body to bring the HOA to administrative responsibility may be challenged by the partnership by filing an appropriate application with the arbitration court.
Judicial practice shows that the satisfaction of the requirements of the HOA to declare it illegal and cancel the decisions of administrative bodies on bringing to administrative responsibility can take place if the fact that the partnership has committed an administrative offense is not proven, if the actions of the HOA do not violate the law and they do not contain the elements of a sane offense.
The cassation instance upheld the court's decision to satisfy the application of the HOA to recognize it as illegal and cancel the decision of the tax authority to bring the partnership to administrative liability under Article 14.5 of the Code of Administrative Offenses of the Russian Federation (), taking into account the following circumstances. In accordance with this article, the HOA was brought to administrative responsibility for carrying out trading activities without the use of cash registers and forms strict accountability. However, the materials of the case confirm that, at the request of the homeowners, money was received from the tenants for the purchase of keys to the intercom. The collected money was transferred to the representative of the LLC, which installed an intercom that opens with magnetic keys. The accepted payment for the keys was not accounted for at the cash desk of the HOA and was not reflected in its reporting. In violation of Article 210 of the Arbitration Procedure Code of the Russian Federation (), no evidence was presented that it was the HOA that sold the keys for cash. The fact that the HOA committed an administrative offense has not been proven (Resolution of the FAS SZO dated 08.29.05 in case N A56-46100 / 04 ()).
Often homeowners' associations are brought to administrative responsibility for violation of land legislation (unauthorized occupation of a land plot, use of a land plot without title documents, misuse of a land plot).
In the case considered in 2004, one of the grounds for declaring illegal and canceling the decision of the administrative body to bring the HOA to administrative liability for violation of land legislation was the fact that the HOA, as a legal form of a legal entity, acts only as a management body and the most efficient use of the property included in the condominium, and is not the owner, owner or user of this property; the disputed land plot is indivisible, the premises located on it as part of a residential building belong to different owners, the users of the land plot under this building are participants in shared ownership of common property (homeowners) ).
Subsequently, in judicial acts on cases of challenging the decisions of administrative bodies on bringing the HOA to administrative responsibility, this circumstance was not indicated. When considering such cases by the arbitration court, the actions of the HOA were assessed in terms of their compliance with the law, depending on which the issue of satisfying or rejecting the stated requirements was decided.
As a result of checking the use of a land plot adjacent to a residential building, it was found that the site is occupied and is actually used by the HOA without duly executed title documents for the land. The HOA was brought to administrative responsibility, which served as the basis for the partnership’s appeal to the arbitration court with a statement to declare it illegal and cancel the presentation on an administrative offense and the decision to impose administrative fine. By a court decision, left unchanged by the decisions of the appellate and cassation instances, the application was denied. According to the materials of the case, the territory of the land plot adjacent to the residential building is fenced with a metal fence, guard booths are installed at its corners, and there is a barrier. This site belongs to the category of public land. The land plot is used by the HOA, the fencing of this site was made in the interests and for the use of the HOA, the district administration refused to provide this plot to the HOA. Thus, the fact of using the land plot by the HOA without duly executed title documents for the land is confirmed by the case materials. The administrative body did not violate the procedure for bringing the HOA to administrative responsibility. The submission on the obligation of the HOA to vacate the occupied land plot was issued within the competence of the named body, complies with the law, bringing the partnership to administrative responsibility is lawful (Resolution of the FAS SZO dated 08.11.05 in case N A56-47989 / 04 ()).
Reimbursement of court costs
Participating in the arbitration process, being a party to the litigation, an interested person, the HOA has the relevant procedural rights and obligations. The HOA can file petitions, give explanations, present its arguments, appeal against judicial acts.
Termination of proceedings in a case involving a partnership of homeowners due to the fact that the dispute is not under the jurisdiction of an arbitration court does not prevent the partnership from claiming reimbursement of court costs.
