The owner of the apartment is obliged to bear the costs of its maintenance, including payment of utility bills and electricity, contributions for major repairs (Article 210 of the Civil Code of the Russian Federation). This obligation begins from the moment ownership rights arise, i.e. after its registration in the Unified State Register, unless it is proven that the opportunity to use the apartment arose earlier than this moment (Appeal ruling of the Nizhny Novgorod Regional Court dated August 18, 2015 N 33-8276/2015).
At the time of registration of the transfer of ownership, the seller shows the buyer a certificate from the management company of the apartment building stating that he has no debts to pay for utilities and electricity, but at the time the apartment is actually vacated, the seller may well have such debt. Since full settlement between the parties is usually made before the actual transfer of the apartment, the buyer will not be able to suspend payment until the seller pays his debts.
However, in such a situation, the buyer has no reason to worry, since his ownership right arises only after state registration of the transfer of ownership (clause 5, part 2, article 153 of the Housing Code of the Russian Federation). If after this date the seller does not immediately move out of the apartment, then the buyer will become obligated to maintain it only after the apartment is vacated. Until this time, the seller is responsible for all debts. The buyer is not obliged to pay debts for the apartment that were incurred by the former owners.
In this regard, the buyer has the right to demand exclusion from receipts of amounts that relate to the seller as the former owner (Determination of the Leningrad Regional Court dated August 14, 2013 N 33-3711/2013). If desired, the buyer can pay off the seller’s debts from his own funds and then present him with an invoice by way of recourse, but it is better not to do this, since it is possible that the seller will voluntarily refuse to reimburse the expenses and will have to go to court. At the same time, it is unknown whether the court’s decision will be implemented.
If the receipts for payment of electricity and utilities of the new owner continue to indicate the debts of the seller, and also penalties are accrued on these amounts, the first may, in court, demand that the corresponding debt be recognized as non-existent, since it is not he, but the seller, who is responsible for it.
General meeting of premises owners
Having purchased an apartment, the new owner must take into account such important issues as the management of an apartment building and its maintenance, which are decided by the owners of apartments in this building through participation in the general meeting, which is the governing body of the building (Article 44 of the Housing Code of the Russian Federation). This problem is especially acute in new buildings, where most of the apartments are owned by the developer, who, taking into account the number of votes he owns, selects an affiliated or formally independent management company that provides additional services for which tariffs are not established.
The owner of the apartment must challenge all the costs imposed on him for the maintenance of common property, proving many circumstances: the absence of the need to incur certain costs, their approval by the meeting (Appeal ruling of the Moscow City Court dated 09/04/2014 N 33-34194); discrepancy between the fees charged and real costs (Appeal ruling of the Altai Regional Court dated September 10, 2014 N 33-7266/2014), etc.
If the apartment does not have energy meters, in all cases of long-term absence the owner should submit a corresponding application to the management company in order to recalculate payments, since otherwise he is obliged to pay expenses in full without taking into account the time of his absence from the residential premises (clause 11 Article 155 of the Housing Code of the Russian Federation, Appeal ruling of the Nizhny Novgorod Regional Court dated December 22, 2015 No. 33-13605/2015).
The general meeting of premises owners, in particular, makes decisions on the reconstruction of an apartment building, major repairs, the choice of a method of managing the house, the installation and operation of advertising structures, if this requires the use of the common property of the house, etc. All owners can participate in the meeting; at the same time, the number of votes belonging to them is proportional to the share in the ownership of common property in the house (clause 3 of article 48 of the Housing Code of the Russian Federation).
The meeting can be held through in-person voting (the joint presence of the owners of premises in a given building to discuss issues on the agenda and make decisions on those put to vote), absentee voting (by poll or using the state information system for housing and communal services) or in-person and absentee voting (Article 44.1 of the RF Housing Code). The general meeting of premises owners is considered valid if more than 50% of the owners of an apartment building have registered to participate in it. All decisions made at a meeting, which was held in compliance with the established procedure, on issues included in the agenda, are binding on all owners of the relevant house, including those who did not take part in the meeting, as well as for those who although and participated, but voted against such decisions (clause 5 of article 46 of the RF Housing Code, clause 2 of article 181.1 of the Civil Code of the Russian Federation). If these citizens were provided with the opportunity to participate in the meeting, then it is considered that their opinion was taken into account (Appeal ruling of the St. Petersburg City Court dated October 15, 2015 N 33-18199/2015).
Litigation practice
Often, owners of apartments in an apartment building go to court to protect their rights, considering them to be violated. Currently, certain stable criteria have been developed in judicial practice, against which in each specific case and taking into account all the circumstances of the case, the courts check the decisions made by the meeting.
In paragraph 6 of Art. 46 of the Housing Code of the Russian Federation provides that the owner of premises in an apartment building has the right to appeal to the court a decision made by a general meeting in violation of the requirements of the Housing Code of the Russian Federation, if he did not take part in this meeting or voted against such a decision and it violated his rights and legal interests. An application for such an appeal may be filed with the court within six months from the day when the specified owner learned or should have learned about the decision.
Taking into account all the circumstances of the case, the court has the right to uphold the appealed decision if the owner’s vote could not influence the voting results, the violations committed are not significant and the decision made did not entail losses to the said owner. When resolving a dispute on the claim of an apartment owner who disagrees with the decision of the general meeting, the court must determine the degree of influence of the plaintiff on the decision-making (the ratio of the number of votes belonging to him and the total number of votes of all owners who took part in the meeting) and the nature of violations committed during the meeting, if any. took place.
As a rule, the greatest indignation of apartment owners who go to court is caused by cases where they are charged with the costs associated with maintaining an apartment building. If certain expenses are approved at the meeting that do not suit individual owners, this circumstance in itself is not a basis for releasing them from the obligation to bear the corresponding expenses.
The disagreement of the minority with the will of the majority of owners cannot serve as a reason or basis for declaring the decision invalid, since this is not provided for by the current legislation (Cassation ruling of the Volgograd Regional Court dated August 25, 2011 N 33-11305/11). Making a decision to approve these expenses is enough to create an obligation for apartment owners to repay them, regardless of whether they agree with this state of affairs or not.
The obligation of the owner in an apartment building to bear the costs of maintaining the premises belonging to him, as well as to participate in the costs of maintaining the common property in this house in proportion to his share in the right of common ownership of this property by paying a fee for the maintenance, and repair of the residential premises, applies to all owners of the premises in this house from the moment ownership rights arise by force of law (Article 39 of the Housing Code of the Russian Federation).
The procedure for determining the amount of the mentioned mandatory payments is established depending on the chosen method of managing an apartment building, but in any case, in the law (clause 4, part 2, article 145, part 7, article 156 of the Housing Code of the Russian Federation), this is within the competence of the general meeting of residential owners premises or members of a homeowners association or other specialized housing cooperative, and therefore is mandatory for all, without exception, owners of residential premises in this building.
In addition, the current legislation of the Russian Federation does not provide for the need to agree with each owner of premises in an apartment building the costs of its maintenance. Thus, in one of the court cases it was established that one of the owners of premises in an apartment building had a debt due to non-payment of maintenance and routine repair services (garbage removal, maintenance of intercoms, video surveillance of the intra-building territory, maintenance of heating and hot water supply systems, banking services, HOA staff salaries, etc.). These services are necessary for the maintenance of an apartment building, and according to Art. 154 of the Housing Code of the Russian Federation, the costs for them are included in the fee for the maintenance and repair of the common property of such a house and are subject to payment by the owners of the premises. The amount of these expenses was approved by decisions of general meetings of HOA members, which were not challenged or declared invalid, and therefore the court did not find any grounds for releasing the defendant from bearing them.
The court did not take into account the arguments of the apartment owner who disagreed with the expenses that he does not use the services of a concierge, video surveillance and intercom, and therefore should not pay for them, since based on the provisions of the law on the mandatory decision of the general meeting and the absence of other decisions, he such duty is not relieved. In satisfying the claims, the court of first instance rightfully proceeded from the fact that the defendant, being the owner of residential premises in an apartment building in which the management method (HOA) was chosen, must pay mandatory expenses in the amount established by the decision of the general meeting of HOA members (Appeal ruling of the Tomsk Regional court dated January 29, 2013 N 33-240/2013).
