The creation of associations of owners of non-residential premises almost completely coincides with such a process with the participation of owners of residential premises. But creating an HOA for an office building is impossible: at least two apartment owners must be participants in the partnership. Therefore, the question often asked to Rigby specialists is who can initiate the creation of a partnership, and the answer is simple: it can be the owners of residential or non-residential areas. But current legislation excludes the possibility of creating HOAs within shopping centers. Owners of shops or offices located in residential complexes have the right to initiate the emergence of an HOA and express their will through in-person or absentee voting.
What does the creation of a partnership by owners of non-residential premises look like?
It was noted a little higher: according to legal norms, it is impossible to create a partnership of owners of non-residential premises. But owners of commercial space have the opportunity to participate in meetings of owners, making choices on an equal basis with others. When creating an HOA, non-residential premises are full-fledged “voices” when creating an association of homeowners. This process will require:
- Organize a meeting, inviting all owners of commercial and residential premises;
- If more than 50% of positive votes are received for the HOA, the composition of the board of the association is approved;
- Develop a company charter;
- Sign a protocol listing all decisions made by the owners.
Now we know: the owner of non-residential premises can create a HOA only through participation in the initiative group in preparation for the general meeting. The idea of merging into a partnership may belong entirely to the owners of commercial premises. In this sense, there are no restrictions or obstacles for them. Another important question: Is it possible to register an owners’ association without involving the owners of commercial premises? This is possible, although at the general meeting the initiative group will have to notify them of planned changes in the management of the building.
How can the owner of a non-residential premises create an HOA?
Information on how to create an HOA for owners of commercial premises is recorded by the Housing Code of the Russian Federation, Article 147. Entering information about the organization into the Unified State Register of Legal Entities assumes that the chairman of the partnership, elected by the general meeting, will need:
- Receipt for payment of state duty (4000 rubles);
- Completed application for state registration of HOA;
- Notarized copies constituent documents;
- Banking details of the partnership.
The listed papers are submitted to the Federal Tax Service. At the same time, the house should be transferred under the management of the newly created HOA, notifying the municipal services service at the location of the property. The fact that the creation of an HOA for non-residential premises is impossible does not affect the chances of the owner of a commercial premises becoming a member of the board or heading the partnership. Current acts and codes do not restrict the owners of offices or shops in residential complexes compared to residents.
What else should owners know about creating an HOA?
Property owners who ignored the meeting, the agenda of which was the decision to organize a partnership, will be forced to submit to the decision of the majority. Those residents apartment building Those who cannot appear at the appointed time have the opportunity to draw up a simple written power of attorney and transfer their votes to neighbors or relatives. Owners of commercial space can also take advantage of this opportunity by transferring their right to express their will by proxy to their authorized person.
Questions often arise in the relationship between the owners of non-residential premises and homeowners' associations. Disagreements between homeowners' associations and owners of non-residential premises arise mainly due to the fact that the law does not distinguish residential premises from non-residential premises, and therefore does not provide for differences in regulating their legal status.
According to the legislative framework in force in the territory Russian Federation, non-residential premises located in apartment buildings have the status of an autonomous object, confirmed by many regulations, in addition, to this day they have retained the status of independent real estate objects. In addition, the law “On Homeowners' Associations” and the Housing Code clearly established the composition of the collective property of an apartment building and the rights of collective shared ownership of this property of the premises owners. Since the main part of non-residential premises is located either in attics, or in the basement, or on ground floor, then it is quite understandable why the problem of allocating non-residential premises as an autonomous object causes a lot of controversy. It often happens that homeowners' associations are faced with the fact that the premises in which all kinds of communications or equipment are located are the property of a private person, which makes access to them impossible. The inability to access the premises where the equipment responsible for the life support of the house is located leads to a threat to the safety of the residents of the house. As for the accumulated experience in resolving such issues, it is quite contradictory, since the court does not have sufficient legislative norms.
Let us note that the law in no way distinguishes between non-residential and residential premises in legal terms, thereby endowing their owners with the same responsibilities and rights. The built-in or attached non-residential premises does not matter, it is important that it is part of a residential building, which is confirmed in the technical passport of the latter, and therefore, owners of non-residential and residential premises must equally pay a fee for property maintenance.
As for the distribution of expenses other than that prescribed by law, for example, the adoption of a decision at a meeting, then legislative framework states that the homeowners association must determine the amount of payments and contributions for each homeowners association member in the building depending on his share of the collective ownership of the joint property. The law has no other grounds for dividing participation in the maintenance of collective property.
In practice, such an approach is not excluded when, at a general meeting of members of a homeowners’ association, different sizes contributions, for residents there is one payment for the maintenance of property, and for companies and owners of non-residential premises the payment is different, higher than for residents, despite the fact that they are also members of the homeowners association. It is quite understandable that this state of affairs outrages the owners of non-residential premises, so they pay bills until general meeting members of the homeowners association will not consider them invalid. The court will make a decision in favor of the owners of non-residential premises, and subsequently they can go to court to recover from the homeowners’ association amounts that exceed their share.
