Who manages the house if the owners have not chosen a management method and the competition has not yet been held?

In accordance with Decree of the Government of the Russian Federation No. 75 of February 6, 2006 “On the procedure for holding an open competition by a local government body for the selection of a management organization to manage an apartment building” and Art. 161 of the Housing Code of the Russian Federation approved the rules for holding competitions for the selection of a management company. Local government bodies receive the right to announce open competitions for the selection of management organizations if, during the year, residents of an apartment building at their meetings were unable to choose a different method, or the method they chose was not implemented.

In addition, the public authority is required to organize a meeting of residents 30 days before the end of the current contract. Unless another method is chosen at this meeting, the authorities again announce an open competition for the selection of a management organization.

You may be interested in: Services of a specialized bidding organization.

Principles of holding a competition to select a management organization

• The competition for the selection of management organizations must be held in conditions of fair competition. If this principle is violated, you should write a complaint to the FAS.
• When holding a competition to select a management organization, uniform conditions must be created for both individual entrepreneurs and legal entities. Their legal form does not matter.
• The winners of competitions for the election of management organizations are obliged to effectively use the funds of residents of apartment buildings solely for the purpose of ensuring the safety and convenience of living. Homeowners have the right to receive a detailed report on the use of funds.
• Information about an open competition to select a management organization must be publicly available. Full transparency of the entire procedure must be ensured. A special commission is appointed to conduct the competition and announce the winner, who becomes the managing organization based on its results.

General meeting of owners

The general meeting of owners of premises in an apartment building can be held in the form of in-person and absentee voting. Conducting a general meeting of premises owners in an apartment building in person (in the form of a meeting) provides for the joint presence of premises owners in a specific place and at a specific time to discuss issues put to vote.

The method of managing an apartment building is chosen at a general meeting of owners of premises in the apartment building and can be changed at any time based on its decision. The procedure and forms for holding a general meeting are regulated by Articles 44-48 of the Housing Code of the Russian Federation.

Absentee voting involves the adoption of decisions by owners (on appropriate forms) on issues put to vote in a place specially designated for this purpose at a certain time. A meeting in the form of absentee voting is most appropriate for holding a general meeting in conditions of a large number of owners in the house.

The decision of the general meeting of owners in the form of absentee voting on the choice of method of managing the house is made by a majority vote of the total number of votes taking part in this general meeting.

If there is no quorum for holding a general meeting, a repeated procedure may be carried out to select a method of managing an apartment building.

Decree of the Government of the Russian Federation of February 6, 2006 N 75 “On the procedure for holding an open competition by a local government body for the selection of a management organization to manage an apartment building”

Control

According to the Housing Code, residents have the right to monitor the organization that won the competition. It lies in the possibility:

• checking the quality, volume and frequency of services provided;
• carrying out external examination;
• requesting the necessary documentation;
• receiving an annual report.

You may be interested in: Support of participation in tenders, competitions, auctions

Choosing a method for managing an apartment building

The decision on the form of management of apartment buildings is made by homeowners at a general meeting. Voting can be carried out in person and in absentia. In-person voting will require residents to be present together and vote directly.

Absentee voting is carried out only if it is impossible to organize a similar event in person. The quorum is calculated depending on the total number of votes that all homeowners in the apartment building have.

Owners voting

In order for the vote to take place, there must be a certain quorum of the total number of residents at the meeting. It is calculated according to the principle “1 vote – 1 sq.m.”

To calculate the quorum, it is necessary to calculate the total area of ​​residential premises (100%). Then a calculation is made of what percentage of the total number of votes are the votes of the residents who came to the meeting. If there are more than 50% of such votes, then there is a quorum for holding the meeting and, therefore, you can choose the method of management. If there is no quorum, then absentee voting will have to be held.

Owners are notified of the vote by registered mail or a notice that is handed to them personally against signature. The notice can also be posted on a notice board at home.

Full-time and part-time

If the meeting is held in person, you will need to register everyone who comes: check your passport, title documents for real estate and enter information into the registration sheets. The number of participants who appeared and the percentage of their votes is recorded in the protocol.

In-person voting is carried out in proportion to the area of ​​housing owned by the owner.

Voting is carried out according to the issues and initiatives specified in the protocol. The votes are recorded on prepared ballots, on which the organizers enter in advance the area of ​​the voter’s living space.

At least 50% of the votes must be cast for each issue. If a representative of the homeowner participates in the meeting, the secretary of the meeting checks the original of the notarized power of attorney and attaches a copy of it to the minutes.