In another proceeding, the court also imposed on the plaintiff the obligation to bear the costs approved by the general meeting of the owners of the premises, which he unsuccessfully tried to challenge. From the materials of this case it follows that the meeting decided to implement three targeted programs, including the repair of walls, ceilings and floors in the entrances, the installation of lawn fencing, a video surveillance system and recording of the perimeter of the local area and entrances to the entrances.
The court noted that the decisions made at the general meeting and regulating the payment of housing and communal services are equally binding on all homeowners. Owners of premises in an apartment building are not deprived of the opportunity at a general meeting, within the limits provided for by current legislation, to determine a different procedure for calculating fees for utilities, including heating, and collecting funds for the implementation of targeted programs (Determination of the St. Petersburg City Court dated 02.04. 2013 N 33-4521/2013).
"Substantial violations"
If at a meeting of homeowners there were violations of the procedure when making decisions, the apartment owner who disagrees with the relevant decision has a chance to overturn it in court. In paragraph 6 of Art. 46 of the RF Housing Code establishes that when considering a dispute brought by a dissenting owner of premises in an apartment building, the court has the right to uphold the decision of the meeting if the violations committed are not significant. Meanwhile, the law does not explain what is meant by a “significant violation”.
From the analysis of judicial practice, we can conclude that we are talking about violations that do not allow us to clearly determine the quorum of the meeting, the actual expression of the will of the apartment owners who took part in it, the number of votes held by the persons who took part in the general meeting; making decisions on issues not included in the agenda of the meeting and in the text of the notice of its holding (Appeal ruling of the St. Petersburg City Court dated June 21, 2012 N 33-8052/2012), etc.
Thus, the court ruled that the decisions of the owners of the premises on issues put to vote did not comply with the provisions of Part 3 of Art. 47 of the Housing Code of the Russian Federation, according to which the owner’s decision must indicate information about the person participating in the vote, about the document that confirms the ownership right of the person participating in the vote to the premises in the corresponding apartment building, resolutions on each issue on the agenda.
From the materials of the case it followed that the decisions of the meeting indicated numbers of certificates of state registration of rights that did not coincide with the numbers on the certificate forms; the shares owned by the persons who took part in the voting were not indicated; information about the area of the residential premises recorded in the decision did not coincide with those indicated in the certificate of registration of rights; the numbers of purchase and sale agreements reflected in the decision also did not coincide with those indicated in the certificate of ownership; the solutions contained corrections. Under such circumstances, the court came to the conclusion that the decisions taken by the meeting were subject to cancellation (Appeal ruling of the Moscow City Court dated April 22, 2013 No. 11-9865/2013).
When the general meeting of owners of premises in an apartment building did not have a quorum, an absentee vote can be held, in which an absentee decision is received from each owner, in which he expresses his opinion on the issues included in the agenda. When drawing up a decision in absentia, apartment owners often make various mistakes and inaccuracies, in particular, they incorrectly indicate the area of the apartment they own, details of title documents, etc. The court is unlikely to consider such shortcomings significant, since in this case the decisions in absentia are drawn up by the owners themselves, and the uncertainty that arises in the information can be eliminated by comparing them with the information and documents available to the HOA (Determination of the Sverdlovsk Regional Court dated March 19, 2013 N 33 -3320/2013).
Such omissions and shortcomings, such as, for example, failure to indicate in the minutes of the meeting the names and initials of persons whose powers as members of the audit commission are terminated when considering the issue of terminating the powers of the previous audit commission and appointing a new one, are not significant if this does not affect the legality of the decision ( Appeal ruling of the St. Petersburg City Court dated 06/04/2013 N 7737).
It will also not be a significant violation to incorrectly indicate the votes of apartment owners due to incorrect counting. This circumstance is not a basis for the complete exclusion of the relevant votes; they are subject to recount in proportion to the area of the residential premises owned by them. The case is resolved in a similar way in a situation where an absentee decision or voting ballot is signed by one of the co-owners of the apartment, since only the votes belonging to him are taken into account in proportion to his share of the area (Determination of the Sverdlovsk Regional Court dated January 29, 2013 N 33-919/2013) .
Despite the fact that in Part 6 of Art. 46 of the Housing Code of the Russian Federation establishes the right of the court to uphold the appealed decision if the vote of the dissenting owner could not influence the voting results, the violations committed are not significant and the decision made did not entail causing losses to the specified owner; in judicial practice there is a position according to which for refusal At least one of the above grounds is sufficient in the claim.
When considering one of the cases, the court noted that since the participation of the plaintiff could not influence the contested decisions, including on the issue of establishing a tariff for the maintenance of housing, for which all other participants of the meeting voted unanimously, then the failure of the plaintiff to notify the general meeting of members of the partnership is also not a significant violation. In addition, when resolving the dispute, the court took into account the behavior of the plaintiff himself, who, although he challenged the decisions, still made payments in accordance with the contested decisions of the meeting (Determination of the Sverdlovsk Regional Court dated 03/07/2013 N 33-1062/2013).
As follows from Part 4 of Art. 45 of the Housing Code of the Russian Federation, the owner, on whose initiative a general meeting of owners of premises in an apartment building is convened, is obliged to inform these owners about the holding of such a meeting no later than 10 days before the date of its holding. Within the specified period, the said message must be sent to each owner of the premises in this house by registered mail, unless the decision of the general meeting provides for another way of sending this message in writing, or handed to each owner against signature or placed in the premises of this house, determined by such a decision and accessible for all owners.
When assessing the sufficiency and reasonableness of the actions of the initiators of the meeting, the court takes into account what measures they took to respect the rights of apartment owners. Proving the fact of placing information on the appropriate stands at the entrances to the entrances of an apartment building is allowed, among other things, by witness testimony (Appeal ruling of the Tver Regional Court dated 09/04/2012 N 33-3298).
From the materials of the court case, it follows that the owners of the premises were notified of the meeting in several ways at once: by visiting the apartments and handing over materials for the meeting in person against signature; sending registered letters by mail; repeatedly posting notices about the meeting on the entrance doors of the building; placing meeting materials in mailboxes.
Of the 288 owners of premises in the building, materials for the meeting were personally handed to 218 owners, sent by registered letters to 9 owners, dropped into the mailboxes of 55 apartments, and 6 deceased owners did not have their shares registered. Advertisements were posted at all entrances four times. According to the court, the initiators of the meeting conscientiously, prudently and expediently resolved the issue of the procedure for notifying owners about the upcoming meeting. The voting results also support this fact: the owners of more than 83% of the premises of the house took part in the meeting, the number of completed and received voting ballots on time was 224 out of 288. 78% of the owners were notified by signature and only 15% received documents through mailboxes .
In the case materials there were acts confirming the repeated placement of notices on the doors of the building's entrances with information about the results of voting at a general meeting held in absentia. Consequently, the duty of the initiator of the meeting, which consisted in bringing the voting results to the attention of the owners, by placing them in the premises of the house accessible to all owners, was fulfilled in full.
In addition, the court noted, apartment owners who disagreed with the decisions made at the meeting were not deprived of the opportunity to independently exercise the right to familiarize themselves with the results of the meeting, however, they did not show the due degree of care and prudence, therefore the decisions approved at the meeting became binding on them ( Appeal ruling of the Vladimir Regional Court dated July 12, 2012 N 33-1974/2012).
ARGUMENTS that should be given in a claim to declare a meeting invalid, decisions of the meetinginvalid
CONCLUSION ONE:
The procedure for notifying owners about the upcoming meeting was violated ,
By virtue of the imperative requirement of the law, the owner, on whose initiative a general meeting is convened, is obliged to inform the owners in this house about the general meeting no later than ten days before it is held. In this case, the message must be sent to each owner by registered mail, or handed over against signature.
However, in violation of the requirements established by Part 4 of Art. 45 of the Housing Code of the Russian Federation, the Company did not send messages to the owners by mail about the planned holding of the general meeting in absentia. In addition, the messages were not handed over to each owner against signature.
