The right to operational management of property: Art. 296 of the Civil Code of the Russian Federation in 2020

The concept of operational management rights

In the early 60s, the Soviet legal system was expanded and many new systems and concepts emerged.
And one of these concepts was the right of operational management, which belongs to the category of property rights and is used by government agencies and other government structures that are not the owners of material assets, but exercise control over the rational and efficient use of material resources. Many experts believe that the right of operational management helps to create a more efficient system, which is characterized by the rational use of property interests that are in state or municipal ownership. So, for example, Article 120 of the Civil Code of the Russian Federation states that, if necessary, the government structures of our country can create government institutions that will be entrusted with the responsibility to control and manage property values.

At the same time, it is worth noting that the subject of operational management can be created not only by state and municipal structures, but also at the request of the owners of any property.

How the right of operational management is terminated in the event of the destruction of property

Termination of operational management in the event of loss of property is provided for in paragraph 1 of Art. 235 and paragraph 3 of Art. 299 of the Civil Code of the Russian Federation.

If property is destroyed, write it off. If the property is registered in the cadastral register or the rights to it are registered, remove it from the register and terminate the rights to it in the Unified State Register of Real Estate.

How to write off property

If you are a federal agency or enterprise, then create a write-off commission. To do this, prepare and approve by order of the head the regulations on the commission and its composition. This is indicated in clause 7 of the Regulations on the write-off of federal property.

If you do not have competent employees to participate in the commission, involve experts. But do not take the person responsible for this property as an expert (clause 9 of the Regulations on the write-off of federal property).

At least 2/3 of its members must be present at the commission meeting.

The commission draws up a write-off act. It is valid if it is signed by the majority of those present at the meeting.

The manager approves the act independently or coordinates it with the founder (clause 10 of the Regulations on the write-off of federal property). Cases of both are listed in clause 4, 4.1 of the Regulations on the write-off of federal property. Federal authorities establish the procedure for such approval for subordinate institutions and enterprises.

Reflect the write-off of property in accounting (clause 12 of the Regulations on the write-off of federal property).

If you are a regional or municipal institution or enterprise, then write off your property in the manner prescribed by local regulations. If there is no such act, then apply by analogy the procedure described above.

How to remove real estate from cadastral registration and redeem rights in the Unified State Register of Real Estate

To remove destroyed real estate from cadastral registration or terminate rights to it in the Unified State Register of Real Estate:

1) receive an inspection report. To do this, contact a cadastral engineer (Article 23 of the Law on Real Estate Registration);

2) issue for your manager or other employee a power of attorney from the body exercising the powers of the owner to remove from the cadastral register or terminate the right of ownership in the Unified State Register (Clause 4, Part 1, Article 15 of the Law on Real Estate Registration);

3) submit an application to Rosreestr for termination of ownership and operational management rights. If it is not the manager acting on behalf of the institution or enterprise, then to terminate operational management you will need a power of attorney from the institution (enterprise).

Otherwise, registration proceeds in the same way as when removing property from operational management.

Legislative regulation

The Civil Code contains the basic provisions on property rights and the forms of its implementation. In particular, there is a special article devoted to operational property management.

In addition to the Civil Code, issues of managing state and municipal property are regulated by instructions and regulations adopted both by the federal government and its individual bodies (Rosimushchestvo), and at the regional level.

The Federal Property Management Agency has published a special letter on the disposal of state real estate.

Federal authorities have the right to give only recommendations regarding property owned by a region or municipalities.

Organizations that are not related to the state or municipalities are obliged to adhere exclusively to the provisions of the Civil Code. The application of clauses of other acts, for example, when concluding an agreement for the operational management of property, is possible at the request of the owner.

Limits of exercising the right of economic management of property

Considering the fact that the right of operational management provides for some restrictions regarding the free disposal of property, the owner of material resources retains the right at any time to demand the return of property to them and withdraw it from the circulation of the enterprise.

Article 296 of the Civil Code of the Russian Federation regulates issues of this nature in more detail. It states here that the owner can seize the property mass for the following reasons:

if control and management of property resources is carried out irrationally and entails certain losses (especially typical for state and municipal property);
if resources are used contrary to the owner’s opinion;
if over a certain period of time the property is not used for its intended purpose and cannot bring a certain economic result.

The right of operational management of property is the right of an institution or a state-owned enterprise to own, use and dispose of the owner’s property assigned to it within the limits established by law, in accordance with the goals of its activities, the tasks of the owner and the purpose of the property (clause 1 of Article 296 of the Civil Code of the Russian Federation).

The subjects of this right can now be both unitary (state-owned) enterprises, strictly speaking, belonging to the category of commercial organizations, and institutions financed by owners, belonging to non-profit organizations. The founder-owner creates subjects of operational management law, determining the scope of their legal capacity, approving their constituent documents and appointing their managers.

The owner can also reorganize or liquidate the institutions (or state-owned enterprises) created by him without their consent. The powers that make up the right of operational management are of a strictly targeted nature, determined by the functions performed by the institution (or state-owned enterprise). The owner sets direct tasks for such legal entities for the intended use of the property allocated to them (in particular, in the cost estimate of the institution approved by him).

It also determines the intended purpose of individual parts (types) of property assigned to the subjects of operational management rights, by distributing it (for accounting purposes) to the corresponding special funds. At the same time, property, including money, listed in one fund, as a general rule, cannot be used for purposes for which another fund exists (if the latter is insufficient).