If more than 50% of the votes are cast for the choice of management form, then it is approved by the meeting and brought to the attention of all residents within 10 days from the date of the decision.

The protocol is stapled together with the ballots and signed on the last page. Signatures must be given:

• chairman of the counting commission;
• secretary;
• chairman of meeting.

When stitched, the minutes are signed by the chairman and secretary of the meeting.

Absentee voting is carried out using personal ballots, which indicate:

• FULL NAME. home owner;
• apartment area;
• list of questions.

The ballots also indicate the place of their delivery. The decision is made taking into account the majority of votes. The results of absentee voting are recorded in a protocol, which is filed along with the ballots and signed by the chairman and secretary of the meeting.

Minutes of the meeting

The draft document is prepared at the stage of organizing the meeting.

In addition to choosing the form of management of the MKD, the following questions can be put up for voting:

• selection of the chairman and secretary of the meeting;
• selection of a counting commission, which is optional, but necessary if there is a significant number of owners;
• choosing a storage location for the protocol.

Based on the voting results, the protocol must be signed by the chairman, the counting commission (if there is one) and the secretary.

Find out about the rules for holding a general meeting of owners of an apartment building. What are the quiet hours in an apartment building? Information here.

When is a major renovation of an apartment building carried out? Details in this article.

Legal assistance

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• when organizing and conducting the competition, we act strictly in accordance with the requirements of Government Decree No. 75 of 02/06/2006;
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• individual approach to each case.

In the event that the owners of the premises of an apartment building during the year before the competition at the general meeting were unable to choose a method of managing their house or chose, but the decision they made on choosing a method of managing the house was not implemented, then in accordance with the Housing Code, local authorities self-government and state authorities are responsible for holding open competitions to select management organizations to manage such a house.

If the owners of the premises have not made a decision on choosing a management method independently, then the government body is obliged to convene a meeting of the owners of the premises of the given building no later than 30 days before the expiration of the contract for the management of an apartment building, which was concluded based on the results of the competition, to decide question about choosing a way to manage this house.

If, before the expiration of the contract for the management of an apartment building concluded as a result of an open competition, the owners of the premises in this building have not chosen a method of managing it, or if a decision on choosing a method of managing the house was made, but was not implemented, the authorities are obliged to again hold an open competition.

You may be interested in preparing a legal opinion.

Choosing a management organization: is it always necessary to hold an open competition?

After putting an apartment building into operation, as a general rule, local governments must hold an open competition to select a management company for the right to perform the functions of managing the apartment building if the owners do not choose one themselves.
In practice, the question arose: is this a mandatory procedure in all cases or are there exceptions? And can the lack of technological connection to the networks of resource supply organizations affect the possibility of holding a competition to select a management company? Part 4 of Article 161 of the Housing Code of the Russian Federation establishes that a local government body, in the manner established by the Government of the Russian Federation, holds an open competition for the selection of a management organization if, within a year before the date of the said competition, the owners of premises in an apartment building have not chosen a method for managing this building or if the decision made to choose a method of managing this house was not implemented.

An open competition is also held if, before the expiration of the management agreement for an apartment building, concluded as a result of an open competition, a method of managing this building has not been chosen or if the decision made to choose a method of managing this building has not been implemented. According to Part 14 of Article 161 of the Housing Code of the Russian Federation, before concluding an agreement for the management of an apartment building between the developer and a management organization selected based on the results of an open competition, the management of the apartment building is carried out by the developer, subject to its compliance with the standards and rules for managing apartment buildings established in accordance with this article The Government of the Russian Federation, or the management organization with which the developer has entered into an agreement for the management of an apartment building no later than five days from the date of receipt of permission to put the apartment building into operation.

Thus, before holding an open competition for the selection of a management organization, the developer can enter into an agreement with a management organization, which will manage the apartment building until the owners choose at a general meeting another management organization, another form of management of the apartment building, for example, an HOA, or before the open competition.