In the event that the Company offers its explanation for the notification by placing an announcement in the entrance or on stands, such an option should be recognized as illegal, since by virtue of Part 4 of Art. 45 of the Housing Code of the Russian Federation, this method is permissible only if the owners at the general meeting approved the appropriate notification procedure and determined the premises for posting announcements. At the same time, the owners have never before made a decision on such a notification procedure at a general meeting; there is no minutes of the general meeting on this issue.
CONCLUSION TWO:
The procedure for choosing the form of holding the meeting was violated - not the owners!
In violation of Part 4, 5 Art. 45 of the Housing Code of the Russian Federation, the form of holding a general meeting and the agenda of the meeting were determined not by the owner of the premises, but by the Company, which did not have the right to do so. By virtue of these provisions of the law, such rights are vested exclusively in the owner of the premises in the house. From the documents presented by the Company it follows that it was the Company, on its own initiative, that determined the form of holding the meeting in absentia, as well as the agenda of this meeting. Such actions of the Company are contrary to the law.
CONCLUSION THREE:
Requirements for specifying the end date for making decisions were violated
The content of the notice of the general meeting does not comply with the requirements of Part 5 of Art. 45 Housing Code of the Russian Federation. In accordance with clause 3, part 5, art. 45 of the Housing Code of the Russian Federation, the notice of holding a general meeting in the form of absentee voting must indicate the end date for receiving decisions of owners on issues put to vote and the place or address where such decisions should be transferred. In accordance with paragraph 7 of paragraph 4 of the Methodological Recommendations for the preparation and holding of general meetings of owners of premises in an apartment building, approved by order of the Department of Housing Policy and Housing Fund of the City of Moscow dated August 23, 2005 N 393, the closing date for accepting decisions of owners should be understood as the day month, year and time. By virtue of Part 2 of Art. 47 of the Housing Code of the Russian Federation, establishing the closing date for the reception of decisions of owners is essential for absentee voting, since those owners whose decisions were received before the closing date for their receipt are considered to have taken part in such a meeting. Therefore, decisions of owners received after the voting closing date should not be taken into account when counting votes. The announcement and voting ballots do not indicate the closing date for the adoption of decisions by the owners, which makes it impossible to calculate the quorum of the general meeting.
An indication in announcements of the period of the meeting cannot be regarded as an indication of the deadline for accepting decisions of the owners.
CONCLUSION FOUR
The notice of a general meeting must contain information about the procedure for familiarizing yourself with the information and (or) materials that will be presented at this meeting, and the place or address where they can be viewed. The advertisement posted by the Company does not contain such information. Thus, the lack of information about sending each owner a notice of the general meeting and voting ballots indicates that during the meeting, equal conditions were not created for each owner to exercise the right to vote.
CONCLUSION FIFTH
The decision adopted in the minutes is stated as follows: Select DS Exploitation LLC as the management organization and conclude a management and maintenance agreement for 2011 with DS Exploitation LLC for each owner of premises in apartment building N * * *. However, the issue of concluding a management agreement was absent both from the agenda indicated in the announcements and from the voting ballots. According to Part 2 of Art. 46 of the RF Housing Code, the general meeting of owners does not have the right to make decisions on issues not included in the agenda of this meeting, or to change the agenda of this meeting. Since the announcement of the meeting did not include the issue of concluding a management agreement on the agenda, the voting ballots also did not contain a question with this wording, and the owners did not vote for concluding a management agreement with the Company, therefore, the members of the counting commission actually falsified the protocol in this part.
ARGUMENT Six
Minutes of the general meeting No. 1/8 of April 15, 2011 were drawn up in violation of Part 3 of Art. 45 and part 1, 2 art. 46 Housing Code of the Russian Federation. The protocol is certified by the seal of the Company and signed by the employees of the Company V.T., Yu., N.A., as members of the counting commission, and by the General Director of Shch.
The protocol does not contain a single signature of the owner of the premises in the house. By virtue of Part 1 of Art. 46 of the Housing Code of the Russian Federation, decisions of the general meeting of owners are documented in protocols in the manner established by the general meeting of owners of premises in a given building.
The protocol is a document reflecting decisions made by the owners, which excludes the signing of this document by other persons who are not the owners, unless the owners, by their decision, established such a procedure for drawing up the protocol. There is no evidence that the owners accepted such a procedure for drawing up the protocol.
The decision of the owners to elect the above-mentioned persons as members of the counting commission gives these persons the right to only count the votes. No decision was made on the right of these persons to sign the minutes of the general meeting of owners on behalf of the owners.
ARGUMENT SEVEN
The quorum of the meeting was determined in violation of Part 3 of Art. 45 and part 3 of Art. 48 Housing Code of the Russian Federation. The meeting was not valid because there was no quorum
i)from the minutes of April 15, 2011 it follows that the quorum is determined not by the number of votes belonging to each owner and determined in proportion to the share of each owner in the right of common ownership of common property in the house, but by the number of owners of premises in the house, which is illegal;
ii)individual decisions of the owners are invalid, the votes in the ballots were counted incorrectly, the area of the owners' premises is overestimated, which leads to an unreasonable increase in the number of votes belonging to one owner;
iii)the summary statement of calculation of shares with an explanatory note dated February 2, 2012 is unreliable evidence, since it contradicts the evidence available in the case.
The stated circumstances indicate that violations in the procedure for organizing and holding a general meeting in absentia are significant. If there are such violations, the general meeting of owners cannot be considered valid, therefore, the decisions made at it are invalid and illegal. The above violations were established earlier as a result of an inspection conducted by the prosecutor's office of the Central Administrative District of Moscow, information about which was presented in the case.
Thus, as a result of the Company’s illegal actions, the plaintiff’s rights to choose the method of managing an apartment building in the manner prescribed by housing legislation were violated.
Judge Guseva O.G.
Case 33-3179
APPEAL DECISION
Judicial panel for civil cases of the Moscow City Court, composed of presiding Lukyanov I.E.,
judges Zakharova E.A., Lemagina I.B.,
with the secretary _.. L.I., _.. L.O.,
Having heard in open court the report of Judge E.A. Zakharova. case on the appeal of Matveev M.Yu. on the decision of the Ostankino District Court of Moscow dated _. city, which decided:
in satisfying the claims of Matveev M.Yu. to CJSC "City-XXI Century", LLC
"Tehstroy" on invalidating the decision of the extraordinary general meeting
owners of premises, minutes of the extraordinary general meeting of owners
premises - refuse.
installed:
Matveev M.Yu. filed a lawsuit against the defendants to invalidate the decision of the extraordinary general meeting of owners of premises in an apartment building at the address:_.., drawn up by the minutes of the extraordinary general meeting dated _.., held in the form of absentee voting, and the Protocol, citing the fact that that there was no quorum, the indicated decision of the general meeting of owners violated his rights and legitimate interests, the decision of the general meeting of owners in composition and content does not comply with the law, violates his rights and interests.
Plaintiff Matveev M.Yu. - did not appear at the court hearing, sent a representative to the court.
Representative of the plaintiff _.. A.V. At the court hearing, he supported the stated claims.
Representatives of the defendants CJSC "City - XXI Century" _.. A.V., LLC "Tehstroy"
BUT. At the court hearing, the claim was not recognized; it was pointed out that the convening procedure had not been violated, there was a quorum, the rights of the plaintiff were not violated, and his vote would not have influenced the voting results.
The court made the above decision, the cancellation of which, based on the arguments of the appeal, M.Yu. Matveev asks.
Having checked the case materials, the arguments of the complaint, and listened to the representative of Matveev M.Yu. _.. A.V., who supported the arguments of the complaint, objections of representatives of CJSC "City - XXI Century" _. A.V., Tekhstroy LLC __. M.R., the panel cannot agree with the court’s decision, since the court incorrectly applied the norms of substantive law when resolving the dispute.
Resolving the stated requirements, the court came to the conclusion that CJSC "City - XXI Century", on whose initiative the meeting of owners was held, the requirements of the law were not violated when organizing and holding the meeting, the necessary quorum was present at the meeting, significant violations that would entail the invalidation of the decisions taken at the meeting was not allowed, the rights of the plaintiff were not violated, and his vote could not have influenced the voting results.
The panel cannot agree with the court's decision.
In accordance with Art. 44 of the Housing Code of the Russian Federation, the general meeting of owners of premises in an apartment building is the management body of the apartment building.