The object of the right under consideration is the property complex - all types of property assigned by the owner to the institution or acquired by it in the process of participation in civil legal relations. At the same time, the founding owner has the right to withdraw from the subject of operational management rights without his consent excess, unused or misused property and dispose of it at his own discretion (Clause 2 of Article 296 of the Civil Code of the Russian Federation).

However, such seizure is allowed only in these three cases provided for by law, and not at the free discretion of the owner. Such a “narrow” nature of the powers of the subject of operational management law is due to the limited nature of its participation in property (civil) turnover. At the same time, this circumstance should not worsen the position of its possible creditors.

Housing encyclopedia. - M. Garant. L. Yu. Grudtsyna. 2008.

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the right of operational management is a special type of property rights in the civil legislation of the Russian Federation. In terms of the scope of powers, it is significantly inferior to the right of ownership and the right of economic management. In accordance with the Civil Code of the Russian Federation, subjects of P.o.u. can only be a state-owned enterprise and... ... Large legal dictionary

RIGHT OF OPERATIONAL MANAGEMENT - in accordance with the civil legislation of the Russian Federation, a special type of property rights. In terms of the scope of powers, P.o.u is significantly inferior to the right of ownership and the right of economic management. In accordance with the PS of the Russian Federation, the subjects of P.o.u. can only be... ... Encyclopedic Dictionary of Economics and Law

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The right of operational management and the right of economic management of state property. K. P. Kryazhevskikh. The book is the most complete study in which problems of significant importance for the science of civil law are solved in a comprehensive monographic form. Theoretical value... Read more Buy e-book for 249 rubles

Operational management of property as a property right is granted by the Civil Code of the Russian Federation to state government institutions and enterprises. This right is used in both public and private property.

Operational property management is characterized by the following features. This right is exercised by government agencies within the framework of the law in accordance with the specific goals of their activities and the purpose of their property. Unlike the owner of property, the powers of the holder of this right have limits. They can be determined by the owner, who has the right to dispose of it at his own discretion or even seize the property from the holder of the right of operational management.

Subjects to whom operational management of property is assigned. may have different statuses and be assigned different tasks. In connection with this, the Civil Code defines different norms of this right.

As a rule, the state creates state-owned enterprises in the most important areas and areas of economic activity. Therefore, it is directly interested in ensuring that the property base of these enterprises is retained by them and contributes to the implementation of the tasks assigned to them. That is why the operational management of property is strictly regulated by the Civil Code and is largely limited to strict limits.

The owner of the property may withdraw the property from operational management in the event of its irrational use and transfer it to another enterprise at his own discretion. At the same time, the owner of the property has the right to determine the main directions of activity of the government institution, as well as the distribution of the income it receives.

A state-owned enterprise can alienate and dispose of property transferred to it under the right of operational management only with the consent of the owner. It can only sell its products independently.

Institutions can be not only public, but also private. Therefore, the regime of operational management rights should reflect the characteristics of the functions performed by the enterprise, the ability to manage income, etc.

Institutions that have property under management cannot dispose of it independently. However, property owners are responsible for the possible consequences of their interference in the economic activities of the enterprises to which the property is transferred for management. This is expressed in the establishment of subsidiary liability for the obligations of state, budget and private institutions in cases of insufficiency of their own property.

In addition, there is also the right to manage property. It, like operational management, belongs to a legal entity. It consists in granting powers to dispose of someone else's property. The purpose of these rights is to create opportunities for independent participation of legal entities that do not own their own property in civil circulation.

The holders of the right of economic management are state and municipal enterprises. Economic management of property and operational management of property differ in the content and scope of powers received by their holders from property owners.

Designation

Operational management is the right to manage a business and is derived from the right of ownership. It can only be used by a legal entity. To put it simply, the point is that property owned by a municipality or government agency can be used as necessary, that is, the right to such actions is transferred to another person, although they are limited.

The owner or director of the enterprise has the following rights:

Creating tasks and setting deadlines for their completion.
Making changes to the organizational structure.
Control of organizational processes.
Control over the correctness and legality of the use of property.
Appointment of management personnel, who can also be a supervisory body from the state.

There are also clear limitations to this format of state property management, including:

Sales operations, including individual objects.
Rental.
Use as collateral for lending.

Important! If you obtain permission from the primary owner, that is, the state, even such actions may be permitted.

Among other features, the following should be highlighted:

Subjects cannot be divided into parts and shares; they are transferred to the manager only as a single whole.
The manager is responsible for the entrusted property; in addition, it is on the balance sheet of his enterprise.
The person carrying out the management in question is still subordinate to the primary owner.

Contents of law

The right to operationally manage an organization is that the interested institution will be able to perform the following actions:

The subject of jurisdiction can dispose of income that was received during the implementation of activities in accordance with the charter of the enterprise;
He cannot alienate the premises entrusted to him even when the main owner of the enterprise has given his consent;
Will be liable to credit institutions only to the extent that are at its disposal.

The features of this type of law include the following:

Such management must necessarily have a targeted nature corresponding to the goals of a particular organization;
The main owner of the property will bear subsidiary liability for all debts owed by the subjects of operational management rights.

The right to operational management of an enterprise has the following conditions:

All funds earned by a state-owned enterprise will always be distributed to the interested party who is the main owner of the property;
The products produced by this enterprise can be sold by this company independently.

