Why do you need a management agreement for an apartment building with a management company in 2020?
Most residential buildings in Russia are maintained by management companies. The management company provides services for the maintenance and repair of common property in an apartment building, manages this property, including funds, and collects fees for utilities (it is a provider of communal services). The basis for the activities of the management company is the management agreement for apartment buildings, which is concluded (or is considered concluded) with the owners of apartments, rooms and non-residential premises in the house. The agreement contains an agreed list of services and works provided, determines their cost and is also valid for those owners who did not sign it (clauses 3, 4 of Article 162 of the Housing Code of the Russian Federation).
Where can I view the management agreement and what are its essential terms?
Starting from 2020, information about house management must be published on the website of the State Information System for Housing and Public Utilities (Resolution of the Government of the Russian Federation of March 27, 2018 N 331). The system contains an electronic copy of the contract concluded in the usual manner or its electronic original, which can be signed using the website. In addition, the following must be published:
- decision (minutes) of the general meeting of owners, which approved the terms of the agreement;
- documents confirming the change, termination or termination of the management agreement for an apartment building;
- decisions (protocols) on the basis of which the decision was made to terminate or terminate such an agreement (clauses 2.2, 2.3 of the Order of the Ministry of Telecom and Mass Communications of Russia N 368, the Ministry of Construction of Russia N 691/pr dated 09.29.2015 “On approval of the composition of information about MKD placed in GIS Housing and communal services").
The contract is valid for the specified period and is considered extended for the same period and on the same conditions, if neither party has declared its termination (Part 6 of Article 162 of the RF Housing Code). The minimum duration of the management agreement for an apartment building is not established and can be any. The agreement itself specifies the essential terms and conditions that may be additionally included in it by decision of the meeting of owners. The following information must be specified in the contract:
- on the composition of common property;
- a list of works and (or) management services, services and works for the maintenance and repair of common property, the procedure for changing such a list, as well as a list of utility services provided by the management company;
- the procedure for determining the price of the contract, the amount of payment for the work of the management company and for public services, as well as the procedure for paying for public services;
- the procedure for reporting by the company on the fulfillment of obligations.
Additionally, you can include conditions on the following responsibilities of the management company:
- 24-hour emergency dispatch service at home;
- storage and processing of technical documentation for the house, documents on the management of the house (this includes each protocol of disagreements to the agreement for the management of an apartment building);
- reception of owners and tenants within the time frame and in the manner stipulated by the contract;
- issuing certificates and statements from personal accounts;
- drawing up acts of damage to personal or common property;
- collection of fees under the management agreement;
- periodic inspection of the house and preparation of a plan for current and major repairs, listing the work, the deadline for its completion and the approximate cost;
- changing the list of works and (or) services, the timing of their implementation only by decision of the general meeting of owners (clause 26 of Order of the Ministry of Construction of Russia dated July 31, 2014 N 411/pr);
- other conditions.
Requirements for a trust management agreement
The legislation defines the requirements without which a property trust management agreement will not be considered concluded. The contract must contain conditions that relate to:
- the composition of the property that is transferred to trust management;
- the name of the citizen or the name of the legal entity in whose interests the property will be managed;
- the form and amount of remuneration to the manager, if such payment is provided for in the trust management agreement;
- the duration of this agreement.
How to make changes to the management agreement or terminate it?
Changes and (or) termination of the management agreement are carried out in accordance with Art. 450-453 of the Civil Code of the Russian Federation (Part 8 of Article 162 of the Housing Code of the Russian Federation). Termination of the contract by the owners unilaterally is possible on the grounds of Art. 8.1 and 8.2 Housing Code of the Russian Federation:
- an agreement concluded with a management company as a result of a competition can be abandoned before the end of each year from the date of its conclusion by holding a meeting to elect a new management company or change the way the house is managed;
- in case of failure by the company to comply with the terms of the contract;
- at any time based on the decision of the meeting to change the method of managing the house (Part 3 of Article 161 of the RF Housing Code, FAS Russia dated December 18, 2013 N AC/51348/13).
When changing the management company or when changing the management method, which entails termination of the contract with the management company, the company is obliged to transfer to the new service provider within 3 working days all documents and keys to the common property, as well as everything necessary for the operation and management of the house (Part 10 of Art. 162 Housing Code of the Russian Federation).