The competence of the general meeting of owners of premises in an apartment building includes:
1) making decisions on the reconstruction of an apartment building (including its expansion or superstructure), construction of outbuildings and other buildings, structures, structures, major repairs of common property in an apartment building;
2) making decisions on the limits of use of the land plot on which the apartment building is located, including the introduction of restrictions on its use;
3) making decisions on the use of the common property of the owners of premises in an apartment building by other persons, including the conclusion of contracts for the installation and operation of advertising structures, if for their installation and operation it is intended to use the common property of the owners of premises in an apartment building;
3.1) making decisions on identifying persons who, on behalf of the owners of premises in an apartment building, are authorized to conclude agreements on the use of the common property of the owners of premises in an apartment building (including agreements for the installation and operation of advertising structures) on the terms determined by the decision of the general meeting;
4) choosing a method of managing an apartment building;
4.1) making decisions on current repairs of common property in an apartment building;
5) other issues related this Code to the competence of general
meetings of owners of premises in an apartment building.
Article 45 of the RF Housing Code provides for the procedure for holding a general meeting of owners of premises in an apartment building, according to which the owners of premises in an apartment building are obliged to annually hold an annual general meeting of owners of premises in an apartment building. The timing and procedure for holding the annual general meeting of owners of premises in an apartment building, as well as the procedure for notifying about decisions made by it, are established by the general meeting of owners of premises in an apartment building.
General meetings of owners of premises in an apartment building held in addition to the annual general meeting are extraordinary. An extraordinary general meeting of owners of premises in an apartment building may be convened at the initiative of any of these owners.
The general meeting of owners of premises in an apartment building is valid (has a quorum) if the owners of premises in this building or their representatives with more than fifty percent of the votes of the total number of votes took part in it. If there is no quorum for holding an annual general meeting of owners of premises in an apartment building, a repeat general meeting of owners of premises in an apartment building must be held.
The owner, on whose initiative a general meeting of owners of premises in an apartment building is convened, is obliged to inform the owners of premises in this building about the holding of such a meeting no later than ten days before the date of its holding. Within the specified period, a message about holding a general meeting of owners of premises in an apartment building must be sent to each owner of the premises in this building by registered mail, unless the decision of the general meeting of owners of premises in this building provides for another way of sending this message in writing, or delivered to each owner of the premises in this house under signature or placed in the premises of this house, determined by such a decision and accessible to all owners of premises in this house.
The notice of holding a general meeting of owners of premises in an apartment building must indicate:
1) information about the person on whose initiative this meeting is convened;
2) the form of holding this meeting (meeting or absentee voting);
3) the date, place, time of holding this meeting or, in the case of holding this meeting in the form of absentee voting, the closing date for accepting decisions of owners on issues put to vote, and the place or address where such decisions should be transferred;
4) the agenda of this meeting;
5) the procedure for familiarizing yourself with information and (or) materials that will be
presented at this meeting, and the place or address where they can be viewed.
By virtue of Art. 46 of the Housing Code of the Russian Federation, decisions of the general meeting of owners of premises in an apartment building on issues put to vote are adopted by a majority vote of the total number of votes of owners of premises in an apartment building participating in this meeting, with the exception of those provided for paragraphs 1 - 3 of part 2 of article 44 of this Code, decisions that are made by a majority of at least 2/3 of the total number of votes of the owners of premises in an apartment building. Decisions of the general meeting of owners of premises in an apartment building are documented in minutes in the manner established by the general meeting of owners of premises in a given building. The general meeting of owners of premises in an apartment building does not have the right to make decisions on issues not included in the agenda of this meeting, or to change the agenda of this meeting. Decisions made by the general meeting of owners of premises in an apartment building, as well as the voting results, are brought to the attention of the owners of premises in this building by the owner, on whose initiative such a meeting was convened, by posting a corresponding message about this in the premises of this building, determined by the decision of the general meeting of owners of premises in this house and accessible to all owners of premises in this house, no later than ten days from the date of adoption of these decisions. Minutes of general meetings of owners of premises in an apartment building and decisions of such owners on issues put to vote are stored in the place or address determined by the decision of this meeting.
The owner’s decision on issues put to vote must indicate:
2) information about the document confirming the ownership of the person participating in the vote to the premises in the corresponding apartment building;
3) decisions on each item on the agenda, expressed in terms of “for”, “against” or “abstained”.
According to Art. 48 of the Housing Code of the Russian Federation, the right to vote at a general meeting of owners of premises in an apartment building on issues put to vote belongs to the owners of premises in this building. Voting at a general meeting of owners of premises in an apartment building is carried out by the owner of the premises in this building, both personally and through his representative. The power of attorney for voting must contain information about the represented owner of the premises in the corresponding apartment building and his representative (name or designation, place of residence or location, passport details) and must be drawn up in accordance with the requirements of paragraphs 4 and 5 of Article 185 of the Civil Code of the Russian Federation or notarized. The number of tolos that each owner of a premises in an apartment building has at a general meeting of owners of premises in a given building is proportional to his share in the right of common ownership of the common property in that building. Voting on issues on the agenda of the general meeting of owners of premises in an apartment building, held in the form of absentee voting, is carried out only through written decisions of the owners on the issues put to vote. When voting is carried out through written decisions of the owners on issues put to vote, votes are counted on issues for which the owner participating in the vote has left only one of the possible voting options. These decisions drawn up in violation of this requirement are declared invalid, and votes on the issues contained in them are not counted. If the owner's decision on issues put to vote contains several issues put to vote, failure to comply with this requirement in relation to one or more issues does not entail invalidation of the said decision as a whole.
According to Art. 44 of the Housing Code of the Russian Federation, the general meeting of owners of premises in an apartment building is the management body of the apartment building. The competence of this meeting includes, among other things, the choice of method of managing an apartment building.
In accordance with Part 5 of Art. 46 of the Housing Code of the Russian Federation, the decision of the general meeting of owners of premises in an apartment building, adopted in the prescribed manner this code procedure, on issues within the competence of such a meeting, is mandatory for all owners of premises in an apartment building, including those owners who did not participate in the vote.
The owner of premises in an apartment building has the right to appeal to the court a decision made by the general meeting of owners of premises in this building in violation of the requirements of this code, in the event that he did not take part in this meeting or voted against such a decision and if such a decision violated his rights and legitimate interests. An application for such an appeal may be filed with the court within six months from the day when the specified owner learned or should have learned about the decision. The court, taking into account all the circumstances of the case, has the right to uphold the appealed decision if the vote of the specified owner could not influence the voting results, the violations committed are not significant and the decision made did not entail causing losses to the specified owner (Part 6 of Article 46 of the Housing Code of the Russian Federation) .
From the case materials it appears that Matveev M.Yu. is the owner of non-residential premises - parking spaces N _.. and N _. in the said apartment building.
Tekhstroy LLC, on the basis of a contract for the management and provision of technical services dated _.. year and additional agreements thereto, manages the house at the address: _. .
CJSC "City - XXI Century" is the owner of shares in the ownership of premises at the address: _. , and on his initiative, an extraordinary general meeting of premises owners was scheduled to be held in the form of joint presence on _. g., which did not take place due to lack of quorum.
Since _. by _. On the initiative of CJSC City - XXI Century, an absentee meeting of the owners of premises in an apartment building was held, the decisions of which were documented in a protocol dated _. G.
From the materials presented by the defendant, the minutes of the meeting dated _. It follows that the total area of the apartment building is _.. sq.m. Total received _. decisions of the owners, of which _ decisions were recognized as valid. When holding the meeting, the organizers proceeded from the fact that there was a quorum for holding the meeting, since only the owners of premises whose rights are registered in accordance with the procedure established by law and the area of the premises, the ownership of which is not registered (_. sq.m.) can take part in voting. , is subject to exclusion when calculating quorum.
From the vote counting table presented by the defendant CJSC City - XXI Century, it follows that the voting owners have _ sq.m. areas, thus, the meeting was legal, in the opinion of the defendants, since _. : (_.-_.) X _. =_%, which exceeds those required for quorum by law _. % of votes.