Limited right

This is exactly what can be said about operational management; among the most important features are the following:

Only state-owned and most often manufacturing enterprises can be managed in this way; the property is owned by the state directly or through the municipality.
The operational manager manages property, but only in the area where the enterprise operates. Sometimes adjustments to certain actions occur due to the instructions of the owner.
It is impossible to dispose of the entrusted property without the consent of the state. The only thing that is possible is to sell the products produced.

Functions and tasks of the manager

The one who stands at the helm of operational management has certain functional tasks that, upon becoming the owner, he is obliged to perform. He is also given specific tasks for which he bears responsibility.

Functions

Among them are:

Coordination of the work of all structural divisions. If we consider a full-cycle manufacturing enterprise, then the manager’s functions include order processing, communication with production facilities, and sales of finished goods.
Work with document flow. In this case, the operational manager is responsible, and not the final owner, that is, all the necessary papers, in particular reports, must be prepared in a timely manner, otherwise liability under the law cannot be avoided.
Planning. Managers control the deadlines for completing assigned tasks. In addition, the owner must be provided with a report.
Production management, including quality control of manufactured goods.
Accounting for costs that cannot be eliminated and their adequate justification.
The technical component for performing production tasks, that is, equipping with all the necessary units, accounting, safety and dispatch of manufactured goods.
Inventory accounting and timely procurement of raw materials.

Tasks

The tasks that are set before the operational owner are numerous, but the main one is to make production profitable. Among the key tasks that contribute to this:

Determining the volume of goods produced that can be produced at existing facilities.
Selecting a production location based on the price-quality parameter.
Coordination of orders received by the enterprise.
Issuing assignments for work.
Establishing adequate deadlines for completion.
Monitoring compliance with rules and deadlines.
Ensuring maximum operational efficiency.

Operational management functions

It is quite common for the owner to transfer certain property to the management of a trustee or a certain organization. Operational management functions can be described as follows:

management of the movement of material assets, as well as reflection of these processes in accounting and tax reporting;
continuous monitoring of the condition and serviceability of the funds transferred to the management (this is important from the point of view of determining the scope of responsibility of the owner and the trustee);
determination of prices and tariffs for goods and services produced using material assets transferred to management (the interests of all parties to the contract must be respected);
making tax payments;
formation of a production budget, as well as close monitoring of its implementation;
preparation of legal documents that regulate the rules and conditions for managing the received property;
establishing relationships with suppliers and clients, as well as organizing staff work.

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How is the right to operationally manage real estate regulated?

Legislative norms governing the ownership of real estate and other rights to them are described in the Civil Code of the Russian Federation. In addition to general or private ownership of property, the law allows for its transfer to operational management. This possibility is specified in Article 296 of the Civil Code. The type of property, movable or immovable, does not matter.

It is important to register such property management. These requirements are spelled out in Article 131 of the Civil Code and the Law “On State Registration of Real Estate”.

What are the objects of economic management and operational management

The rules governing the right of economic management are enshrined in the Civil Code of the Russian Federation (p. 294).
They reveal this institution as the right belonging to state and municipal unitary enterprises to own, use and dispose of the owner’s property. As can be seen from the definition, one of the main components in this area is the legal status of the owner of the right, which is a state or municipal unitary enterprise. Its concept is also given by the Civil Code of the Russian Federation in Art. 113: “a commercial organization that is not vested with the right of ownership of the property assigned to it, but possesses it with the right of economic management.”

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The specificity of unitary enterprises is that they have special legal capacity, which consists in the possibility of acquiring rights and exercising responsibilities that correspond to the goals and subject of activity enshrined in the charter of the unitary enterprise.

The subject and goals of the activities carried out by such an enterprise must be determined by the owner of the property, i.e., the state or municipal entity. Thus, goals can also be social. As a rule, unitary enterprises are created in the form of communal complexes that are engaged in providing public services and providing the population with goods and services.

Speaking about the features of the right of economic management, it is worth noting, first of all, the entity, which is a commercial organization, and, therefore, is obliged not only to preserve public property, but also to increase it. To fulfill these duties, the law has provided certain control mechanisms:

restrictions established in the Civil Code of the Russian Federation regarding the rights belonging to the holder of the right of economic management, consisting in vesting the owner with the following rights: to give consent or refuse to sell; for mortgaging or renting, etc.;
restrictions established in the Federal Law “On State and Municipal Unitary Enterprises” related to transactions on the property of the enterprise (loans, guarantees, encumbrances, assignment of claims, debt transfers, conclusion of contracts, major transactions, etc.).

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It is worth emphasizing that the draft Concept for the development of legislation on property rights, which was developed according to Decree of the President of the Russian Federation No. 1108, does not talk about the right of economic management. The developers justify this by the need to eliminate the dualism of rights, proposing to leave only the right of operational management in the law.

Based on the foregoing, we can conclude that the right of economic management, during the period of its existence in a market economy, has become a kind of convenient way to dispose of the owner’s property, thereby discrediting itself. Thus, state property can be sold only through privatization, and it can be leased only through auction, while the disposal of public property is publicly available.

The right of economic management and the right of operational management have both common features and differences. It is possible to trace them by considering certain categories.

Subjects of property rights:

in the right of economic management - municipal and state unitary enterprises;
in the right of operational management - municipal and state government institutions and enterprises.

