Is the homeowners association obligated to enter into an agreement with homeowners?

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The Homeowners Association in its work is based on the Housing Code of the Russian Federation and the Civil Code of the Russian Federation. The main internal document in the HOA is the Charter. It must comply with the legislation of the Russian Federation, so it is necessary to make adjustments taking into account changes in laws. Upon creation, the owners elect the chairman of the community board.

Residents entrust the chairman with the economic activities of improving the apartment building, repair work and utility costs. The scope of work of the chairman of the HOA is wide, and is not always within the competence of the person chosen for this position. In this case, the smart solution would be to hire a knowledgeable person. A legal action is the legal registration and conclusion of an agreement with the HOA manager.

Scope of activity of the HOA manager

The management of the HOA includes the owners of apartments in a building or several apartment buildings. These are people interested in improvement and not indifferent to property. But utility specialists are not always among them. It’s easier to hire an electrician or accountant than a life support manager for an apartment building. Therefore, the practice of hiring an individual – a specialist in this type of activity – has emerged.

The HOA manager is an employee subordinate to the chairman of the board who is guided in his work by the job description and contract. Each housing community independently evaluates the tasks assigned to the manager, taking into account its own needs.

Common features include:

representation of HOAs in government organizations and local governments;
selection of contractors, control of their activities, determination of the scope of work and verification of work results;
concluding agreements for the lease of common property (banners on the facade, rent of basement premises);
coordination of the activities of members of the partnership;
drawing up estimates and reports for a certain period;
working with utility defaulters;
working with service providers;
hiring, regulation of work and dismissal of personnel (janitors, cleaners, etc.);
interaction with residents of the house, receiving complaints and suggestions.

In addition to the above, there are many responsibilities that, in agreement with the management and apartment owners at the general meeting, are included in the employment contract with the HOA manager.

According to the Housing Code, Article 147, paragraph 3.1, the chairman of the board cannot delegate all his powers to a hired employee. It is only possible to assign a certain range of responsibilities agreed upon with the members of the general meeting.

The position of HOA manager is not strictly required by law. Everything depends on the needs of the community and is decided collectively. The chairman of the board and the entire housing community will be required to determine for what purpose the specialist will be involved. The need to hire an outside HOA manager may arise from the following reasons:

there are no specialists among the residents who have the necessary knowledge, experience and competence;
there are several apartment buildings in the community, which means a large amount of work;
the chairman of the board lacks free time for all management activities;
the need for crisis management.

The need for crisis management arises, for example, when an HOA has a large debt for utility services. It is also common practice to hire a third-party manager to transfer knowledge and experience to the management of the new HOA. The terms of reference will determine the requirements for the candidate.

Significant factors for the manager will be:

higher education;
knowledge of housing legislation;
management experience;
no criminal record; stress resistance;
the ability to achieve mutual understanding with people.

Sample agreement between homeowners association and homeowners

The party to the agreement is the HOA, on whose behalf the chairman . But if the charter of the HOA provides for the conclusion of an agreement by a general meeting of owners, then the decision to sign such a document is made at a general meeting of members of the partnership.

The obligation of the HOA to carry out work on the maintenance and repair of the common property of an apartment building is its statutory duty (clause 1 of Article 135, clause 1 of Article 138, clauses 1, 2 of Article 161 of the Housing Code of the Russian Federation). The HOA is obliged to manage the entire complex of property of the apartment building, and owners who are not members of the HOA cannot refuse to provide them with these services, since by virtue of clause 4 of Art. 37 of the Housing Code of the Russian Federation, the allocation of a share in the right of common ownership of the property of an apartment building in kind is impossible.

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Composition of the employment contract with the HOA manager

The work of the HOA manager can be regulated by two types of documents:

civil agreement with the HOA manager;
employment contract with the HOA manager.

The agreement assumes broad powers for the employee. But a civil agreement is concluded when an employee is hired for a certain period to perform a specific task. It describes in detail the scope of activity, terms and responsibilities of the manager.

The employment contract implies a subordinate position of the manager to the chairman of the board of the HOA. The contract is regulated by the Labor Code of the Russian Federation.