The court agreed with this calculation, but it is not based on the law, since within the meaning of Art. 37 of the Housing Code of the Russian Federation, the share in the right of common ownership of common property in an apartment building of the owner of the premises in this building is proportional to the size of the total area of the specified premises, and when determining the quorum of the meeting it was necessary to take into account the total area of the premises of the apartment building, including the area of the premises, on whose ownership has not been registered. Taking this into account, the number of votes of persons participating in the meeting, documented in the minutes of _, according to the information provided by the defendants, amounted to _. % (_.: _. x _.), which is less than the legally established number of votes required for the competence of the general meeting of owners.
In addition, the board cannot agree with the position of the defendants that when counting votes, information about the owners of the premises was checked, their shares were determined taking into account the information in the Unified State Register.
The panel recognizes as justified the plaintiff's arguments that information about the owners when checking voting decisions was not checked properly, since from the copy of the certificate of ownership of the apartment presented by CJSC "City - XXI Century" _. in the indicated house it follows that _. share of apartment, total area _. sq.m., owned by M.S. Yanina, date of issue of the certificate _. g., whereas according to the information contained in the extract from the Unified State Register it follows that from _.. g. the apartment is in equal ownership by _. share in Yanina A.V., Yanina V.A. and Yanina M.S. The review and table provided by City - XXI Century CJSC indicate that the owner of the apartment is _. % is Yanin V.A., in the voting decision his share is _. % (_. : .._,_ x _), which does not correspond to information from the Unified State Register, that is, the actual share of Yanin V.A. (_.%) when calculating the quorum by the defendant, it was overestimated three times.
The panel recognizes as justified the plaintiff's argument that the defendant City - XXI Century CJSC overstated the share of City - XXI Century CJSC in the common property, since from the voting decision of City - XXI Century CJSC it follows that the CJSC belongs to _., 8 sq.m of premises, and it is stated that this amounts to _. %, whereas even when calculating the share as a percentage, taking into account the methodology chosen by the defendant, _., 8 sq.m.: (_.-_. sq.m.) x _.% = _%. Taking into account the procedure for calculating the share established by Art. 37 of the Housing Code of the Russian Federation, the share of City - XXI Century CJSC is _., 8 sq.m: _. sq.m x _. % = _%. Thus, when voting, the defendant overestimated the share of City - XXI Century CJSC in the right of common ownership of common property by _.%.
These circumstances affect the correctness of determining the shares of owners, the correctness of calculating the quorum during the meeting, and _. % and _.. % need to be reduced _. %, that is, the quorum at the meeting did not exceed _. %, that is, the meeting was unauthorized, which is the basis for the conclusion that the decisions made at it were null and void.
The board cannot recognize as justified the objections of City - XXI Century CJSC to the appeal that when calculating the quorum, the defendant took into account erroneous information about apartments _. , _., _, whereas taking into account a different methodology during recalculation, the shares could have been increased, in general, by _. %, since, for example, the premises are registered in the name of one of the spouses, but by virtue of the law it is the common joint property of the spouses, which affects the right to vote both with their share and the share of the spouse.
When checking a court decision, the panel takes into account those circumstances, evidence and objections that were presented to the court of first instance and examined by it when considering the case. The calculation method and information on the procedure for counting votes are contained in the defendants' responses submitted to the trial court; in the responses they indicate that the competence of the meeting was determined by them taking into account the information and evidence presented to the trial court.
The panel cannot agree with the court’s conclusion that the plaintiff was notified of the meeting, since from the information presented in the case materials it follows that M.Yu. a notice of the meeting with the proposed agenda was not sent, contrary to the statement of the defendant ZAO City - XXI Century; the submitted lists of postal items do not contain such information. Matveev M.Yu. did not take part in the meeting.
In rejecting the claim, the court proceeded from the fact that the plaintiff’s vote could not influence the results of voting on the agenda items, since his share constitutes __% of the share in the right of common shared ownership of common property in an apartment building; there were no significant violations during the meeting.
The panel cannot recognize this conclusion as justified, since from the content of the statement of claim of Matveev Yu.M. it follows that he challenges the decisions of the meeting both on the grounds of contestability and on the grounds of nullity.
In accordance with Art. 181.3 of the Civil Code of the Russian Federation, the decision of the meeting is invalid on the grounds established this Code or other laws, due to its recognition as such by the court (voidable decision) or regardless of such recognition (void decision).
An invalid decision of a meeting is contestable unless it follows from the law that the decision is void.
In accordance with Art. 181.4 of the Civil Code of the Russian Federation on the contestability of decisions of meetings, a decision of a meeting may be declared invalid by the court if the requirements of the law are violated, including if:
1) there has been a significant violation of the procedure for convening, preparing and holding a meeting, affecting the expression of will of the meeting participants;
2) the person speaking on behalf of the meeting participant did not have authority;
3) there was a violation of the equality of rights of participants in the meeting during its holding;
4) there has been a significant violation of the rules for drawing up a protocol, including the rules on the written form of the protocol (clause 3 of Article 181.2).
A decision of a meeting cannot be declared invalid by a court on grounds related to a violation of the procedure for making a decision if it is confirmed by a decision of a subsequent meeting adopted in the prescribed manner before the court’s decision.
The decision of the meeting has the right to be challenged in court by a participant in the relevant civil law community who did not take part in the meeting or voted against the adoption of the contested decision.
The decision of the meeting cannot be declared invalid by the court if the vote of the person whose rights are affected by the contested decision could not influence its adoption and the decision of the meeting does not entail significant adverse consequences for this person.
The decision of the meeting can be challenged in court within six months from the day when the person whose rights were violated by the decision learned or should have known about it, but no later than within two years from the day when information about the decision became publicly available to members of the relevant civil law community.
A person challenging a decision of a meeting must notify in writing in advance the participants of the relevant civil law community of his intention to file such a claim in court and provide them with other information relevant to the case. Participants of the relevant civil law community who have not joined such a claim in the manner established by procedural legislation, including those who have other grounds for challenging this decision, subsequently do not have the right to apply to the court with demands to challenge this decision, unless the court recognizes the reasons for this appeal are valid.
A contestable decision of a meeting, declared invalid by a court, is invalid from the moment of its adoption.
In accordance with Art. 181.5 of the Civil Code of the Russian Federation, unless otherwise provided by law, the decision of the meeting is void if it:
1) adopted on an issue not included in the agenda, except if all participants of the relevant civil law community took part in the meeting;
2) adopted in the absence of the required quorum;
3) adopted on an issue not within the competence of the meeting;
4) contradicts the basics of law and order or morality.
Within the meaning of Art. 181.5 of the Civil Code of the Russian Federation, the absence of the required quorum entails the nullity of the meeting, regardless of whether the plaintiff could influence the voting results, or whether other significant or insignificant violations were committed during the meeting.
Taking into account the circumstances established by the board, the court decision cannot be recognized as legal and justified, it is subject to cancellation, and the requirements of Matveev M.Yu. on invalidating the decisions of the general meeting of owners of premises in an apartment building at the address: _. conducted in the form of absentee voting during the period from _. by _. g., drawn up by the minutes of the extraordinary general meeting of owners of premises in an apartment building at the address: _. , in the form of absentee voting dated _.., are subject to satisfaction.
Regarding the claims for invalidation of the minutes of the extraordinary general meeting of owners of premises in an apartment building at the address: _. , in the form of absentee voting from _. g., the board does not see any grounds for satisfying these requirements, since the protocol itself reflects the course of the meeting, does not give rise to legal consequences, and the possibility of independently challenging it Art. 181.2 of the Civil Code of the Russian Federation is not provided for.
The claims brought against Tekhstroy LLC cannot be satisfied, since the plaintiff’s demands in this case arise from the legal relations of the owners of premises in an apartment building to challenge the decisions of the general meeting, and in this case the proper defendant will be the initiator of the meeting.
Taking into account the above, the panel comes to the conclusion that the court decision is canceled and the stated claim is partially satisfied.
Guided by Art. Art. 328, 329 Code of Civil Procedure of the Russian Federation, judicial panel
determined:
The decision of the Ostankino District Court of Moscow dated _.. is cancelled.