Based on the above, it does not matter whether the owner of a non-residential premises uses the roof of the elevator or the entrance of the house; in any case, he is obliged to pay fees for their maintenance. The decision of the Supreme Court states that the responsibility for maintaining the collective property of the house lies equally with each owner of the residential premises, and it does not matter on what floor the premises are located.
In order to somehow regulate relations between homeowners' associations and owners of non-residential premises who are not members of these associations, the Housing Code recommends concluding agreements between owners of non-residential premises and homeowners' associations. This agreement may contain conditions that differ from the terms of the agreement between the homeowners association and the owner of the residential premises who is not a member of the association. When drawing up an agreement with the owner of non-residential premises, you should take into account the following nuances, what rights the owner of a non-residential premises has when using collective property, the rules for admitting members of the homeowners’ association to the premises that belong to the owner, clearly outline the responsibility for the arrangement of the area located near the house.
What is this? The premises of an HOA should include objects that are on its balance sheet, but are not in the personal possession of members of the organization. The premises belong to the partnership if it:
There is a clear distinction between the property of homeowners and the property of the housing association. Residents are not responsible with their property for the unlawful use of common property, and the premises of the HOA can be disposed of through a general meeting.
What does the organization own in an apartment building?
The board can rent out empty premises for retail and other space or for advertising billboards. The construction of new premises also implies their subsequent rental to generate income.
REFERENCE! Objects can be rented out by decision of the governing bodies of the housing association only if the concluded rental agreement does not violate the rights and interests of the apartment owners living in the building (Clause 4 of Article 36 of the Housing Code of the Russian Federation).
Article 36, paragraph 4 of the Housing Code of the Russian Federation. Ownership rights to common property of premises owners in an apartment building
The land plot on which it is located this house, with elements of landscaping and improvement, other objects intended for the maintenance, operation and improvement of this house and located on the specified land plot. Borders and size land plot, on which the apartment building is located, are determined in accordance with the requirements of land legislation and legislation on urban planning.
You can earn income from the operation of common real estate by organizing utility rooms and workshops for full-time employees involved in repairing the property of apartment owners on a commercial basis.
How to conclude an agreement for the rental of common areas?
To receive additional income from renting out common premises, you must:
- determine a list of HOA premises that can be rented out;
- set future rents;
- present a lease project at the general meeting;
- after the project is approved by vote, search for potential tenants;
- conduct negotiations with tenants and conclude agreements;
- register the lease agreement with the Rosreestr authorities.
First of all, it is necessary to check the premises that are on the balance sheet of the housing association, their condition and documentation. It is important to make sure you have:
In the absence of the last document, it will be impossible to rent out any space. If the empty property is located on the territory of the HOA, but does not belong to it, then it is necessary to register rights to it by applying with the available documents for these areas to the Rosreestr authorities.
The documents must be accompanied by a certificate from the cadastral chamber about the boundaries of land plots adjacent to the houses of the housing association.
IMPORTANT! If, after the creation of a partnership, part of the premises located on its territory has signs of common property, but continues to be used by third parties, the board has the right to force such persons to vacate the premises or set a rent.
After preparing the premises, it is necessary to conduct marketing research that will help determine the average market rental price for objects of this type and the seasonal dynamics of this cost.
To draw up a lease agreement, it is better to take standard contract and change it to suit specific circumstances. It is mandatory to indicate in the contract:
The project should be presented at the meeting economic activity from leasing premises, listing expected income and areas for their use (for example, to pay off debts to resource suppliers or to improve the territory).
The general meeting can either approve the amount of rent and conclude an agreement with a specific tenant or advertiser, or entrust this activity to the board, an engaged manager or a contractor (in the case of large housing associations with a large number premises for rent).
REFERENCE! In most housing associations, at a general meeting, upper and lower limits for the amount of rent are adopted, within which the board sets a price for a specific tenant based on the results of negotiations.
This measure is necessary to protect owners of common property from reckless actions of the board, without convening a meeting to sign each agreement.
If the contract is concluded for a period of one year or more, it must be registered with the Rosreestr authorities. To register, a member of the board who has entered into an agreement should contact Rosreestr with the following documents:
The agreement is registered within five working days. In order not to register a rental agreement, it must be concluded for a period of 11 months or less.
For the legality of the income received, the chairman of the housing association or his accountant must annually, before the beginning of April, submit a report on the rental income received to the tax service and pay income taxes.
How is the maintenance of collective facilities carried out?
The performance of maintenance work on common property is organized by the board of the partnership and can be carried out:
- by members of the HOA;
- full-time employees;
- organizations involved.