Property owner:

in the right of economic management - municipalities, constituent entities of the Russian Federation, the Russian Federation;
in the right of operational management - municipalities, constituent entities of the Russian Federation, the Russian Federation.

Powers of subjects in relation to property transferred to them:

in the right of economic management - possible both without the consent of the owner, if the property is movable, and only with his direct consent, when we are talking about real estate;
in the right of operational management - as a rule, disposal occurs only with the consent of the property owner. Moreover, in the case where an institution has been granted the right to carry out income-generating activities, all income and property received as a result of this is subject to the disposal of the institution. Also, a state-owned enterprise can independently sell the products it produces.

Owner's rights in relation to property:

in the right of economic management - the owner has a part of the profit received after using the property, and also controls the process of its use;
in the right of operational management - the owner has the right to seize unused, excess property, as well as to distribute the income of the enterprise.

The most significant difference between the right of operational management and the right of economic management is that the management of an enterprise or institution acts as a subject of the second category. In the first case, the subjects of legal relations that are associated with management may be a wider range of persons.

Thus, these categories differ in several ways. The right of economic management, taking into account the restrictions imposed on subjects, is given more freedom.

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The right of economic management and the right of operational management are real rights. They are settled by ch. 19 Civil Code of the Russian Federation.

The subject of the right of economic management has all the powers that constitute the right of ownership, however, these powers, according to Art. 294–295 of the Civil Code of the Russian Federation, are limited by the will of the owner.

A person who owns objects with the right of operational management is also granted the rights of ownership, use and disposal (as in the case of the right of economic management of property) to a limited extent. These restrictions will be discussed in more detail below.

Let us note that the right of economic management and the right of operational management of real estate arise from the moment of their state registration (paragraph 2, paragraph 5 of the resolution of the plenum of the Supreme Court of the Russian Federation No. 10, plenum of the Supreme Arbitration Court of the Russian Federation No. 22 of April 29, 2010).

Subjects of the right of economic management include only unitary enterprises (SUE, MUP).

Based on the right of operational management, property is assigned to private, autonomous, budgetary institutions, and state-owned enterprises.

Persons who have the right of economic management and the right of operational management do not acquire property due to the absence of one of the important grounds for the application of acquisitive prescription - ownership of the property as their own, which implies that the person treats the property as his own. Of course, having received a thing from the owner under a limited property right, the subject does not consider it his own. This provision is confirmed by judicial practice.

As an example, let us cite the resolution of the Federal Antimonopoly Service of the Far Eastern District in case No. A51-8234/2011 dated 03/06/2012. In this case, the plaintiff-institution asked to establish the fact of ownership of property by acquisitive prescription. The request was denied. The court indicated that this method of acquiring rights to property could not be used by the applicant. Having the status of an institution, he could not become the owner of the property under his control.

The object of these real rights is property.

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Moreover, property is the object of these rights, regardless of whether it is transferred by the owner or relates to fruits, products and income from its use (clause 2 of Article 299 of the Civil Code of the Russian Federation).

Movable and immovable things are transferred to economic management and operational management.

The right of economic management presupposes the following restrictions (established by the Civil Code of the Russian Federation and the federal law “On State and Municipal Unitary Enterprises” dated November 14, 2002 No. 161-FZ):

disposal of real estate - with the permission of the owner (this means both sale and pledge, rent, and other transactions);
the disposal of movable things and real estate should not deprive entities of the opportunity to carry out statutory activities.

Right of economic management	Right of operational management
1. Subjects
State or municipal unitary enterprises	State-owned enterprises, private, budgetary, autonomous institutions
2. Are the entities commercial organizations?
Yes	No (exception - state-owned enterprises)
3. Disposal of movable property
Without restrictions (with exceptions provided by law or other legal acts)	Limited or partially limited in relation to certain types of property
4. Disposal of income received from the use of property in economic management or operational management
Not limited	Limited by the goals of the activity and indication in the constituent documents (exception - state-owned enterprises)

Thus, the right of economic management and the right of operational management differ in a number of parameters. From the point of view of the restrictions imposed, subjects of the right of economic management are given more freedom. These rights are real. However, they are limited in favor of the property owner, since they arise on the basis of an act issued by him, that is, they are derived from the right of ownership.

Operational management and operational management are types of rights that determine the degree of ownership and authority regarding the disposal of certain objects. These categories define the relationships between owners, trustees, and personnel who directly deal with the property transferred to the organization for management.

Operational management and operational management are unequal concepts. Thus, the subjects of the first can only be legal entities registered as enterprises of specific types. Speaking about operational management, it is worth saying that both industrial and non-profit organizations and societies, as well as entrepreneurs, can take part in these relations.

Economic and operational management also differ in the scope of powers granted to the parties. The first is broader, since such a right can be granted directly to a commercial enterprise. As for the second category, here we can talk about government organizations or institutions that do not have the goal of making a profit.

What is registration of operational management

Under the right of operational management, property is assigned for free use and implementation of its own activities. In particular, in this way state property is transferred to budgetary organizations - kindergartens, schools, etc.

But just transferring property is not enough. You need to register the rights themselves, that is, confirm their transfer. Law No. 218 defines registration as entering the relevant data into the Unified State Register of Real Estate.

Operations management process

The operational management process consists of a number of activities. The main ones:

Establishing exact coordinates and time frames in accordance with which the objects will be operated.
Continuous management of all processes and operations that are carried out throughout the entire period of operational management.
Constant monitoring of the current state of affairs in order to compare it with planned indicators.
Prompt response to any deviations in the process to implement corrective measures.

