An association of property owners TSN (dacha) is being created. The founders are the owners of land plots in the amount of five people. What regulates the number of founders (there are 200 sites in the company)? Could there be three of them? What is the responsibility of founders? If the electrification of society is carried out, who will own the property, the founders or all members of the TSN?
Answer
The maximum number of founders of a partnership of real estate owners is not regulated. There must be at least 3 people.
A TSN member is responsible for paying membership fees under the terms of the TSN charter, the burden of maintaining a land plot, subsidiary liability for TSN obligations in terms of non-payment of an additional fee, liability for violations of the law when using a land plot and other obligations.
Such property will be common property and is the joint property of TSN members.
The number of TSN founders must be at least 3 people (Civil Code of the Russian Federation; Article 16 of the Federal Law of 15.04.1998 No. 66-FZ).
The obligations of a member of the TSN in relation to garden, summer cottages are established by Article 19 of the Federal Law of 15.04.1998 No. 66-FZ.
The procedure for determining the common property of TSN is established by the Civil Code of the Russian Federation, Article 4 of the Federal Law of 15.04.1998 No. 66-FZ.
The rationale for this position is given below in the materials of "Systems Lawyer" and "Systems Glavbuh" .
« Association of property owners
The new version of the Civil Code of the Russian Federation has fixed the concept of this form of a non-profit organization. A partnership of real estate owners is understood as a voluntary association of the owners of the following real estate*:
- premises in a building (including in an apartment building) or in several buildings;
- residential buildings;
- country houses;
- horticultural, horticultural or suburban land plots;
- other real estate.
This association is created by the owners in order to*:
- jointly own, use and, within the limits established by law, dispose of property (things) that, by virtue of the law, is in their common ownership or in common use;
- achieve other goals stipulated by laws.
Such a definition is established in Article 123.12 of the Civil Code of the Russian Federation.
The rules relating to associations of owners of real estate are as follows.
Firstly, provided a list of information that the charter of a partnership of real estate owners should contain *:
- the name, including the words "partnership of property owners";
- location of the partnership;
- the subject and goals of the partnership;
- the composition and competence of the bodies of the partnership;
- the procedure for decision-making by bodies, including on issues, decisions on which are taken unanimously or by a qualified majority of votes;
- other information provided by law.
Such requirements are provided for in Article 123.12 of the Civil Code of the Russian Federation.
Secondly, the law now contains a direct indication that the partnership of real estate owners is not liable for the obligations of its members, and they, in turn, are not liable for the obligations of the partnership * ().
Thirdly, specified in what organizational and legal forms the association of owners of real estate can be reorganized in the process of transformation*. The partnership can now be converted only into a consumer cooperative ().
Fourth, provided for the rules regarding the property of a partnership of real estate owners *:
- the partnership is considered the owner of its property;
- common property in an apartment building, as well as objects of common use in horticultural, horticultural and summer non-profit partnerships belong to the members of the relevant partnership on the basis of common shared ownership. However, the Civil Code of the Russian Federation contains a clause that the law may provide otherwise. The composition of the above property and the procedure for determining shares in the right of common ownership of it shall be established by law.
In addition, the Civil Code of the Russian Federation established that the fate of ownership of real estate should*:
- share in the right of common ownership of common property in an apartment building of the owner of the premises in this house;
- a share in the right of common ownership of objects of common use in a horticultural, gardening or dacha non-profit partnership of the owner of a land plot - a member of such a non-profit partnership.
Such rules are provided for in the Civil Code of the Russian Federation.
Fifth, the law provides for a number of management features in a partnership of property owners*:
- the exclusive competence of the supreme body of the partnership includes, as well as the adoption of decisions on the establishment of the amount of mandatory payments and contributions of members of the partnership;
- the supreme body of the partnership may decide on the early termination of the powers of permanent bodies (chairman and board). Such a possibility arises in cases of gross violation of their duties by these bodies, revealed inability to properly conduct business, or in the presence of other serious grounds.
These rules are established in the Civil Code of the Russian Federation.
The Association of Real Estate Owners, in the abbreviation TSN, is a new form of collective property management, and, as the name implies, any real estate, and not just housing.