On the Internet you can find many options for an employment contract with the HOA manager. But the main points are similar and are prescribed at the legislative level. The subjects of the agreement are the community of residents represented by the chairman of the board and an involved specialist. The manager can be an individual or an individual entrepreneur (IP). The IP department may have several housing communities.

The agreement includes standard sections:

Subject of contract . This paragraph reveals the essence of contractual agreements - the provision of management services.
The duration of the contract depends on the requirements imposed on the specialist: contractual relations are limited to specific dates, the conclusion of a contract for an indefinite period, the conclusion of a contract for the duration of the work stipulated by this contract.
Details of the parties . The details indicate the current account of the HOA, its address, INN and name. The candidate must provide passport details, insurance certificate number, TIN and bank details.
Duties of the parties . This paragraph reveals the requirements for the work of the manager and the responsibilities of the subjects of the contract.
Working conditions . This paragraph describes in detail wages, wage guarantees, normalization of working hours, vacation, and social security of the hired specialist.
Modification, continuation and termination of the contract . The contractual relationship may be terminated at the end of the contract period or automatically extended until the completion of the service activities. This clause also regulates the early termination of the contract.
Special conditions . The clause regulates other conditions depending on the charter of the HOA, the purpose of hiring a third-party employee and possible legal details.

To avoid disputes, it is important to draw up an employment contract correctly and in as much detail as possible.

Maintenance agreement with the HOA

Citizens who refuse to join the partnership or decide to leave it enter into agreements containing conditions for the maintenance/maintenance of an apartment building.

Such a tenant is charged for utilities and expenses associated with maintaining the property and territory of the house in proper condition.

The partnership cannot oblige residents to make additional contributions. At the legislative level, the form of such a document is not provided, but according to the rules, it is always drawn up in written, free form.

Failure to comply with this form entails the recognition of any legal relationship between the parties as having no legal meaning.

Video: Housing and communal services encyclopedia - creating a HOA

Apartment building

The main purpose of creating a governing body is to control the property located in an apartment building.

This includes ensuring its operation, ownership and use within the framework specified by the law.

Housing legislation provides for the possibility of concluding agreements regarding maintenance, repair work, provision of utilities, etc., that is, in other words, various transactions in the interests of persons included in the partnership.

The norms of housing law oblige the partnership to formalize contractual relations for carrying out repair work on common property and maintaining the house with residents who are not members of the partnership.

No less important are the following points related to payment of fees:

All participants in the partnership are required to pay mandatory payments and contributions	required to pay for the costs of maintaining and carrying out various types of repairs of common property, including utility services
Persons who are not members of the partnership	make the necessary payments based on concluded individual agreements

The relationship between the partnership and the full owners of residential premises is mandatory.

The emergence of such relations arises from law and contract; accordingly, the general norms of civil law apply to them.

All relations with members of the partnership are built on the basis of the Charter and decisions made at the general meeting. And with those who are not members of the partnership, separate agreements are concluded.

With the property owner

The partnership, after its official registration, is obliged to build relationships with residents who have joined its ranks, as well as with those who have not expressed such a desire.

A special agreement is signed with those who do not wish to become participants in the partnership. Its subject will be common property and the procedure for its maintenance and repair.

The agreement stipulates the following points:

List of common property that should be repaired	types of work carried out, options for their implementation
Liability of the partnership for failure to fulfill its obligations	terms, procedure and amount of fees for services, and liability in case of violation
Responsibilities of owners in a timely manner	and pay utilities and other services in full

The agreement is drawn up in one copy, for each of the entities that have entered into new legal relations, in which the chairman of the partnership and the owner of the residential premises sign.

Read about the constituent documents of the HOA in the article: documents of the HOA (Homeowners' Association). How to write and where to file a complaint against the chairman of the HOA, read here.

For its part, the legislation does not give the partnership the right to compulsorily enter into agreements with the owners of the premises.

If one of them refuses to sign the agreement, then one should hope for his integrity, since if timely payment for utilities is not made, then liability may affect all residents of the apartment building.

Alternatively, management of the house can be transferred to a management company, which will also be elected at a general meeting. At the same meeting, the contract for managing the house is approved.