The disposal of property is carried out not only in accordance with the statutory documents, but is also regulated by legislative acts.

The right of operational management can be granted directly to the owner of the objects or to the organization to which he has delegated certain responsibilities.

Enterprises have very limited powers, since the owner can dispose of the property at his own discretion at any time.

A prerequisite for the transfer of property to operational management is that it must be used strictly for its intended purpose, in accordance with the purposes specified in the organization’s statutory documents.

If the conditions are violated, the owner has every right to seize material assets. Misuse of property must be confirmed by an act drawn up based on the results of a special inspection.

Why and who needs registration?

Despite the legislative requirement to register assignment to the right of operational management of real estate, many people wonder about the mandatory nature of this procedure. Since it requires certain expenses, as well as the collection of a number of documents, it is not surprising that people want to do without it.

However, having received property and begun to use it, without registration, the institution does not receive the right to this property, which is fraught with difficulties in the event of controversial situations.

According to Law 218, registration is the only reliable confirmation of such right. After passing it, you can challenge the rights of operational management only in court.

Procedure for registering rights

The right of operational management of real estate arises on the basis of the transfer of the property by the owner to the company that will manage it. To register, you need to submit a list of documents to Rosreestr. An application for registration is also submitted by the company to which such rights are transferred. You can submit your application in person or by mail. In addition, it is possible to apply for registration at the MFC or through the State Services portal. This type of registration is not subject to state duty. The procedure itself boils down to checking the submitted documents and entering the necessary information into the register.

Documents required for registration

Registration of lease of property under the right of operational management requires the submission of the following documents:

Constituent documents of the enterprise;
Personal documents of the applicant confirming his authority;
Document on securing the object;
Documents confirming the fact of transfer of property.

It is not necessary to submit additional documentation, namely an extract from the Unified State Register of Legal Entities, the state property register and a cadastral passport. They are considered additional documents and are submitted upon request.

If documents are submitted by a representative of the organization, he must have a valid power of attorney with the appropriate rights.

Agreement structure

The contract for the right to operational management of property has approximately the following structure:

information about the parties to the agreement;
list of transferred property, its characteristics;
information about real estate is taken from the register of rights to real estate;
the value of the transferred property;
a list of rights that the recipient legal entity receives;
rights and obligations of participants;
validity period, renewal procedure;
the procedure for making changes to the text of the agreement;
conditions for its early termination.

The transfer of real estate entails a change in the status of the land plot on which the object is located. This includes the unity of fate of the land plot and the real estate located on it.

The transfer of rights to the plot is formalized in the same agreement or in a separate agreement. Transactions are processed simultaneously.

What does the property management agreement include?

An agreement on securing property under the right of operational management can be concluded only on the basis of a resolution of the head of the municipality (administration). The right to manage property is exercised only by a legal entity that is able to effectively use the property transferred to operational management, based on the main type of activity of the organization.

The real estate operational management agreement specifies the following information.

Data of the parties to the contract.
Data on the subject of the contract. This may be the name of the property, its location, technical characteristics, purpose.
The cost of the property transferred to management. It must be taken into account on the balance sheet of the legal entity.
Specific rights that an organization receives as a result of the transfer of property to operational management.
Responsibilities of the parties to the contract.
Contract time.
Instructions for making adjustments to the contract, if necessary.
Conditions under which the operational management agreement can be terminated early and unilaterally.
Signatures of the parties and sealing.

The contract for operational management of property must be accompanied by a transfer and acceptance certificate. The act should indicate a complete list of the property transferred to operational management, describe its technical characteristics, actual condition and established value.

When transferring premises to operational management, it is necessary to attach to the documents a certified copy of the floor plan of the building in which it is located. In a situation where the entire building is transferred under the contract, a technical plan of the building and the land plot on which it is located is attached to the documents.

Contract for operational management of real estate between an individual and an individual entrepreneur

The purpose of this agreement is to generate income from the rental of real estate, the beneficiary of which is an individual.

Is the obligation to pay personal income tax assigned to the founder of trust management at the place of his residence (registration) or can the trustee pay tax on personal income at the place of residence of the founder of trust management with a direct indication in the trust management agreement or in accordance with a separate order ?

Property relations between persons carrying out entrepreneurial activities under a property trust management agreement are regulated by Art. 1012-1026 Civil Code of the Russian Federation. Despite the fact that according to Art. 1012 of the Civil Code of the Russian Federation, the transfer of property into trust management does not entail the transfer of ownership of it to the trustee, in accordance with Art.

Attention

Terms of the property trust management agreement The Civil Code clearly lists the conditions that must be reflected in the text of the agreement. Without agreement between the parties, the property trust management agreement is simply considered unconcluded.

Thus, the essential conditions include:

about objects transferred to the manager (complex property is transferred according to the inventory);
the subject in whose interests the agreement will be implemented;
the amount of remuneration that the owner will pay to the manager (if remuneration is not expected, then the text of the agreement should directly indicate that it is gratuitous);
duration of the agreement (maximum 5 years).

The remaining terms of the property trust management agreement are not mandatory.