What disputes arise with the management company?
Both owners and management companies often violate the restrictions established for them by law, which becomes the cause of litigation. For example, this situation is common. On the one hand, the owners at the general meeting must set such a price for the maintenance of residential premises and common property so that this money is enough to meet the requirements of the law for maintenance. Therefore, the price cannot be arbitrary. On the other hand, even if the owners have determined a low value, the management company does not have the right to change this unilaterally (clauses 16-18 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 27, 2017 N 22). Therefore, she files a lawsuit to challenge the provisions of the agreement on the procedure for determining the amount of payment for the maintenance of residential premises and common property of the apartment building.
If the court, following a claim by the Criminal Code, invalidates the procedure for determining the amount of payment provided by the owners, it will not be applied, and the payment for the previous period will be recalculated. There are cases when owners did not like the fact that the management company was indexing the cost of repairs and maintenance of property, and they demanded through the court that the terms of the indexation agreement be declared illegal. The court will refuse the owners if the indexation was provided for by the decision of the general meeting, and they do not recognize the actions of the management company on indexation as a unilateral change in the amount of the fee (Appeal ruling of the Voronezh Regional Court dated 03/01/2018 in case No. 33-1707/2018).
It is also legal to change the price, which depends on the increase in tariff. If the management company provided in the contract the opportunity to take more money from the owners in connection with an increase in tariffs, then the change in the cost of repairs and maintenance of the property will not be considered arbitrary. The basis for the actions of the Criminal Code in such cases are acts of the local government on changes in tariffs (see Part 4 of Article 158 of the RF Housing Code, Appeal ruling of the Supreme Court of the Udmurt Republic dated June 10, 2020 in case No. 33-2054/2015).
Also common are cases of challenging the terms included by the company in the house management agreement, but not considered or approved at the general meeting at which the owners decided to conclude the agreement. For example, the appeal ruling of the Rostov Regional Court dated May 3, 2012 in case No. 33-4822 declared it illegal for the management company to include the following costs in the housing tariff:
- for maintenance, repair and checking of meters;
- for maintenance and repair of gas networks;
- to pay tax under a simplified taxation system;
- to increase tariff profitability;
- for additional costs for repairs and maintenance of common property,
- to compensate for the costs of maintaining the management organization.
- The court considered that the owners should not pay for all this, since the minutes of the general meeting do not contain a decision on additional expenses of the owners.
Not only individual terms of the management agreement for an apartment building in 2020 can be disputed, but also the agreement as a whole. Such claims were filed by owners who did not sign an agreement with the management company. But the courts do not recognize contracts as invalid because of this. Since the house management agreement is an agreement with a plurality of persons on the side of the owners of the premises, the current legislation does not make the fact of concluding an apartment management agreement dependent on the signing of such an agreement by all owners without exception (Appeal ruling of the Smolensk Regional Court dated 08/09/2016 in case No. 33-2446/ 2016).
What objects can be transferred?
An object of trust management is a property (thing, object), the management of which the founder entrusts to another person. This is the main component of the agreement. Article No. 1013 of the Civil Code is devoted to objects of trust management.
According to the Civil Code of the Russian Federation, the following can be transferred:
- securities;
- sets of property assets;
- copyright;
- apartment;
- a private house;
- trading platforms;
- warehouses;
- office buildings;
- enterprises;
- other objects that belong to the category of real estate, etc.
The object must meet the following requirements:
- to be an individually determined thing;
- constitute non-consumable property;
- be separated from the property of the parties to the agreement;
- represent a certain value;
- not to be withdrawn from civil circulation.
Property that is under operational management or economic management is not transferred to trust management. The exception is cases of liquidation of a legal entity, the owner of an object.
Money cannot act as an object. Exceptions are cases provided for by current legislation.
A property trust management agreement regulates the relationship between the owner of the property and the person whom he trusts to manage the property on his behalf.
The specifics of the trust management agreement depend on the type of property transferred for management.
We will consider the following types of trust management agreements, with samples:
- general (framework) agreement
- ward's property management agreement
- agreement for the management of property constituting the endowment capital
- contract for managing the property of a missing citizen
- real estate management agreement
- inheritance property management agreement
For all of these types of contracts there are general requirements . They are as follows:
The agreement is concluded between the owner and the manager. The owner may instruct the manager to act in his personal interests, or in the interests of another person who is not a party to the agreement.