Invalidate the decisions of the general meeting of owners of premises in an apartment building at the address: _. conducted in the form of absentee voting during the period from _. by _. g., drawn up by the minutes of the extraordinary general meeting of owners of premises in an apartment building at the address: _., in the form of absentee voting dated _. G.
In the rest of the claims, Matveev M.Yu. refuse.
Presiding
GENERAL PROVISIONS
We remember that our main obstacle is - Part 6 of Article 46 of the Housing Code of the Russian Federation about the 6-month limitation period:
The owner of premises in an apartment building has the right to appeal to the court a decision made by a general meeting of owners of premises in this building in violation of the requirements of this Code, if he did not take part in this meeting or voted against such a decision and if such a decision violated his rights and legitimate interests. An application for such an appeal may be filed with the court within six months from the day when the specified owner learned or should have learned about the decision. The court, taking into account all the circumstances of the case, has the right to uphold the appealed decision if the vote of the specified owner could not influence the voting results, the violations committed are not significant and the decision made did not entail causing losses to the specified owner.
We're going around the barrier pointing out the insignificance of the meeting's decision. But at the same time, it is necessary not to mention at all about the mass of other violations, so as not to give the enemy the opportunity to raise before the court the question of the insignificance of the mentioned violations - we focus only on THREE violations
Failure to comply with quorum (competence; means of proof of a certain type are not presented)
The established requirements have been violated - the protocol does not have the proper details (signature of a secretary not elected by the meeting; absence of a secretary’s signature, signature of the chairman is forged, etc.)
We point out the nullity of the meeting's decision in documents of various forms
In a lawsuit - in the form of an Objection to claims or in the form of an Additional Explanation in a lawsuit;
In appeals to supervisory or law enforcement authorities;
In complaints about procedural decisions taken on our appeals
Section 1. ILLEGALITY OF THE MEETING
EXAMPLE No. 1 - QUORUM NOT PROVEN
To court
Federal Judge
Participant in the case
ADDITIONAL EXPLANATION
The defendant claims that there was a decision of the general meeting dated DATE, at which a decision was allegedly made to elect the LLC as a management organization. In fact, there is no evidence that the meeting (if it took place) made any decision due to the lack of proof of a quorum
According to Part 3 of Art. 45 Housing Code of the Russian Federation:
“the general meeting of owners of premises in an apartment building is valid (has a quorum) if the owners of premises in this building or their representatives with more than fifty percent of the votes of the total number of votes took part in it.”
According to Part 5 of Art. 181.2 of the Civil Code of the Russian Federation The minutes of the meeting must contain information about the persons who took part in the voting (clause 2). In violation of these requirements, the minutes of the meeting do not indicate information about the persons who took part in the meeting, and therefore there is no evidence that the participants in the meeting actually had, in the aggregate, a sufficient number of votes giving the right to make decisions.
In the owner’s decision on issues put to vote, in accordance with Part 3 of Art. 47 of the RF Housing Code must indicate:
1) information about the person participating in voting;
2) information about the document confirming the ownership of the person participating in the vote to the premises in the corresponding apartment building;
3) decisions on each issue are hanging currents of the day, expressed by the wording “for”, “against” or “abstained”.
According to Part 1 of Art. 46 Residential Complex of the Russian Federation
State policy and legal regulation in the field of housing and communal services is carried out by the Ministry of Construction and Housing and Communal Services. In the Methodological Recommendations on the procedure for organizing and holding general meetings of owners of premises in apartment buildings, paragraph 5 of Section VI, approved by the Order of the Ministry of Construction and Housing and Communal Services of the Russian Federation dated July 31, 2014 No. 411/pr, states that the presence of a quorum is confirmed
a registration sheet for participants in the general meeting (owners of premises in an apartment building or their representatives) indicating the surname, first name, patronymic, address, details of the certificate of ownership of the premises in this apartment building, share in the right of common ownership of common property in this apartment building, signature the owner or the owner’s representative with a power of attorney attached, if the owner’s representative takes part in the general meeting.
In full accordance with Article 60 of the Code of Civil Procedure of the Russian Federation, the above requirements for “information about persons” indicate that proving the competence of a meeting is allowed only by information about the persons who took part in the vote:
i) the original Registration Sheet (Register of Participants) of the meeting with their signatures
ii) genuine Ballots - Decisions of meeting participants with their signatures, -but by no other means of proof I;
owners of premises who are not members of the partnership
in an apartment building have the right to familiarize themselves with the following documents:
6) minutes of general meetings of members of the partnership, ....;
7) documents confirming the results of voting at the general meeting of members of the partnership twa,
Our legal position is that the general meeting did not take place at the specified time, there were no meeting participants, they did not make decisions on the agenda and did not fill out decision forms. In the absence of voting ballots (decisions) and the Register of meeting participants, it is impossible to verify the presence of owners holding more than fifty percent of the total number of votes in the meeting.
According to paragraph 2 of Art. 185.5 Civil Code of the Russian Federation
Since the opposing party did not provide evidence of the legality of the meeting, I ASK you to reflect this circumstance, which is crucial for the correct resolution of the case, in the reasoning part of the court decision.
EXAMPLE 2. EXCEEDING THE COMPETENCE OF THE MEETING WHEN FORMING THE ACCOUNTING COMMISSION
To court
Federal Judge
Participant de la
ADDITIONAL EXPLANATION
regarding the formation of the counting commission
According to Part 5 of Art. 181.2 of the Civil Code of the Russian Federation The minutes of the meeting must be provide information about the persons who counted the votes (paragraph 4) and about the persons who signed the protocol (paragraph 5). The literal interpretation of the above provisions of the law comes down to the fact that the votes are counted by some persons, and the protocol is signed by others. It should be taken into account that according to Part 3 of Art. 181.2 of the Civil Code of the Russian Federation, the minutes are signed by the chairman of the meeting and the secretary of the meeting. Consequently, the procedure for holding a meeting established by law excludes the inclusion of the chairman and secretary of the meeting in the counting commission.
According to Part 1 of Art. 46 Residential Complex of the Russian Federation
Decisions of the general meeting of owners of premises in an apartment building are documented in protocols in accordance with the requirements established by the federal executive body exercising the functions of developing and implementing state policy and legal regulation in the field of housing and communal services.
State policy and legal regulation in the field of housing and communal services is carried out by the Ministry of Construction and Housing and Communal Services. In the Methodological Recommendations on the procedure for organizing and holding general meetings of owners of premises in apartment buildings, paragraph 13 of Section VII, approved by the Order of the Ministry of Construction and Housing and Communal Services of the Russian Federation dated July 31, 2014 No. 411/pr, it is established that “to summarize the results of the general meeting in the form by absentee voting, a counting commission is created, the members of which are elected at the general meeting."
The “complicity” of the chairman and secretary of the meeting in the work of the counting commission deprives the counting of votes of legitimacy. According to paragraph 17 of Section VII of the mentioned Methodological Recommendations, members of the counting commission sign the Protocol separately on the Chairman and Secretary of the meeting
Taking into account the requirements for certain means of proof (Article 60 of the Code of Civil Procedure of the Russian Federation), proving the competence of the counting commission is allowed only by electing persons other than the chairman and secretary elected by the meeting. No such evidence was presented, therefore there is no reason to trust the voting results counted with the participation of the chairman and secretary of the meeting.
Within the competence of the meeting in Part 2 of Art. 44 of the RF Housing Code does not indicate the right of the general meeting of owners to establish its own procedure for counting votes and does not provide for the right to vest the chairman and secretary of the meeting with the rights to count votes.
According to Part 5 Art. 46 Residential Complex of the Russian Federation only if the decision becomes binding on all owners of premises in an apartment building, if it is adopted in the prescribed manner and on issues within the competence of such meeting. A direct violation of the procedure established by law for the formation of the counting commission indicates the insignificance of the decision due to the excess of the powers of the meeting to establish a special procedure for counting votes, different from the one established by law, when it is adopted. This the decision has not acquired legal force, it is not binding on the owners of the premises
Since the opposing party did not provide evidence of compliance with the requirements of the law when forming the counting commission, I ASK you to reflect this circumstance, which is crucial for the correct resolution of the case, in the reasoning part of the court decision.