This general concept - TSN - did not replace another term - HOA (homeowners association). According to the new rules, the HOA will be one of the organizational and legal forms of TSN.
What regulates the law on TSN
The concept of a partnership of real estate owners was introduced on September 1, 2014, when Federal Law No. 99-FZ of May 5, 2014 on amendments to Chapter 4 of Part One of the Civil Code of the Russian Federation came into force.
Now the charter must contain the words "partnership of property owners" in the part about the name.
Later, Federal Law No. 133-FZ of May 23, 2015 “On Amendments to Part One of the Civil Code of the Russian Federation and the Federal Law “On Political Parties” was issued. In accordance with it, amendments were made to paragraph 1, paragraph 1, Article 54 of the Civil Code.
According to these changes:
Homeowners associations established before May 23, 2015 already as TSN or renamed TSN must amend the charter. In the name of such organizations, it is necessary to indicate that they are an HOA, which, in turn, is a type of TSN. There is no time frame for organizations to make these changes. As soon as at the meeting of members of the HOA a decision is made to amend any part of the charter, then clarifications will be made on the name;
when registering an organization after May 23, 2015, the name should indicate the HOA, in the charter - the HOA, which is created in the legal form of TSN;
thus, the charter will contain the wording of the HOA, but in fact the charter will indicate that the HOA is a type of TSN.
Similarities and differences between HOA and TSN
HOA and TSN are similar in many respects: both in terms of their activities and in organizational aspects. So far, they do not have obvious significant differences, except that the partnership of property owners implies a wider range of possible subjects of management. For clarity, the main points of similarities and differences between these forms of management are presented in the table:
|
|
HOA | TSN |
|---|---|---|
|
Orientation of the organization |
Non-profit organization |
|
|
Form of organization |
Corporate body |
|
|
Governing bodies |
Has a chairman and board |
|
|
Subjects of management |
Only suitable for housing management |
Can be arranged to manage any property |
|
Responsibilities |
Obligation to manage common property and provide public services |
The obligation to manage common property and provide utility services is not directly spelled out in the Housing Code of the Russian Federation |
|
Taxation system |
Allowed to maintain a simplified taxation system |
It is allowed to maintain a simplified or general taxation system |
|
Who can join a partnership |
Only individuals |
Individuals and legal entities; associations of individuals and legal entities |
Prospects for TSN
Summing up, TSN is a relatively young organizational and legal form of real estate management, which covers a wider group of management objects. Now these are not only apartment buildings, but also:
horticultural associations, plots;
horticultural non-profit associations;
premises in a building or even several buildings;
non-residential premises;
country houses, etc.
TSN will become an alternative for those owners who want to be able to manage not only residential areas, but also other real estate objects. Real estate owners' associations are now actively continuing to be created or renamed from HOAs, despite some controversial points.
There is a growing tendency to combine several houses in TSN, in other words, there is a kind of enlargement of the subject of management, and, consequently, the amount of work for the organization involved in management increases.
Gradually, property owners' associations are gaining popularity. As a result, all issues and disputes related to their functioning will be resolved more quickly and in accordance with the law. In the future, such an organizational and legal form as TSN has every chance of becoming the most popular form of management, since it has no special restrictions: the main condition for creating this partnership is the community of property.
The manager of the HOA and the chairman of the HOA are different people. Formally, the manager is an individual who, for some remuneration, is delegated a part of the administrative functionality related to the organization of work directly by the HOA. As a rule, the managing partnership attracts from outside.
Thus, we can conclude that the position of the manager is intended to "unload" the management apparatus of the partnership in the person of its chairman.
The main functions of the manager in the HOA include:
Of course, a number of functions and official powers of the manager of the HOA can be expanded in accordance with the decisions given by the leadership of the partnership.
Quite often, a sufficiently large amount of obligations is imposed on the chairman of the HOA, which he cannot cope with, or he simply does not have enough time for this. Then the leadership of the partnership engages a person who agrees to take the position of manager and share part of the duties with the chairman, taking over his functions related to internal processes.
There are also cases when, among the tenants who are the actual owners of the housing, they cannot find a suitable candidate for the position of chairman, and the meeting cannot decide on a choice. Then a third-party person is also hired for the position of manager of the HOA.