To protect the rights to property under management, the Trustee has the right to use any means of defense not prohibited by law, including a claim for recovery of property from someone else’s illegal possession, protection of the owner’s rights from any violations of his rights, even if these violations were not associated with deprivation possession, as well as protection of the rights of the owner who is not the owner (Articles 301, 302, 304, 305 of the Civil Code of the Russian Federation). 15. Option 1.

In the event of insufficiency of this property, foreclosure may be applied to the property of the Manager, and if his property is insufficient, to the property of the Founder that has not been transferred to trust management.

The founder of the management is obliged to warn the Trustee that the object transferred to trust management is encumbered with a pledge. Otherwise, the Trustee has the right to demand termination of this agreement on the grounds of clause 2 of Article 1019 of the Civil Code of the Russian Federation and payment to him of the remuneration due under this agreement for the year.

If trust management is a gratuitous agreement, the question is only raised about termination of the agreement, the requirement for remuneration is excluded. Within the limits provided by law, the Trustee shall exercise the powers of the owner in relation to the property transferred to his management.

The disposal of real estate is carried out by the Trustee in accordance with this agreement.

For all issues that have not been resolved in the terms of this agreement, but arising from the relations of the parties under it, affecting their property interests, the parties will be guided by the provisions of the current legislation of the Russian Federation. 28.

This agreement may be amended and/or supplemented by the parties during the period of its validity on the basis of their mutual consent and the presence of objective reasons that caused such actions of the parties. 29.

If the parties have not reached an agreement to bring the agreement into compliance with changed circumstances, at the request of the interested party, the agreement can be amended and/or supplemented by a court decision only if the conditions provided for by current legislation are met.

The consequences of changes and/or additions to this agreement are determined by mutual agreement of the parties or by the court at the request of any of the parties to the agreement.

When transferring property encumbered with a pledge into trust management, the pledgee's right to foreclose on this property is preserved. The founder of the management is obliged to warn the Trustee that the object transferred to trust management is encumbered with a pledge.

Otherwise, the Trustee has the right to demand termination of this agreement on the grounds of clause 2 of Article 1019 of the Civil Code of the Russian Federation and payment to him of the remuneration due under this agreement for the year. 12.

In a situation where it is not specified in the agreement, the profit from the use of the object is received by the founder of the management. As a general rule, the trustee can be an individual with the status of an individual entrepreneur or a commercial organization. This rule is quite logical, since the manager’s activity is entrepreneurial.

Fruits, products and income

If, in accordance with the constituent documents, an institution is granted the right to carry out income-generating activities, then the income received from such activities and the property acquired from these incomes come to the independent disposal of the institution and are accounted for on a separate balance sheet.

Fruits, products and income from the use of property under operational management, as well as property acquired by a unitary enterprise or institution under an agreement or other grounds, enter the operational management of the enterprise or institution in the manner established by the Civil Code of the Russian Federation, other laws and other legal acts for acquisition of property rights.

Seizure of property

It is allowed to seize property if:

it is not used;
not used for its intended purpose.

The law extends this right to objects assigned by the owner or acquired using funds allocated to them.

The owner has the right to dispose of the seized valuables as he sees fit.

Real estate operational management agreement: sample

A sample agreement is here.

Agreement for the right to operational property management No. 123

Sochi May 12, 2020

LLC "Remontnik" represented by Director Avilov Petr Ivanovich, acting on the basis of the Charter, hereinafter referred to as the "Administration", on the one hand, and OJSC "Karier" represented by General Director Fedorov Evgeniy Vasilyevich, acting on the basis of the Charter, hereinafter referred to as "Establishment" ", on the other hand, hereinafter referred to as the "Parties", have entered into this agreement, hereinafter the "Agreement", as follows:

1. THE SUBJECT OF THE AGREEMENT

1.1. Based on certificate No. 321-765 dated January 18, 2016, the Administration transfers and the Institution accepts under this Agreement property (non-residential premises, building, structure) with a total area of 98 sq.m., located at the address: Krasnodar Territory, Sochi , st. Promyshlennaya, 4 with the right of operational management. For use as: warehouses. The characteristics of the premises are indicated in the extract from the technical passport of the BTI No. AP-567 dated August 23, 2005, which is an integral part of this Agreement.

2. DURATION OF THE CONTRACT

2.1. The validity period of the Agreement for the right of operational management is set from May 12, 2020 to April 12, 2020.

2.2. This Agreement comes into force from the moment of its registration in the manner prescribed by law.

3. PROCEDURE FOR TRANSFER OF PROPERTY

3.1. The transfer of property to operational management is carried out according to the Acceptance and Transfer Certificate. The act of transfer of premises is drawn up in accordance with current regulatory documents, registered in the manner prescribed by law, certified by the parties and stored in the file for execution of the Agreement.

3.2. This non-residential premises is taken into account on the balance sheet of the Institution.

4. RIGHTS AND OBLIGATIONS OF THE PARTIES

4.1. Rights and obligations of the Administration.

4.1.1. The administration has the right to: control the intended use and safety of the property transferred to the operational management of the Institution.

4.1.2. The administration has the right to seize excess unused or improperly used property and dispose of it at its own discretion.

4.1.3. In the event of an unreasonable refusal by the owner of city property (or the previous balance holder) to transfer non-residential premises to the balance sheet of the new owner, the Administration takes measures to implement it in accordance with current legislation.

4.2. Rights and obligations of the Institution.

4.2.1. The institution has the right:

own, manage and use the property provided to him within the limits outlined by the requirements of the law, the goals of his activities, the tasks of the owner and the purpose of the property;
contact GorBTI to prepare a technical passport.