Section 2. VIOLATION OF THE REQUIREMENTS FOR THE ESTABLISHED PROCEDURE FOR CONDUCTING A MEETING
EXAMPLE No. 3 - CONCERNING THE SIGNING OF THE PROTOCOL
To court
Federal Judge
Participant in the case
According to Part 5 Art. 46 Residential Complex of the Russian Federation only if the decision becomes binding on all owners of premises in an apartment building, if it is accepted in the prescribed manner. The established procedure requires a signature in the Protocol the chairman of the meeting and the secretary of the meeting (Part 3 of Article 181.2 of the Civil Code of the Russian Federation), however, in violation of this requirement, the Minutes of the General Meeting were not signed by the chairman of the meeting.
According to Part 1 of Art. 46 Residential Complex of the Russian Federation
Decisions of the general meeting of owners of premises in an apartment building are documented in protocols in accordance with the requirements established by the federal executive body exercising the functions of developing and implementing tions of state policy and legal regulation in the field of housing and communal services.
State policy and legal regulation in the field of housing and communal services is carried out by the Ministry of Construction and Housing and Communal Services. In the Methodological Recommendations on the procedure for organizing and holding general meetings of owners of premises in apartment buildings, paragraph 15 of Section VII, approved by the Order of the Ministry of Construction and Housing and Communal Services of the Russian Federation dated July 31, 2014 No. 411/pr, it is established that “the minutes of the general meeting in the form of absentee voting is made in writing, signed by the chairman of the general meeting and the secretary of the general meeting, as well as members of the counting commission."
In violation of the accepted procedure, the minutes of the meeting were not signed by the chairman of the meeting
Chairman - K.Yu. BEKETOV.
secretary - A.S. COUSIN.
DATE does not have the property of an official document that the decision was drawn up in violation of the established procedure, and therefore the decisions contained in it have no legal force
EXAMPLE No. 4 -NOTSIGNING OF THE PROTOCOL and CERTIFICATION OF SIGNATURES
To court
Federal Judge
Participant in cases A
ADDITIONAL WRITTEN EXPLANATION
as proof of the lack of legal force of the Minutes of the meeting dated DATE
The minutes of the general meeting dated DATA were drawn up in violation of Part 3 of Art. 45 and part 1, 2 art. 46 Housing Code of the Russian Federation. The protocol is certified by the seal of the Company and signed by the employees of the Company AA, BB, BB as members of the counting commission, and by the General Director of the GG.
The protocol does not contain a single signature of the owner of the premises in the house. By virtue of Part 1 of Art. 46 of the Housing Code of the Russian Federation, decisions of the general meeting of owners are documented in protocols in the manner established by the general meeting of owners of premises in a given building.
The protocol is a document reflecting decisions made by the owners, which excludes the signing of this document by other persons who are not the owners, unless the owners, by their decision, have established such a special procedure for drawing up the protocol. No evidence was provided of the owners' acceptance of the special procedure for drawing up the protocol.
According to the law, the minutes are signed by the chairman of the meeting and the secretary of the meeting (Part 3 of Article 181.2 of the Civil Code of the Russian Federation), however, in violation of this requirement, there is no signature of the chairman of the meeting under the Minutes of the general meeting.
By virtue of Part 1 of Art. 46 of the Housing Code of the Russian Federation, decisions of the general meeting of owners are documented in protocols in the manner established by the general meeting of owners of premises in a given building. The meeting did not establish a procedure in which the minutes were not signed by the chairman.
The decision of the owners to elect AA, BB, and BB as members of the counting commission gives these persons the right to only count votes. No decision was made on the right of these persons to sign the minutes of the general meeting of owners on behalf of the owners.
Certification on the Minutes of the meeting of signatures of members of the counting commission AA, BB and BB with the seal of the management organization indicates that the document belongs to the management organization, but the general meeting of owners of premises in an apartment building is the management body of the apartment building, not subordinate to any legal entity (Part 1 of Article 44 of the Housing Code of the Russian Federation ).
According to clause 23 of GOST R 51141-98, an official document is recognized exclusively as a document executed and certified in the prescribed manner. According to clause 4.9 of GOST R 6.30-2003 "Organizational and administrative documentation. Requirements for the preparation of documents ..."
“The protocol is signed according to the scheme
Chairman - K.Yu. BEKETOV.
secretary - A.S. COUSIN.
The words “chairman” and “secretary” are printed to the left of the zero position of the tabulator, separated by two intervals from the title and from each other... The minutes are drawn up by the secretary of the meeting, the minutes acquire legal force only if there are two signatures - the chairman and the secretary. signatures are placed, separated from the text by two or three line spacing, from the border of the left margin. the first copy of the protocol is signed, which is filed by the secretary in the file and stored in accordance with the period determined by the nomenclature of files.
Judicial practice confirms that improper execution of the minutes of a general meeting as a document having legal force - in particular, the absence of the signature of the chairman of the meeting - is a significant circumstance for declaring such minutes void - see. for example, the Cassation ruling of the Judicial Collegium for Civil Cases of the Supreme Court of the Republic of Karelia dated December 27, 2011 in case No. 33-3868/2011.
It follows that the Protocol ofDATE does not have the property of an official document, and therefore the decisions contained in it have no legal force
Section 3. LACK OF QUORUM in case of EXCEEDING COMPETENCE in terms of FORMATION OF ASSEMBLY BODIES
Example No. 5
To court
Federal Judge
Participant in the case
ADDITIONAL EXPLANATION
The defendant claims that there was a decision of the general meeting dated March 28, 2013, at which a decision was allegedly made to elect Management Company Housing Standard LLC as a management organization. In fact, there is no evidence that the meeting (if it took place) made any decision on three grounds
1. LACK OF RELIABLE INFORMATION ABOUT VOTING PARTICIPANTS
According to Part 3 of Art. 45 Housing Code of the Russian Federation:
“the general meeting of owners of premises in an apartment building is valid (has a quorum) if it was attended by premises owners in this house or their representatives having more than fifty percent of the votes of the total votes.”
According to clause 2, part 5 of Art. 181.2 of the Civil Code of the Russian Federation The minutes of the meeting must contain information about the persons who took part in the voting. In violation of these requirements, the minutes of the meeting do not indicate information about the persons who took part in the meeting, and therefore there is no evidence that the participants in the meeting actually had a sufficient number of votes, giving the right to make decisions
In full accordance with Article 60 of the Code of Civil Procedure of the Russian Federation, the given requirements for
“information about persons” indicate that proving the competence of a meeting is allowed only by information about the persons who took part in the vote:
i) the original Register of meeting participants with their signatures and
ii) genuine Bulletins - Decisions of meeting participants with their signatures - but no other means of proof;
This evidence has not been presented, thus the presence of quorum has not been proven.
From the contents of the agenda of the meeting it is clear that the issue of electing the counting commission was not submitted to the decision of the voting participants. Meanwhile, according to Part 5 of Art. 181.2 of the Civil Code of the Russian Federation The minutes of the meeting must contain information about the persons who counted the votes (clause 4) and about the persons who signed the protocol (clause 5). The literal interpretation of the above provisions of the law comes down to the fact that the votes are counted by some persons, and the protocol is signed by others.
In the Methodological Recommendations on the procedure for organizing and holding general meetings of owners of premises in apartment buildings, paragraph 13 of Section VII, approved by the Order of the Ministry of Construction and Housing and Communal Services of the Russian Federation dated July 31, 2014 No. 411/pr, it is established that “to sum up the results of the general meeting in In the form of absentee voting, a counting commission is created, the members of which are elected at the general meeting."
According to paragraph 17 of section VII of the mentioned Methodological Recommendations members of the counting commission sign the Protocol separately on the Chairman and secretary of the meeting.
Taking into account the requirements for certain means of proof (Article 60 of the Code of Civil Procedure of the Russian Federation), proving the competence of the counting commission is allowed only by electing persons other than the chairman and secretary elected by the meeting. No such evidence has been presented, therefore there is no reason to believe that the voting results were determined in the manner prescribed by law
According to Part 5 of Art. 46 of the Housing Code of the Russian Federation only if the decision becomes binding on all owners of premises in an apartment building if it is made in the prescribed manner and on issues within the competence of such a meeting. A direct violation of the procedure established by law for the formation of the counting commission deprives the summing up of the results of the meeting of legitimacy; such a decision has not acquired legal force, it is not binding on the owners of the premises.