Important! The key difference between the manager of the HOA and the chairman of the HOA is that the position of manager can be taken by a person who is not the owner of housing on the territory of the partnership.
A hired manager does not even have to be a tenant of a particular house to take this position in partnership. The Russian Housing Code emphasizes that only the owner of housing can become the chairman of an HOA.
Thus, the difference between the positions of the manager and the chairman lies not only in the scope of obligations, but also in their legal relationship to common property, the interests of which are protected by the HOA. If for the chairman direct belonging to the MKD is mandatory, then for the manager it is not.
How and where is the legal status regulated?
Besides, legal status must be fixed in the job description of the manager.
Since the manager is a natural person, at the time of the conclusion of the transaction, the party of the board of the partnership does not transfer to the manager its obligations regarding the implementation of public services, but remains their executor.
Reference! The legal field of the position of manager is in the plane of managerial processes of an administrative nature, including control over the observance of order in relation to public real estate, in particular, its maintenance in proper condition, repair and maintenance.
There are cases when the Charter of the HOA contains a number of fixed duties, among which certain aspects can be specified. Then the scope of powers, the transfer of which is carried out by the manager of the HOA, is determined by the board of the partnership itself outside the legal field.
The incoming manager of the HOA can be recommended to carefully read not only the contracts and instructions, but also the Charter of the HOA, in which he plans to conduct his labor activity in the future.
Partnership interaction models
There are two models of interaction between the manager and the partnership:
Registration of powers through the signing of an agreement
As mentioned earlier, the HOA draws up one of two types of agreements with the person taking over as manager - an employment contract or an agreement on a civil law basis.
Power of attorney
The HOA has the right to designate and transfer to the manager his official functions in an official power of attorney. Usually this document is issued in situations where the manager needs to represent the interests of the partnership in a third-party organization, for example, in various authorities.
The power of attorney indicates all the powers of the manager, which are usually duplicated with those given in his job description or set out in a civil law agreement.
General provisions regarding its design are set out in Chapter 10 of the Civil Code of the Russian Federation.
Concluding the clarification of the subtleties regarding such positions as the chairman and manager of the HOA, it can be noted that there is a significant difference between them, especially in a legal context.
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In 2014, the Civil Code was amended. Along with horticultural, horticultural and dacha cooperatives (SNT, DNT, ONT), a new legal form of ownership has appeared - a partnership of property owners (TSN). It will be discussed later in this article.
Partnership TSN: what is it?
The new form of ownership differs from the previous one, the same HOA. Firstly, the owners can independently decide how to manage the premises. If the quality of the services received does not meet the requirements, then TSN may terminate the contract and invite other organizations to perform work.
TSN indirectly forces residents to take care of common areas. In the event of equipment failure, everyone will have to pay for it. Residents will know how much it costs to paint a painted wall and replace a broken window. This not only increases the market value of apartments, but in the long run may reduce monthly payments. Without exception, all tenants of the house participate in the cost of repairs. That's what kind of partnership - TSN.
Legislative regulation
Let us consider in more detail what kind of partnership TSN is from the point of view of the Civil Code of the Russian Federation. Changes relating to non-profit corporate organizations were introduced by Federal Law No. 99.
TSN is a partnership of owners of real estate (premises in houses or in several residential buildings, summer cottages), organized for collective ownership and use. The partnership must have a charter containing the name of the document, the location of the organization, its composition, the subject and purpose of the activity.
The Partnership is not liable for the obligations of its members. He owns only the property that is specified in the charter, on the basis of the right of shared ownership. The supreme competent body of the partnership determines the amount of mandatory membership fees. The organization is managed by the chairman and the board. Their functions may be prematurely terminated in the event of a gross violation of duties.
signs
- association of owners on a voluntary basis;
- creation of an organization for the possession, use and disposal of property on a voluntary basis and within the framework of the law;
- achieving other goals.
HOA
In order to manage the house, a partnership (community) of homeowners is created. It is created to manage premises only in apartment buildings (MKD) for the purpose of owning, using, disposing of property, creating, maintaining, storing, increasing property. The management of the partnership is carried out by the highest meeting of members, the head and the chairman.