4.2.2. The institution is obliged:

maintain non-residential premises in accordance with the rules and regulations of technical operation;
carry out major and current repairs, re-equipment of premises related to the activities of the Institution, at his own expense, within the time frame established by the territorial administration or municipal district (but not more than 2 years) in accordance with the documentation developed in a specialized design organization;
not to make any redevelopment or re-equipment of the premises related to the activities of the Institution, without the written permission of the Administration;
ensure unimpeded access to non-residential premises for representatives of executive authorities and administrative bodies for the purpose of checking documentation and monitoring the use of premises;
not to take actions that impede the inventory of non-residential premises transferred under this Agreement;

An institution does not have the right to alienate or otherwise dispose of the property assigned to it, or to:

sale, gratuitous transfer to another person, lease;
make a contribution to the authorized (share) capital of business companies and partnerships;
pledge property;
carry out other actions that may entail the alienation of state property;

4.2.3. The institution does not have the right to transfer operational management rights to other legal entities and (or) individuals.

5. EARLY TERMINATION OF THE AGREEMENT

The contract may be terminated:

by agreement of the parties;
upon liquidation or reorganization of the parties in accordance with current legislation;

Non-residential premises may be seized from the user in accordance with the established procedure in case of violations of the conditions of operation and use, untimely payments or untimely development (repairs, in accordance with warranty obligations).

Management agreement for apartment buildings with the management company.

Read how to draw up a real estate trust agreement here.

How to draw up an operational real estate management agreement, read the link:

6. OTHER CONDITIONS

6.1. This Agreement is concluded in two copies (appropriately bound, numbered and certified by the Administration), one is kept by the Institution, the second by the Administration.

6.2. If the details change, the parties are required to notify each other in writing by registered mail.

6.3. The placement of advertising on the outside of premises under operational management must be approved in accordance with the established procedure.

6.4. The inclusion of any other additional property requirements in the Agreement, in addition to those included in the administrative documents, is not permitted.

6.5. Disputes arising under the Agreement are considered in accordance with current legislation.

6.6. From the moment this Agreement comes into force, previous documents on the right of ownership of property and the conditions for their conclusion are considered invalid. Other changes to the Agreement are made only by an additional agreement signed by the parties to the Agreement.

7. LEGAL ADDRESSES AND BANK DETAILS OF THE PARTIES

Administration

Legal address: Krasnodar region, Sochi, st. Lenina, 108, off. 3
Postal address: Krasnodar region, Sochi, st. Lenina, 108, off. 3
Phone/fax: 887654564321
INN/KPP: 567764\4576543
Current account: 3456700003456500001
Bank: Bank LLC
Correspondent account: 1787654335600000987654
BIC: 4568437
Signature: Avilov P.I.

Establishment

Legal address: Krasnodar region, Sochi, st. Galina Petrova, 17, office 5
Postal address: Krasnodar region, Sochi, st. Galina Petrova, 17, office 5
Phone/fax: 8876543212
INN/KPP: 5335679\564357867678
Current account: 12345698765433456
Bank: Finansist LLC
Correspondent account: 5653524365486789
BIC: 87653345
Signature: Fedorov E.V.

The process of securing property under the right of ownership

To do this, a corresponding agreement and act on the transfer of assets are drawn up, and an official order is issued by the head of the government body.

For registration you need to prepare:

constituent documents;
certificate of state registration of the enterprise;
cadastral passport or plan of production premises;
agreement on transfer of rights;
inventory of assets, acceptance certificate.

If the assets were purchased at the expense of the income of a state-owned enterprise or institution, then consolidation is not required and the object comes into independent disposal and is accounted for on a separate balance sheet. The right of operational management is subject to state registration. From the moment of securing, the risk of accidental death or damage to objects falls on the owner.

The state has no right to interfere in the operational and economic activities of enterprises, except in cases expressly provided for in their charter.

Features of operational management

Operational management is characterized by a number of specific features:

carried out continuously at all stages of the production process in order to achieve planned results;
the consequences occur not only at a specific moment of management, but also in subsequent periods (and this may also apply to the time when the operational management contract has expired);
has a specific goal, without which any management activities and actions do not make any sense (can be expressed both in monetary units and in indicators related to labor productivity);
is the basis of tactical and strategic plans, representing the main mechanism for translating them into reality.

Transfer of control rights

When ownership transfers to another government agency, the right of operational disposal is retained. This right arises from the moment of transfer of assets (in the case of real estate, from the moment of registration of rights in Rosreestr), and terminates upon the lawful seizure of assets by the owner, as well as other reasons established by law.

When the owner changes, for example, from a municipal to a constituent entity of the Russian Federation, a certificate of ownership of the owner is issued. Assets are transferred to the disposal of a state-owned enterprise only on the terms of their use for the implementation of the production or other plan of the state-owned enterprise or institution. In cases where assets are used to achieve other goals, they may be seized by the state. Confiscation occurs according to a certain procedure - with the drawing up of an act confirming the misuse.

The procedure for transferring property under operational management is determined by the Civil Code of the Russian Federation. State-owned enterprises can initiate the invalidation of acts of the owner on the seizure or disposal of an object entrusted to them.

Real estate operational management agreement: form

The contract form is here.