3. EXCEEDING THE COMPETENCE OF THE ASSEMBLY IN FORMINGBODIES OF THE ASSEMBLY
According to Part 3 of Art. 181.2 Code of Civil Procedure of the Russian Federation
D.R. Vasilyeva is indicated in the Protocol as the secretary of the meeting, but she cannot be a participant in the meeting, much less elected to the elective position of secretary of the meeting, since she was not the owner of the premises at the time of the meeting. A representative of Yarunova’s organization, in support of Vasilyeva’s authority to participate in the meeting, presented on November 7, 2016, a power of attorney for participation in the meeting by D.R. Vasilyeva, certified by Housing Standard Management Company LLC. from her relative R.V. Shafigullin, who received a certificate of ownership of the apartment in December 2013 - 8 months after the meeting.
It follows, firstly, that at the time of execution of the power of attorney, indicated in the power of attorney, the principal did not have ownership rights and transferred powers that he did not have. And secondly,
LLC "UK Housing Standard" did not have the right of a management organization at the time of execution of the power of attorney; This organization acquired the status of a managing organization after the meeting.
According to Part 1 of Art. 46 Residential Complex of the Russian Federation
The minutes of the general meeting of owners of premises in an apartment building is an official document.
Since the Protocol was not signed by a secretary who has the right to participate in the meeting, it acquired the characteristics of an official document, such a document is considered void, regardless of whether it is recognized as such by the court.
Conclusion
According to the current legislation, the decision of the meeting can be challenged; in this case, the concept of “voidable transaction” is used. But in the case under consideration, only our indication of the insignificance of the meeting’s decision is sufficient - in paragraph 1 of Art. 185.3 of the Civil Code of the Russian Federation states:
The decision of the meeting is invalid on the grounds established by this Code or other laws, due to its recognition as such by the court (disputable decision) or regardless of such recognition (void decision).
According to paragraph 2 of Art. 185.5 Civil Code of the Russian Federation
Unless otherwise provided by law, the decision of the meeting is void if it is...adopted in the absence of the required quorum
No evidence of quorum was provided. According to Art. 60 of the Code of Civil Procedure of the Russian Federation, failure to present means of proof of a certain type cannot be compensated for by any other means of proof.
According to Part 1 of Art. 46 Residential Complex of the Russian Federation
The minutes of the general meeting of owners of premises in an apartment building is an official document.
Since the formed Protocol did not acquire the characteristics of an official document due to the lack of signature of the secretary of the meeting and the absence of signatures of members of the counting commission. Such a document is considered void regardless of whether it is recognized as such by the court.
Under the circumstances described, there was no reason to believe that
That the meeting actually took place;
That the appropriate number of meeting participants attended;
That the meeting has formed the bodies of the meeting in the proper order (counting commission; chairman and secretary);
That the participants were actually given decision forms;
That the participants noted in the decision forms all the necessary details, including their registered ownership;
That a commission elected by the assembly carried out a count of votes;
That the members of the counting commission signed the voting results;
That the chairman and secretary, who have the right to participate in the meeting, have drawn up the minutes with their signatures
I ASK you to reflect this circumstance, which is of decisive importance for the correct resolution of the case, in the reasoning part of the court decision.
EXAMPLE No. 6 -SIGNING OF THE PROTOCOL BY AN UNAUTHORIZED PERSON AND COUNTING OF VOTES BY AN UNELECTED COUNTING COMMISSION
To court
Plaintiffs
Defendant HOA
STATEMENT OF CLAIM
on the application of the consequences of nothing new deal
We became aware of the existence of Protocol No. 4 of the decision of the meeting held from May 12 to May 26, 2015 on the approval of the conclusion of the audit commission, on the approval of the estimate, on the renaming of the fund and other issues (Appendix No. 2). We consider that the decision of this meeting is void and raise before the court the question of applying the consequences of the invalidity of a void decision, in support of which we provide the following arguments
1 - According to Part 5 of Art. 46 of the Housing Code of the Russian Federation, the decision of the general meeting of owners of premises in an apartment building becomes “binding for all owners of premises in an apartment building, including those owners who did not participate in the vote,” only if it is adopted “in the manner established by this Code, on issues within the competence of such a meeting.” However, during the general meeting of owners, the procedure established by law was violated, and many times in the form
Failure to comply with the procedure for completing the protocol (ii)
i) From the content of Protocol No. 4 it follows that the agenda did not provide for the election of members of the counting commission. At the same time, the Protocol contains the following entry:
Members of the counting commission (owners of premises who took part in the counting of votes)
1. Vorobyova Olga Nikolaevna (apartment 147);
2. Barshina Olga Yurievna (apt. 78)
It follows that the counting commission was not elected by the meeting, and the participants of the meeting, Vorobyova O.N. and Barshina O.Yu. do not have the authority to count votes cast by meeting participants. Housing legislation provides for the scope of competence of the general meeting of owners - Part 2 of Art. 44 Housing Code of the Russian Federation. Within the scope of its competence, the powers of the general meeting of owners to violate the established procedure for counting votes are not specified, and the right of any persons who do not have special powers to perform the duties of members of the counting commission is not specified.
Since the issue of electing members of the counting commission was not included on the agenda at all, the appearance of any voting results is excluded; The voting results on no issues on the agenda were summed up in the proper manner, and therefore no decisions have legal consequences.
ii) According to Part 3 of Art. 181.2 Code of Civil Procedure of the Russian Federation
The minutes of the meeting are signed by the chairman and secretary
The meeting is opened and chaired by the Chairman of the Board of the Privolnoe Homeowners Association - Mzhelsky V.M. Secretary of the meeting - Yarkova L.L.
Since the meeting participants did not elect a secretary of the meeting, L.L. Yarkova did not receive authority from the meeting to participate in the preparation and signing of the Minutes of the meeting. Without the secretary's signature, the Protocol is deprived of the required document details.
According to term No. 8 from GOST 7.0.8 - 2013 “System of standards... Terms and definitions”
Official document: A document created by an organization, official or citizen, executed in the prescribed manner ke
According to Part 1 of Art. 46 Residential Complex of the Russian Federation
Minutes of the general meeting of premises owners th in an apartment building is an official document.
Since the completed Protocol did not acquire the characteristics of an official document, such a document is considered void regardless of whether it is recognized as such by the court.
2 - The competence of the general meeting is limited by Part 2 of Art. 44 Housing Code of the Russian Federation; the meeting does not have the right to consider any issue included on the agenda; The meeting has the right to consider exclusively those issues that are affected by the RF Housing Code. But Housing legislation does not allow the meeting to make decisions without the formation of a counting commission and without electing a secretary of the meeting. According to clause 3 of Art. 185.5 Civil Code of the Russian Federation
Unless otherwise provided by law, the decision of the meeting is void if it is...adopted on an issue not within the competence of the meeting
3 - According to the current legislation, the decision of the meeting can be challenged; in this case, the concept of “voidable transaction” is used. But in the case under consideration, only our indication of the insignificance of the meeting’s decision is sufficient - in paragraph 1 of Art. 185.3 of the Civil Code of the Russian Federation states:
The decision of the meeting is invalid on the grounds established by this Code or other laws, due to its recognition as such by the court (disputable decision) or regardless of such recognition (void decision).
At the same time as pointing out the nullity of the meeting’s decision, we raise before the court the question of applying the consequences of the invalidity of a void decision in full accordance with Art. 12 Civil Code of the Russian Federation
Based on the above, guided by art. 18; 46 of the Constitution of the Russian Federation, articles 1, 4, 8, 44, 45; 46 Housing Code of the Russian Federation; Article 16 of the Law on Protection of Consumer Rights; Articles 8, 12, 166-169; 182.1; 185.1 Civil Code of the Russian Federation; Articles 131-132 of the Code of Civil Procedure of the Russian Federation
In order to apply the consequences of the invalidity of a void decision of the general meeting, RECOGNIZE the decision of the general meeting as having no legal consequences
APPLICATION
1. Receipt for payment of state duty 300 rubles
2. Minutes of the meeting (copy)