HOA and TSN (partnership of property owners): pros and cons
HOA is a type of TSN. In the first case, we are talking only about the association of owners of apartment buildings, and in the second - about the association of owners of various forms of real estate (houses, buildings, gardening, gardening, land plots). The two terms are not interchangeable. The regulation of the activities of the HOA is carried out according to the norms of housing legislation, which are special in comparison with the general provisions of the Civil Code. That is, when resolving controversial issues, one should first of all rely on the norms of the LC RF.
What is this partnership "TSN"? In this case, we are talking about the association of owners of any real estate, both commercial and non-commercial. It may not only be at home. But also offices, garages. That is, a non-profit organization fulfills the needs of owners who, due to circumstances, are together.
HOA has outlived its usefulness. With the help of such a partnership, for example, you cannot manage an office building located in the city center. Having organized TSN, it is possible to agree with government agencies on key issues. Moreover, the Civil Code of the Russian Federation contains all the provisions regarding the creation, collection and dissolution of a partnership.
The HOA does not justify itself also because the property includes not only a residential building, but also a land plot, a basement, an attic. Members of the partnership previously could not manage these objects. Through the courts, many questions were resolved regarding who owns the basement and who has the right to rent the attic space. Now all of them will be under the management of the partnership.
One more example. How to organize parking if the yard belongs to several houses? The effectiveness of the partnership will be justified if several objects are owned.
The law also spells out some nuances that should be taken into account when creating or reorganizing legal entities. If we are talking about HOA, then when creating the name of the organization, not only its name, but also the form of ownership should be clearly reflected, and if it is about TSN, then it is not required to indicate the form of ownership in the name. In general, many people like the advantages of TSN (real estate owners association).
Cost Savings
TSN (association of property owners) by law has the right to independently determine the order of work. Any member of the partnership can control expenses and income. That is, the partnership can rent out the premises. The partnership can create conditions for the economical use of energy resources by installing units and energy-saving technologies. In some cities, members of the partnership are provided with:
- subsidies to offset the cost of chair training;
- reimbursement of expenses for registration of TSN;
- subsidies for compensation of expenses aimed at repairing apartment buildings, facades, installation of equipment, sites, etc.
Peculiarities
A legal entity can also become a member of TSN. What kind of partnership should this be? This could be an office space management organization. Individuals can join several partnerships at once. For example, at the place of residence, work and location of the cottage. Experts believe that the owners of garden plots will be most satisfied with the innovations. This is the most vulnerable part of the population. Previously, for roads and communications, almost rent was charged. Now the population has the opportunity to independently decide how to dispose of joint property.
Registration of TSN
The owners of the premises can create one partnership. The relevant decision is made by the owners of the premises at the meeting. The decision is considered positive if more than 50% of the participants in the partnership voted for it. The protocol on registration of TSN must be signed by all participants in the partnership. The articles of association must also be approved at the shareholders' meeting. It describes all aspects of the activity: rights, obligations, starting and stopping work, etc.
The Board of the TSN must be approved prior to the registration of the partnership. It subsequently appoints a chairman. An audit group is also being created to review the work of the board. When registering with a government agency, you must submit:
- application for registration (No. 11001);
- notarized minutes of the meeting;
- two copies of the charter;
- receipt for payment of state duty.
After registration, you need to open a bank account. It will receive membership dues and utility bills. It remains only to conclude agreements with service organizations. How should TSN (association of property owners) report? Since the partnership is registered as a legal entity, it will also need to submit reports as a legal entity.
Nuances of registration
The method of managing MKD is chosen by the owners and can be changed at any time. TSN decisions apply to all premises in the MKD. If the property was managed by a management organization, then the owners should first consider refusing the services of this company. The charter is the only document of TSN.
The initiator of the meeting of MKD owners must inform all residents of the date of the meeting at least 10 days in advance by handing notices signed or sending them by registered mail.
Any decisions of the partnership are considered adopted if a quorum, that is, more than 50% of the owners, voted for them. If there is no quorum, then the initiator may convene a second meeting and make a decision in absentia. Decisions made in this way must be communicated to all members of society. For this purpose, the initiator or his representatives go around all the apartments and distribute written decisions to the tenants.
Reimbursement of expenses
After TSN registration, part of the costs is subject to subsidization, namely the costs of:
- payment of state duty;
- obtaining a copy of the charter;
- certification of signatures of the chairman, accountant of TSN;
- opening a bank account;
- printing production.