The Arbitration Court terminated the proceedings on the case filed by the Organization against the HOA to invalidate the decision of the general meeting of its members due to the lack of jurisdiction of the dispute to the Arbitration Court. The HOA filed an application to recover from the Organization the costs of paying for the services of a representative incurred during the consideration of the case in the court of first instance. The court of first instance, with which the appellate instance agreed, partially satisfying the application of the partnership, referred to Article 110 of the Arbitration Procedure Code of the Russian Federation (), according to which the costs of paying for the services of a representative, incurred by the person in whose favor the judicial act was adopted, are recovered by the arbitration court from another person participating in the case, within reasonable limits. The cassation instance upheld the this issue judicial acts, stating the following. Both the HOA and the Organization are non-profit organizations, and the disputed relations between them arose outside the sphere of entrepreneurial or other economic activities of the parties. The plaintiff applied to the arbitration court in violation of the rules of jurisdiction, which resulted in the termination of the proceedings due to the lack of jurisdiction of the dispute to the arbitration court. From the content of Article 110 of the Arbitration Procedure Code of the Russian Federation, it follows that the distribution of court costs between the parties is based on the principle of reimbursement from the right side at the expense of the wrong one. Consequently, the defendant's legal expenses are subject to reimbursement at the expense of the plaintiff who applied to the arbitration court in violation of the rules of jurisdiction, which entailed the need for the defendant to protect his interests. The norms of the Arbitration Procedure Code of the Russian Federation on the distribution of court costs between the parties were correctly applied by the court (Resolution of the FAS SZO of November 23, 2004 in case No. A13-4683 / 03-24).
The foregoing allows us to conclude that cases considered by arbitration courts involving homeowners' associations are very diverse in the nature of disputes and their content. Homeowners' associations actively use the right to appeal to an arbitration court in defense of violated or disputed rights and legitimate interests, and show their "viability" in the arbitration process. If the process of creating homeowners' associations develops, new developments in judicial practice will also appear, which will be important to help ensure the normal operation of homeowners' associations.
Yu.A. Ranneva, assistant judge of the Federal Arbitration Court of the Northwestern District.
HOA activities: theory and practice
Upon transition from the status of a tenant of a dwelling to the status of an owner, a person acquires the right to participate in the management of an apartment building. According to the law, this function can be implemented both by the owner personally and by the HOA (homeowners association).
From the point of view of legislation, the picture is quite attractive - apartment owners have the right to solve a wide range of issues related to utilities, income and expense management, rental of common property, etc. But in practice, problems often arise - the amount of utility bills and the quality of services do not suit residents, which forces them to sue the HOA, demanding a revision of the payment.
The activities of associations are regulated by the Housing Code. When resolving disputes with the HOA, the best solution would be to seek professional legal assistance. Qualified lawyers of Legal Support provide a full range of services in resolving disputes in pre-trial and judicial procedures. Experts with many years of experience in this field provide support in case of questions of any complexity.
When should I file a claim for the HOA?
The following cases may serve as grounds for filing a lawsuit:
- you have a suspicion that the partnership is stealing your funds or misusing them;
- there are serious grounds for believing that the partnership violates the law;
- you are not satisfied with the quality of the services provided.
If you are faced with one of the above problems, we will help you properly file a lawsuit against the HOA and represent your interests in court, seeking the protection of your rights.
It should be remembered that each apartment owner has every right to file a lawsuit against the HOA. The management of the house is carried out on behalf of the owner of the dwelling, and it is from him that the payment for utilities, maintenance of the house, its repairs and the work of the employees of the partnership is collected. This gives him reason to rely on quality service.
The owner has the right to resolve issues related to the development of the local area, the organization of the concierge service, parking, etc. However, his opinion may not coincide with the point of view of other apartment owners and the partnership. If in a dispute with the HOA it is not possible to resolve the issue, you can try to restore justice in court. High-quality assistance in this matter can be obtained from our company - lawyers will make every effort to achieve a positive result.
Making a decision to go to court
When considering a dispute with the HOA in court, it is possible to establish how legal the bills and the increase in utility bills are. In addition, in the course of the trial, it can be determined whether the partnership has a legal right to exist. According to the law, a mandatory prerequisite for organizing an HOA is a statement from the owners. In addition, each of the latter has the right to withdraw from it at any time, so regular verification of the number of votes is necessary.
Legal Support lawyers provide advice on all legal issues related to homeowners associations and provide legal assistance at various stages of litigation. Experienced specialists will prepare a lawsuit against the HOA and represent your interests before the judge, seeking the protection of your legal rights.
With the participation of professionals, litigation with HOAs is not such an insoluble task as it might seem to an ordinary citizen. In case of any violations of the law on the part of the partnership managing the house, please contact us - we will help protect your interests.
A homeowners association (HOA) is a non-profit association of owners of housing in apartment buildings or owners of neighboring plots with residential buildings, cottages. The procedure for the creation and the very activity of the HOA is regulated by the Housing Code of the Russian Federation and the Law "On Associations of Homeowners". Litigation on civil affairs with the participation of the HOA, they are conducted around the requirements to invalidate the very fact of the founding of the HOA, its liquidation, or individual decisions taken by the general meeting of the partnership.