Participants in a housing association, if they have the appropriate qualifications, can carry out repair work in buildings on a shared basis. If the housing structure is large and includes several houses, then to maintain the common property there is a staff of permanent employees (electricians, plumbers, etc.) who perform routine work as needed.
If the work is temporary or seasonal (for example, landscaping or major renovation) then an agreement is concluded with a contracting company to carry them out.
REFERENCE! Determining the amount of contributions of residents-members of the HOA and the procedure for collecting such contributions is within the competence of the meeting of participants of the housing association and is decided by voting (Part 4, Clause 2, Article 145 of the Housing Code of the Russian Federation).
After determining the amount of mandatory contributions, accounting staff send receipts by mail to apartment owners for payment. Fee for current repairs is part of the payment for housing (clause 1 of article 154 of the Housing Code of the Russian Federation).
Payment for the maintenance and repair of common real estate is the responsibility of the owner of the residential premises, in accordance with Part 5, Clause 2, Art. 153 Housing Code of the Russian Federation.
The obligation of the apartment owner to pay contributions for major repairs arises from the eighth month of ownership of the property, but the authorities of the federal subject have the right to establish more early date payment.
Conclusion
So, premises owned by a housing association include all real estate objects that are not in the personal possession of citizens and located within the boundaries of the HOA territory. Such premises can be used as utility rooms for HOA staff or rented out to generate a profit that can be used to maintain common property and utility costs, thereby reducing the mandatory contributions of members of the housing association.
Since January 1, 2017, the nature of the relationship between the organization managing the apartment complex (managerial association, homeowners association, residential complex, housing cooperative) and the owner of non-residential premises has changed.
Previously, such an owner had two options to get public utilities: V general procedure through a management company, homeowners' association, residential complex, housing cooperative or under an agreement with a resource supply organization (RSO). Now the owner is obliged to enter into resource supply agreements directly with the RSO. The organization managing the apartment building acts as a connecting link in these relations. She no longer provides utilities to non-residential premises, but at the same time she has new responsibilities.
Now MA, HOA, residential complex, housing cooperative must:
- notify the owner of non-residential premises of the need to conclude agreements with the RSO and the MSW reoperator;
- transfer information about the owners of non-residential premises in the apartment building to the RSO and the TKO reoperator.
Such changes to the legislation were made by Decree of the Government of the Russian Federation dated December 26, 2016 No. 1498 “On issues of providing utilities and maintaining common property in an apartment building.” This resolution included the above responsibilities in the Rules for the provision of utility services to owners and users of premises in apartment buildings and residential buildings, approved by Decree of the Government of the Russian Federation of May 6, 2011 No. 354 (hereinafter referred to as Rules No. 354).
Watch a fragment of the webinar for our subscribers on the topic “Transition to direct contracts between RSO and the consumer”
Who should commission and seal the IPU, which is installed in the non-residential premises of the apartment building?
Work on putting the IPU into operation should be carried out by RSO.
Supply cold water, hot water, thermal energy, electrical energy and gas to non-residential premises in the apartment building, as well as the removal waste water occurs on the basis of agreements with RSO. Such agreements must be concluded in accordance with the rules of legislation on water supply, sanitation, electricity supply, gas supply, and heat supply. This is provided for in paragraph 3 of paragraph 7 of Rules No. 354.
Decree of the Government of the Russian Federation dated July 29, 2013 No. 643 approved a standard hot water supply contract. Clause 13 of the agreement provides for the obligation of RSO to authorize hot water metering devices (metering units) for operation. Clause 19 establishes the obligation to seal metering devices.
- Complaints about the management company: where can residents turn?
What kind of agreement should a management company conclude with the owner of non-residential premises?
Type of agreement management company with the owner of non-residential premises depends on the method of managing the apartment building. If the house is managed by the MA, the same rules apply; if the HOA, residential complex, housing cooperative are different.
Watch a fragment of the webinar for our subscribers on the topic"Common mistakes in communicating with residents: practice, tips and examples"
The house is managed by the UO
The management company enters into a management agreement for the apartment building with each owner of the premises. The terms of the agreement are approved by the general meeting of owners of premises in the house. These conditions are the same for all owners (Part 1 of Article 162 of the Housing Code of the Russian Federation).
The law does not provide for a special agreement for owners of non-residential premises.
At the same time, the management agreement for an apartment building must contain provisions that specifically apply to the owners of non-residential premises in the apartment building. There are two such special provisions:
- the owner’s obligation to conclude in writing resource supply agreements with resource supply organizations and an agreement for the provision of services for the management of MSW with the regional operator;
- consequences in case the owner does not conclude contracts.
This requirement is provided for in paragraph 14 of subparagraph “p” of paragraph 31 and paragraph 9 of subparagraph “k” of paragraph 148(22) of Rules No. 354.