Decision of the Arbitration Court of the city of St. Petersburg and the Leningrad Region in case No. A56-24463/2013. “As follows from the case materials, a case has been initiated against the Administration for violation of antimonopoly legislation on grounds of violation by the Administration of Article 15 of Federal Law dated July 26, 2006 N 135-FZ “On the Protection of Competition” (hereinafter referred to as Law N 135-FZ), which resulted in failure to an open competition to select a management organization for the right to manage an apartment building, based on the results of which a decision was made. According to the said decision, the Administration’s inaction on the issue of holding a competition for the selection of management organizations to manage apartment buildings put into operation after June 18, 2011 was recognized as a violation of Part 1 of Article 15 of Law No. 135-FZ. The Administration was issued an order, according to which the Administration was ordered to take measures to organize a competition for the management of apartment buildings. Having disagreed with the decision made, the Administration applied to the arbitration court to declare it invalid.

In accordance with Part 13 of Article 161 of the Housing Code of the Russian Federation (hereinafter referred to as the Housing Code of the Russian Federation) as amended in force at the time the contested decision was made and brought into force on 06/18/2011 by Federal Law of 06/04/2011 N 123-FZ, within ten working days from the date of issuance, in the manner established by the legislation on urban planning activities, of a permit to put into operation an apartment building, the local government body, in the manner established by the Government of the Russian Federation, holds, in accordance with Part 4 of Article 161 of the Housing Code of the Russian Federation, an open competition for the selection of a management organization to manage this building . Part 4 of Article 161 of the RF Housing Code, as amended at the time the contested decision was made, provides that a local government body, in the manner established by the Government of the Russian Federation, holds an open competition for the selection of a management organization if, within a year before the date of the said competition, the owners of premises in in an apartment building, the method of managing this house has not been chosen or if the decision made to choose the method of managing this house has not been implemented. An open competition is also held if, before the expiration of the management agreement for an apartment building, concluded as a result of an open competition, a method of managing this building has not been chosen or if the decision made to choose a method of managing this building has not been implemented. As follows from the case materials and is not disputed by the Administration, in the period after June 18, 2011, permits were issued for the commissioning of several multi-apartment residential buildings.

To substantiate its position that there is no legal basis for holding an open competition in relation to the above-mentioned multi-apartment residential buildings, the Administration points out that at the time of putting an apartment building into operation, such a house is the property of the developer, who independently enters into a management agreement for the multi-apartment residential building with a service organization and determines the serviced housing stock, which was done in relation to the named houses.

This argument of the Administration is subject to rejection due to the following. Part 14 of Article 161 of the Housing Code of the Russian Federation, as amended, was in force at the time the contested decision was made, stipulating that until the management of an apartment building is concluded between the developer and a management organization selected based on the results of an open competition held in accordance with Part 13 of this article, the management of the apartment building is carried out by the developer subject to its compliance with the standards and rules for managing apartment buildings, or the management organization with which the developer has entered into an agreement for the management of an apartment building, which is concluded no later than five days after receiving permission to put the apartment building into operation.

Thus, from the cumulative interpretation of parts 13, 14 of Article 161 of the Housing Code of the Russian Federation, it follows that the management of an apartment building by the developer himself or by a management organization with which the developer has entered into an agreement for the management of an apartment building is carried out only until the conclusion of an agreement between the developer and the management organization selected based on the results open competition.

At the same time, the reference norm contained in Part 13 of Article 161 of the RF Housing Code to Part 4 of the said article does not indicate that an open competition for the selection of a management organization should be carried out only in the cases provided for in Part 4 of Article 161 of the RF Housing Code. The said reference norm indicates that an open competition for the selection of a management organization, both in the cases provided for by Part 4 of Article 161 of the RF LC, and in the cases provided for by Part 13 of the said article, is carried out in the manner established by the Government of the Russian Federation.

This procedure is established by the Rules for holding an open competition by a local government body for the selection of a management organization to manage apartment buildings, approved by Decree of the Government of the Russian Federation dated 06.02.2006 N 75 (hereinafter referred to as the Rules for conducting an open competition).” Thus, under any circumstances, with the exception of the case where the owners held a general meeting and chose a way to manage an apartment building, the decision of the owners was actually fulfilled, local governments must hold an open competition to select a management organization. Otherwise, the owners, on the basis of Part 6 of Article 161 of the Housing Code of the Russian Federation, can go to court with a demand to oblige local governments to choose a management organization.

The second issue regarding holding an open competition for the selection of a management organization is the possibility of holding an open competition in the event that there is no technological connection to the networks of resource supply organizations, for example, due to the fault of the developer of an apartment building.