The contract has a specific validity period. During this period, the manager is practically unlimited in the disposal of the property under management. The main condition is that all actions must be performed in the interests of the owner.
Participants in legal relations have the right to know that they are entering into an agreement not with the owner of the property, but with the manager. For oral transactions, he is obliged to warn about this, and for transactions made in writing, make a special note of the form “D.U.”
Expert opinion
Kurtov Mikhail Sergeevich
Practitioner lawyer with 15 years of experience. Specializes in civil and family law. Author of dozens of articles on legal topics.
Violation of this requirement entails financial liability of the manager himself, and not at the expense of the property under trust management.
What property can be transferred to trust management?
The object of trust management most often is real estate, securities that have a value expression of rights (property and intellectual) as well as other types of property.
Actually, the law establishes three prohibitions on trust management. Thus, the following cannot be transferred to management:
a) money as an independent object
b) things that are under economic control
c) things that are under operational management
Accordingly, any objects that are not subject to these prohibitions may be subject to trust management.
Money is transferred to trust management through the mechanism of funds, or using banks and the features provided for by the legislation on the securities market.
Who can be a trustee?
A legal entity or individual entrepreneur whose corresponding type of activity is provided for in the charter (constituent) documents or upon registration can act as a trustee. And if it is necessary to obtain additional permits, if such permits are available (for example, for professional participants in the securities market).
From among the citizens, the trustee may be the executor named in the will (the person executing the will), or the trustee who manages the property of the ward.
In most cases, by virtue of an agreement, a commercial organization or entrepreneur acts as a trustee, and on the basis of law, individuals are involved in trust management.
It is prohibited to act as a trustee for local self-government and state authorities, as well as unitary enterprises.
It is not allowed to combine two roles under a trust management agreement, namely the manager and the beneficiary. The reason, I think, is obvious. At a minimum – suspicions of a lack of objectivity.
Responsibility of the trustee
The manager must pursue one and main goal - caring for the interests of the person who entrusted him with managing the property.
For violation of this principle, the negligent trustee is obliged to compensate for direct losses caused to the property and lost profits from its use for its intended purpose.
However, caring is a double-edged sword. An overzealous manager who violates the limits of the powers granted is liable for the damage caused by his own property.
As well as responsible for debts incurred as a result of the implementation of trust management.
This is important to know: Statement of claim for debt collection by receipt: sample 2020
In turn, the manager is paid a remuneration from the income received from the use of property under trust management.
What must be included in the trust management agreement?
A trust agreement is always concluded in writing.
If the subject of management is real estate, then the trust management agreement must be registered, as in the case of sale and purchase.
Violation of any of the above conditions entails the invalidity of the contract.
The property that is transferred for management is specifically listed in the contract.
It also indicates who the founder of the management is. In other words, who is the owner of the property who decided to transfer it to management.
It is separately stipulated in what amount, form and within what time frame the manager receives remuneration for his activities.
As a general rule, the validity period of a trust management agreement does not exceed five years. Existing exceptions relate to investment and securities laws.
Expert opinion
Kurtov Mikhail Sergeevich
Practitioner lawyer with 15 years of experience. Specializes in civil and family law. Author of dozens of articles on legal topics.
If, upon expiration of the trust management agreement, none of the participants declares their intention to terminate it, then the agreement is considered extended for the same period.
Samples of trust management agreements for downloading:
Termination of the trust management agreement
There is a certain list of circumstances due to which a trust management agreement is considered terminated. Among them:
- death or liquidation (for organizations) of the beneficiary
- refusal of the beneficiary to receive benefits under the contract in the future
- death, incapacity or bankruptcy of the trustee
- withdrawal from the contract due to the fact that the trustee has lost the ability to personally dispose of the managed property
- refusal of the agreement by the founder for other reasons, with mandatory payment of remuneration to the manager
As a general rule, a party that intends to withdraw from a trust management agreement is required to notify the other party of this three months in advance. The contract may establish a different period.
Property transferred to trust management upon termination (termination of validity) of the agreement is returned to the founder.
Still have questions? Feel free to ask them in the comments!