Challenging the decisions of the general meeting
An analysis carried out by specialists of 15 decisions of the cassation and 1 supervisory instances of Moscow for 2009-2010 showed that the decision of the general meeting of owners can be successfully challenged in court. The basis for recognizing such a decision as invalid may be a violation of procedural issues:
- absence of a quorum - a sufficient number of meeting participants to make a decision;
- violation of the procedure for notification of a meeting;
- violation of the procedure for holding meetings;
- violation of the procedure for counting votes;
- violation of the form of the meeting.
For example, absentee voting is a weighty reason to challenge the decision of the HOA meeting in the courtroom. If there has been such a gross violation of the form of meetings, the verdict will most likely be in favor of the plaintiff. Thus, the Babushkinsky District Court satisfied the claims against the Taymyrskaya HOA on the grounds that the general annual meeting was held in the form of absentee voting, which means that its decision cannot be legal. Attempts to challenge this verdict were unsuccessful, because extramural voting is contrary to the Housing Code of the Russian Federation and the provisions of the HOA Charter itself. Dissatisfied members of the HOA sometimes come to legal advice, unsure that the claim can be resolved in their favor, since the Charter allows for discrepancies, and some of its wording plays into the hands of the general meeting. In such situations, one thing can be advised: refer to the Housing Code and the relevant Law. If any clauses of the Charter contradict these documents, they will be declared invalid.
One more example of a successful outcome of the case in favor of the plaintiff, who was one of the members of the HOA, can be cited: the decision of the Frunzensky Court of the city of Vladimir, issued in 2010. One of the members of the Pesochnaya HOA applied to the court with a demand to invalidate the decision of the general meeting on the choice of a way to manage the house, as well as the re-election of the board of the partnership. The decisive argument in favor of the plaintiff was the lack of a quorum - the defendant did not know the exact number of owners who took part in the meeting. In addition, all homeowners were not notified of the meeting in the form required by law. And since the decisions taken at the meeting were illegal, it means that the change of the chairman of the HOA was not legal either.
The right to appeal to the court the decisions of the general meeting
When considering lawsuits appealing against decisions of HOA meetings, the court first determines whether the plaintiff has the right and reason to disagree with the decision made? So, in 2010, the Basmanny District Court refused to satisfy the claim against the HOA "Messengers 3/5". The plaintiff insisted that the approved estimates of income and expenses were illegal, as well as the agreed expenses for the services of protection and repair of common property. However, the court did not find any violations in the meeting procedure, nor violations of the competence of members of the HOA. The charter of the partnership, which the defendant was guided by, fully complied with the letter of the law. In order to have the right to apply for judicial protection and demand that the decisions of the general meeting of the HOA be recognized as illegal, you must:
- Have the title of the owner at the time of the general meeting
- To prove the violation of one's own legal rights and interests by the decision of the meeting
- File a claim within 6 months of the relevant decision being made
If one of these conditions is not met, your claim will be denied, even if your claim is generally fair. The district court of Vladimir considered the claim of several owners against the HOA "Patriarchal Gardens". A whole bunch of claims were brought against the partnership: both the conclusion of economically unprofitable contracts, and violation of the law. But all claims remained unanswered for the sole reason that at the time of the adoption of the disputed decisions, the plaintiffs were not the owners of the premises in the apartment building, which is part of the partnership.
In another case, the claimant missed the deadline for going to court without good reason: Vladimirsky regional court considered a claim to invalidate the decision of the meeting of members of the Verkhnyaya Dubrova 33 partnership - to the plaintiff 3 years before filing an appeal with government bodies it was known about the outcome of this meeting, but for some reason he decided to address the representatives of the law with a great delay. Therefore, the claim was dismissed.
An analysis of judicial practice made it possible to formulate another important requirement, the observance of which is necessary for the court to accept the case for consideration: the vote of the owner at the meeting could not influence the decision, otherwise state authorities may refuse to interfere in the affairs of the partnership.
Creation and liquidation of HOA
In terms of the number of appeals to official bodies, disputes related to decisions taken meetings of the partnership, are the undisputed leaders. Lawyers often have to deal with them. Another category of lawsuits is the recognition of the creation or liquidation of an HOA as illegal. Considering such cases, the courts literally interpret the laws and charters of partnerships, focus on the actual circumstances of the case. Not only the will of the home owners is taken into account, but also the consequences of the decision made in the courtroom.