The decision of the Arbitration Court of the city of St. Petersburg and the Leningrad Region in case No. A56-24463/2013 and the Resolution of the Thirteenth Arbitration Court of Appeal in case No. A56-24463/2013. “The argument of the Administration, as well as third parties, that the lack of technological connection of apartment buildings, ensuring a constant supply of such houses with utilities, entails the impossibility of fulfilling contracts concluded with the management organization selected based on the results of an open competition, must also be rejected.

Neither the provisions of parts 4, 13, 14 of Article 161 of the Housing Code of the Russian Federation, nor the provisions of the Rules for an open competition make the holding of an open competition for the selection of a management organization dependent on the availability of concluded contracts for the energy supply of an apartment building. At the same time, subparagraph 5 of paragraph 41 of the Rules for an open competition also stipulates that the competition documentation approved by the competition organizer includes, among other things, a list of mandatory works and services established by the competition organizer depending on the level of improvement, design and technical parameters of the apartment building, including requirements for the volume, quality, frequency of each of such work and services.

In addition, by virtue of paragraph 14 of the Rules for the provision of utility services to owners and users of premises in apartment buildings and residential buildings, approved by Decree of the Government of the Russian Federation of May 6, 2011 N 354, the management organization selected in the manner established by the housing legislation of the Russian Federation to manage an apartment building, begins to provide utility services to consumers in an apartment building from the date specified in the decision of the general meeting of owners of premises in an apartment building on the selection of a management organization, or from the date of concluding a management agreement for an apartment building, including with a management organization selected by a local government body based on the results of open competition, but not earlier than the start date of supply of a communal resource under an agreement on the purchase of a communal resource concluded by the management organization with the resource supplying organization.

Thus, until the conclusion of an agreement with the resource supplying organization, the management organization selected by the local government body based on the results of an open competition is not deprived of the opportunity to provide other services and work for the maintenance of the common property of the owners of the premises of an apartment building in the manner determined by the Rules for the maintenance of common property in an apartment building, approved by Decree of the Government of the Russian Federation dated August 13, 2006 N 491, as well as the Rules and Standards for the technical operation of the housing stock, approved by Decree of the State Construction Committee of Russia dated September 27, 2003 N 170.

The arbitration court also notes that the fact that the external networks through which the technological connection of apartment buildings to the networks of resource-supplying organizations is carried out is owned by the developer cannot serve as an obstacle to concluding an agreement for the provision of utility services between the management organization, selected based on the results of an open competition, and the resource-supplying organization. since by virtue of paragraph 6 of the Rules for non-discriminatory access to services for the transmission of electrical energy and the provision of these services, approved by Decree of the Government of the Russian Federation of December 27, 2004 N 861, owners and other legal owners of electric grid facilities through which the grid organization is indirectly connected to the electric networks the consumer’s power receiving device does not have the right to prevent the flow of electrical energy through their facilities for such a consumer and demand payment for this.”

We can fully agree with the above court decision that the absence of any connections cannot be the basis for not holding an open tender and choosing a management company, since such a prohibition is not established by law, and also the owners of an apartment building should not be infringed on their rights to receive utilities services and proper maintenance of an apartment building. In such a position, in which the district administration should not hold an open competition, the developer and the management company are interested, which was actually put in charge of the apartment building by the developer of the house, for example, by concluding a management agreement with it according to the rules of the above part 14 of Article 161 of the Housing Code of the Russian Federation, which makes it possible, without holding a general meeting in an apartment building, to transfer management to such a company. This method is established by law and is, to some extent, a way out of the situation in which an apartment building is put into operation, many shareholders have not yet become owners, and therefore it is impossible to hold a general meeting of owners, and the need to manage the house appears immediately after it is put into operation. exploitation.

Source: Selecting a management company: is it always necessary to hold an open tender? (Kuzmak R.)

Grounds for holding an open competition

An open competition to select a management company to manage apartment buildings is held if:

• owners of premises in an apartment building did not choose a method of managing their home due to the fact that:

1. There was no meeting of residents on this issue.
2. The meeting was held and the residents' decision was made, but not implemented.
3. After 2 months from the date of entry into legal force of the court decision to declare the residents’ meeting invalid, a second meeting was not held or was held, but the decision was not made.

• The residents’ decision on how to manage the apartment building was not implemented due to the fact that:

1. The majority of apartment building residents did not enter into agreements under Art. 164 Housing Code of the Russian Federation.
2. The residents did not send to the relevant authority the documents required for state registration of a special consumer cooperative.
3. No management agreements have been concluded under Art. 162 Housing Code of the Russian Federation.
4. A new apartment building was built and permission to put it into operation was issued.