Conclusion
What is this partnership - TSN? Experts believe that the new form of ownership will solve a number of important issues: how to organize life and control the work of service providers. The creation of TSN allows improving the quality of housing and communal services and will encourage residents to take better care of their property. HOA will not disappear. All interested partnerships can be reorganized. To do this, you need to prepare a package of documents and submit it to government agencies. It will take a maximum of one and a half months to re-register.
In accordance with the Civil Code of the Russian Federation association of property owners a voluntary association of owners of immovable property, created by them for joint possession, use and, within the limits established by law, of disposing of property (things), by virtue of the law being in their common ownership or in common use, as well as to achieve other goals provided for by laws, is recognized.
In the form of a partnership of real estate owners (TSN), all new associations of owners are being created:
premises in a building (including in an apartment building);
premises in several buildings;
residential buildings;
country houses;
horticultural land;
vegetable plots;
summer cottages;
Thus, we can say that the partnership of real estate owners is a new organizational and legal form of non-profit organizations that unites owners of any type of real estate: apartments, offices, garages, summer cottages, gardens, kitchen gardens, etc.
The main task of the partnership is to perform the function of sharing immovable objects.
Associations of real estate owners are non-profit organizations, they have the right to engage only in the activities that are provided for in the charter. The Civil Code of the Russian Federation establishes the possibility of carrying out entrepreneurial activities by such organizations, but this is due to two points:
entrepreneurial activity must serve the purposes for which the partnership was created;
upon receipt of profit, the organization is not entitled to distribute the profit received among the participants of the organization.
When carrying out entrepreneurial or other activities, the partnership is independently responsible for its obligations with all the property belonging to it, the members of the partnership are not liable for its debts.
Rights of a partnership of property owners
The Association of Real Estate Owners has the right to:
conclude an agreement on the management of real estate and common property, as well as agreements on the maintenance and repair of common property, on the provision of public services and other agreements in the interests of members of the partnership;
determine the estimate of income and expenses for the year, including the necessary expenses for the maintenance and repair of common property, the cost of repair and other work, special contributions and deductions to the reserve fund, as well as expenses for other purposes established by the charter of the partnership;
establish, on the basis of the accepted estimate of income and expenses of the partnership for a year, the amount of payments and contributions for each owner in accordance with his share in the right of common ownership of common property;
perform work for property owners and provide services to them;
use the loans provided by banks in the manner and on the terms provided for by law;
transfer material and monetary resources under the contract to persons performing work for the partnership and providing services to it;
sell and transfer for temporary use, exchange property belonging to the partnership.
In cases where this does not violate the rights and legitimate interests of property owners, the partnership has the right to:
provide for use or limited use of a part of the common property;
in accordance with the established procedure, build on, rebuild part of the common property;
to receive for use or receive or acquire land plots and other property into common shared ownership of real estate owners;
to carry out on behalf and at the expense of the owners of real estate development on land plots owned by the owners;
conclude transactions and perform other actions that meet the goals and objectives of the partnership.
In the event that the owners of immovable property fail to fulfill their obligations to participate in common expenses, the partnership has the right to demand in court the compulsory reimbursement of mandatory payments and contributions.
The partnership may demand in court full compensation for the losses caused to it as a result of the property owners' failure to fulfill their obligations to pay mandatory payments and contributions and pay other general expenses.
Obligations of a homeowners association
The partnership is obliged:
ensure compliance with the requirements, provisions of regulatory legal acts, as well as the charter of the partnership;
conclude agreements on the maintenance and repair of common property with property owners who are not members of the partnership;
fulfill obligations under the contract;
ensure the proper sanitary and technical condition of the common property;
ensure that all owners of real estate fulfill their obligations to maintain and repair common property in accordance with their shares in the right of common ownership of this property;
ensure observance of the rights and legitimate interests of real estate owners when establishing the conditions and procedures for the possession, use and disposal of common property;
take measures necessary to prevent or terminate the actions of third parties that impede the exercise of the rights of possession, use and, within the limits established by law, the disposal of owners of real estate with common property or hinder this;
represent the legitimate interests of property owners, including in relations with third parties.
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