If your apartment management agreement does not contain these provisions, it is worth including them in the text. This will save you from unnecessary disputes and misunderstandings with the owners. We teach how to avoid problems with drawing up a contract.
The house is managed by a homeowners association, residential complex or housing cooperative
The answer to the question of whether to enter into an agreement with the owner of non-residential premises depends on whether such owner is a member of a housing association or not.
If the owner is not one of the members of the HOA, housing complex, housing cooperative, enter into an agreement with the owner for the provision of services for the maintenance and current repairs of common property in the apartment building (Part 6 of Article 155 of the Housing Code of the Russian Federation).
If the owner is a member of a housing association, then no agreement is necessary. Members of homeowners' associations, housing complexes, housing cooperatives make mandatory payments for the maintenance and current repairs of common property in the apartment building in the manner established by the governing bodies of the partnership or cooperative (part 5 of article 155 of the Housing Code of the Russian Federation).
- Direct contracts with resource supply organizations and direct payments for utilities
How to notify the owner of non-residential premises about the need to enter into contracts with a resource supply organization
You are obliged to notify the owners of non-residential premises in apartment buildings about the need to conclude a number of new agreements. Do this as early as possible. Although the law does not provide for a notice period, there is no need to hesitate. The sooner you notify the owners, the lower the risk of negative consequences.
- Management agreement for an apartment building: essential conditions, procedure for conclusion and termination
Attention: Failure to notify the property owner may lead to misunderstandings and disputes.
If the owner does not enter into direct contracts with resource supply organizations, then they will determine the volume of utility resources by calculation methods. As a result, the owner will pay more than he planned. It is possible that he will blame you for such an overpayment. In particular, the owner may refer to the fact that the organization managing the apartment building has violated the notification obligation. This means that this organization is obliged to compensate losses in the amount of the overpayment.
Practice will show whether the courts will side with the owners. At the same time, the very fact of a dispute and misunderstanding with the owner can be regarded as a negative consequence.
What documents and information do you need to obtain from the owner of non-residential premises?
The owner of non-residential premises is required to provide you with a number of documents and information. They are necessary to manage the MKD, so it is in your best interest to receive them on time.
The documents that need to be requested from the owner are copies of resource supply agreements with RSO. You have the right to demand a copy of the contract from the moment of its conclusion (clause 18 of Rules No. 354). But, most likely, you do not know when exactly the owner entered into an agreement with RSO and whether he entered into one at all. Therefore, it is worth sending the owner a request with the wording: “Please provide copies of all contracts with resource supply organizations. If the agreements have not yet been concluded, please provide copies of them within 5 (five) days from the date of conclusion.”
In addition, receive two groups of information from the owner.
- Volumes of utility resources consumed during the billing period under resource supply contracts. Owners of non-residential premises are required to provide this data in the same manner and within the time limits established for the submission of IPU readings by consumers of utility services (clause 18 of Rules No. 354).
- Volumes of MSW management services provided during the billing period under an agreement with the MSW recycler. To obtain this data, please send a request to the owner. He must provide information within three working days (paragraph 4, paragraph 148(1) of Regulation No. 354).
Situation: what to do if the owner of non-residential premises in an apartment building does not transfer data on the volume of consumed utility resources to the management authority, homeowners' association, residential complex, housing cooperative
You have the right to send written request about providing information:
- the owner of non-residential premises (clause 18 of Rules No. 354);
- the corresponding RSO (subclause “e(1)” clause 18 of the Rules, mandatory when concluding contracts with resource supply organizations, approved by Decree of the Government of the Russian Federation of February 14, 2012 No. 124, hereinafter referred to as Rules No. 124).
RSO should not take into account the volume of supply of utility resources to owners of non-residential premises in apartment buildings when determining the volume of utility resources for settlements with the utility service provider. This is established by paragraph 21 of Regulation No. 124.
- Can a management organization provide utility services through intermediary agreements?
How to transfer information about the owners of non-residential premises to the RSO and the MSW reoperator
You are required to provide information about the owners of non-residential premises to resource supply organizations that supply utility resources to apartment buildings, and to the regional operator for the management of solid waste. This is provided for in paragraph 4 of paragraph 6 and paragraph 5 of paragraph 148(1) of Regulation No. 354.
To fulfill this obligation, compose a message indicating:
- addresses of apartment buildings where non-residential premises are located;
- list of premises;
- Full name or name of the owners of the premises.
Advice: if you have additional information about the owners, also indicate it in the message. For example, phone numbers or other contacts of owners. This will save you from unnecessary questions from the RSO and the MSW registrar.
Send the message by mail, deliver it to the addressee’s office or pass it on to any other in a convenient way. The main thing is that the method confirms the fact that the addressee received the information.
Deliver this message to each recipient once. But if information about the owners of non-residential premises changes, the management company will need to provide updated information.