For example, the Tver HOA "Zavolzhye" was created by the decision of the majority of property owners in an apartment building, which is confirmed by the relevant protocol. It is impossible to recognize the creation of a partnership as illegal without recognizing the minutes of the first general meeting as illegal. The tenants themselves chose the way to manage the house, so the lawsuit filed by housing inspection, remained unsatisfied. To avoid difficulties in the future, we strongly recommend that you correctly draw up all documents related to the establishment of a partnership.
Disputes over common property
As always, when it comes to property matters, many lawsuits involve the disposal of common property, its operation and maintenance. These disputes may relate to the use of the land on which the apartment building is located, the presence of commercial or unauthorized structures. For example, homeowners associations can sue tenants of non-residential premises if they build unauthorized buildings: equip entrances, build arches, pillars, steps. In order to avoid disagreements in the courtroom, any changes in the architecture of the premises rented from the HOA must undergo a formal approval procedure. This does not mean that without appropriate approval, the court will certainly issue a verdict in favor of the HOA - such claims are often partially satisfied. The defendant may be required to remove some structures, but it is much more difficult to obtain financial compensation in favor of the partnership.
Limited liability companies, drawing up a long-term lease agreement for non-residential premises from the HOA, take on a share of the costs of repairing common property and paying utility bills. The share of LLC in expenses in such cases is proportional to the share of the leased premises. In order to hold the company accountable in case of non-payment of the agreed expenses, the HOA must prove the fact that repairs have been carried out and provide a calculation of the cost of utilities. The only way for an LLC to challenge such a claim is to prove in turn that a mistake was made in the calculations of the partnership, but this is not easy if the documents are drawn up in accordance with all the rules.
litigation is fairly common. This is primarily due to the imperfection of the current legislation, which regulates the activities of management companies and homeowners associations, as well as interaction with utility providers. As practice shows, cases of litigation arise immediately after the registration of the HOA.
homeowners association is a representative of the owners of premises in an apartment building. His actions are aimed at satisfying the interests of the owners. In accordance with paragraph 1 of Article 49 of the Civil Code of the Russian Federation, a homeowners' association, like other non-profit organizations, has not general, but statutory or target legal capacity. Independent rights and obligations HOA arise directly in the course of their activities. Violation of these rights or failure to perform or poor-quality performance of duties may serve as a basis for applying to an arbitration court for the purpose of dispute resolution .
Perhaps the most common problem associated with the activities of homeowners associations and management companies is the allocation of the composition of the common property of all owners of premises in an apartment building and its subsequent assignment to each homeowner. Due to the uncertainty of the procedure for establishing a complete list of the common property of an apartment building, disputes often arise with the HOA. The bone of contention tends to be non-residential premises, which, according to an agreement concluded with developers or local authorities, may belong to a specific person.
Another common case of conflict with management companies concerns problems associated with appealing decisions general meeting of HOA members solutions. Often there are certain groups of tenants who are trying to oppose the general will of the majority of the owners of premises in an apartment building. Disagreements arise over the procedure for establishing payment for housing, making a decision to conduct required types improvement and repair of the building and adjacent territories. Often there are conflicts related to the composition of the board itself.
It is important to know that the plaintiffs in litigation with homeowners associations can also be members of the HOA. Thus, each member of the partnership has the right to appeal against the decision of the general meeting within six months, if he was not present at the adoption of this decision or voted against it. In addition, the reason for the claim of a member of the homeowners association may be the decision of the general meeting to increase the payment for utilities, if this decision violates his legitimate interests, or entails significant losses. These claims will be referred to the District Court.
However, the most difficult issues are changing the management method or transferring the management functions of HOAs of individual residential buildings or entire residential complexes from one management company to another. Resolution of disputes in the HOA in these cases, as a rule, they do not bring the required results, and the parties to the conflicts are forced to file a lawsuit in court.
Experienced lawyers of U-Disposition Company provide qualified legal assistance in resolving conflicts with management companies and homeowners associations. The list of services provided includes:
- Detailed consultation and preparation of required documents;
- Representing the interests of the plaintiff in courts of general jurisdiction and arbitration courts;
- Representation of interests in pre-trial settlement conflicts and before third parties;
- Assistance in the preparation and drafting of statements of claim, cassation complaints, appeal documents for submission to courts of various instances;
- Assistance in preparing and holding a general meeting of all owners of the premises of an apartment building;
- Assistance in the preparation of written appeals, agreements and contracts.