Agreement for the right to operational property management No. _____

____________________ ___________________________“___” ______________ _______

________________________________________ represented by ________________________________________, acting on the basis of _________________________________________, hereinafter referred to as the “Administration”, on the one hand, and ________________________________________ represented by ________________________________________, acting on the basis of ________________________________________, hereinafter referred to as the “Institution”, on the other hand, hereinafter referred to as the “Parties”, have entered into this agreement, hereinafter referred to as the “Agreement”, as follows:

1. THE SUBJECT OF THE AGREEMENT

1.1. Based on ______________ certificate No._______ dated “___”______________ _______, the Administration transfers, and the Institution accepts under this Agreement, property (non-residential premises, building, structure) with a total area of _______ sq.m., located at the address: ________________________________________ with the right of operational management. For use under: ________________________________________. The characteristics of the premises are indicated in the extract from the technical passport of the BTI No._______ dated "___"______________ _______, which is an integral part of this Agreement.

2. DURATION OF THE CONTRACT

2.1. The validity period of the Agreement for the right of operational management is established from “___”______________ _______ year to “___”______________ _______ year.

2.2. This Agreement comes into force from the moment of its registration in the manner prescribed by law.

3. PROCEDURE FOR TRANSFER OF PROPERTY

3.2. This non-residential premises is taken into account on the balance sheet of the Institution.

4. RIGHTS AND OBLIGATIONS OF THE PARTIES

4.1. Rights and obligations of the Administration.

4.1.1. The administration has the right to: control the intended use and safety of the property transferred to the operational management of the Institution.

4.1.2. The administration has the right to seize excess unused or improperly used property and dispose of it at its own discretion.

4.2. Rights and obligations of the Institution.

4.2.1. The institution has the right:

own, manage and use the property provided to him within the limits outlined by the requirements of the law, the goals of his activities, the tasks of the owner and the purpose of the property;
contact GorBTI to prepare a technical passport.

4.2.2. The institution is obliged:

maintain non-residential premises in accordance with the rules and regulations of technical operation;
carry out major and current repairs, re-equipment of premises related to the activities of the Institution, at his own expense, within the time frame established by the territorial administration or municipal district (but not more than 2 years) in accordance with the documentation developed in a specialized design organization;
not to make any redevelopment or re-equipment of the premises related to the activities of the Institution, without the written permission of the Administration;
ensure unimpeded access to non-residential premises for representatives of executive authorities and administrative bodies for the purpose of checking documentation and monitoring the use of premises;
not to take actions that impede the inventory of non-residential premises transferred under this Agreement;

An institution does not have the right to alienate or otherwise dispose of the property assigned to it, or to:

sale, gratuitous transfer to another person, lease;
make a contribution to the authorized (share) capital of business companies and partnerships;
pledge property;
carry out other actions that may entail the alienation of state property;

4.2.3. The institution does not have the right to transfer operational management rights to other legal entities and (or) individuals.

5. EARLY TERMINATION OF THE AGREEMENT

The contract may be terminated:

by agreement of the parties;
upon liquidation or reorganization of the parties in accordance with current legislation;

6. OTHER CONDITIONS

6.1. This Agreement is concluded in two copies (appropriately bound, numbered and certified by the Administration), one is kept by the Institution, the second by the Administration.

6.2. If the details change, the parties are required to notify each other in writing by registered mail.

6.3. The placement of advertising on the outside of premises under operational management must be approved in accordance with the established procedure.

6.4. The inclusion of any other additional property requirements in the Agreement, in addition to those included in the administrative documents, is not permitted.

6.5. Disputes arising under the Agreement are considered in accordance with current legislation.

7. LEGAL ADDRESSES AND BANK DETAILS OF THE PARTIES

Administration

Legal address: ______________________________
Mailing address: ______________________________
Phone fax: ______________________________
INN/KPP: ______________________________
Checking account: ______________________________
Bank: ______________________________
Correspondent account: ______________________________
BIC: ______________________________
Signature: ______________________________

Establishment

Legal address: ______________________________
Mailing address: ______________________________
Phone fax: ______________________________
INN/KPP: ______________________________
Checking account: ______________________________
Bank: ______________________________
Correspondent account: ______________________________
BIC: ______________________________
Signature: ______________________________

The difference between operational management and free use

In simple terms, property is assigned only by the state under the right of ownership. If assets are transferred for free use, then this can be done by any entity that is its legal owner.

Given the participation of the state, objects transferred to management are subject to assessment, as well as compulsory insurance every year. If a revaluation occurs, an additional agreement to the contract may be drawn up. The state fully controls the disposal process, which does not happen in the case of gratuitous use by other owners.

What is operational property management?

In simple terms, the state or municipality has some property. It is transferred for use and commercial benefit to a legal entity, but the right to dispose of (determine the legal fate) and own this property remains with the owner. Under the operational management agreement, the opportunity to conduct production activities and sell products is transferred.

In fact, the operational property management agreement has one task - to make production profitable.

The right of operational management is significantly limited. A legal entity can use it only to conduct production and economic activities and nothing else. Property used under the right of operational management cannot be sold, donated, pledged, or invested in the authorized capital.

At any time, the state or municipality, being the owner of the property, can seize part of it if it considers it to be excessively transferred to management. Seizure is also possible unilaterally if a legal entity uses the property for other purposes than those specified in the operational management agreement.

A legal entity that has received the right of operational management can lease out the received property. However, in this case it will be necessary to obtain the consent of the property owner.