According to the agreement, the company chosen for management, on the instructions of the partnership or owners, undertakes to fulfill all conditions relating to the management of the house and its common property.

In essence, the agreement will be similar to the agreement concluded between the partnership and the owner.

The management company can carry out repair work on its own, with the involvement of the organization’s personnel, or through the involvement of contractors. Her responsibilities include an annual report to the owners of the premises.

Technical inspection

The issue of the need to conclude an agreement for the technical inspection of common property is controversial and often subject to doubt.

There are two positions on this issue:

Legislative position	Based on the norms of housing legislation, contracts for technical inspection are concluded with persons who are not members of the partnership; legal relations with members of the management body in question are regulated by the approved and adopted Charter
The second position concerns the imperfection of the current legislation in the area under consideration and is adhered to by many partnerships	Many owners of premises who do not show a desire to join the established management body have a categorical attitude towards it, or are not proactive owners, so it is problematic to conclude any type of agreement with them. The obligation to draw up and sign contracts falls entirely under the law to the HOA, that is, the owners of the premises are not obliged to take any initiative themselves.

It is important to note that the obligation to carry out repairs and control the maintenance of property that is common property follows from the Charter of the partnership (Housing Code of the Russian Federation, paragraph 1 of Article 135, paragraph 1 of Article 138, paragraphs 1, 2 of Article 161).
Owners of premises who are not members of the partnership cannot refuse to provide its services, since, by virtue of the norms of housing legislation (clause 4, Article 37), the allocation of shares in the common ownership of property in kind is not allowed.

It must be taken into account that issuing an invoice to the owner regarding payment for services for the maintenance of common property, utility services and payment of such an invoice by the owner will be regarded as the conclusion of an appropriate agreement between the parties.

This circumstance is revealed from Articles 434 (clause 3) and 438 (clause 3) of the Civil Code of the Russian Federation.

Conditions for technical inspection and all related services are considered at a general meeting of members of the partnership, where a general list and cost are established.

Civil and housing legislation establishes the general principle of assigning the responsibility for maintaining property to its owners, as well as the burden of paying for housing.

In other words, despite the existing legal norms regulating the performance of work and services for the repair and maintenance of the common property of the house, including in terms of concluding contracts with persons who are not among the members of the HOA, it does not always make it possible to come to a general agreement with them.

For non-residential premises

If we are talking about the participation of owners who are not part of the HOA in general house expenses, then an agreement is concluded with them.

The document is drawn up between the partnership and the owner of the property:

the right to share participation in the use of property and existing expenses;
for the management of common property.

In this part, housing legislation imposes an obligation to maintain property on all entities that have the right to both residential and non-residential premises.

The contract must have as mandatory conditions:

Exact list of property	and a list of services provided
Explanation of the cost of services related to home maintenance	rules for access to equipment required for inspection and repair
Conditions for taking meter readings	and conditions for the use of common property
Responsibility for caring for the land	located near an apartment building

An agreement on the procedure for the supply of utilities will serve as a separate document.

All documents are drawn up in writing and signed by the parties. If any disagreements arise, the parties can draw up appropriate protocols or additional agreements.

Job description of the HOA manager

A job description is a document approved by the HOA charter, which specifies all the manager’s job responsibilities. In addition, the document defines the employee’s rights, payment terms and regulates working hours, rest time and vacation.

Familiarization with the job description and charter of the HOA should occur before signing the employment contract. An employment contract guarantees the employee’s consent to all the terms of the job description. The job description is signed by the chairman of the HOA board and the hired manager. Certified with a wet seal.

Power of attorney for authorized actions

When taking on the position of HOA manager, a new employee is given a power of attorney to act on behalf of the housing association. This is a legal document that gives you the right to make decisions and sign necessary documents. The HOA manager needs a power of attorney to resolve the following issues:

registration of contracts with contractors and resource suppliers;
solving problems in financial and supervisory organizations;
representing the interests of HOAs in courts and tax authorities.

Any action of a financial or legal nature must be confirmed by a power of attorney, which is signed by the chairman of the board of the HOA. The power of attorney must specify all organizations in which the powers of the manager apply. All actions to which the rights of an employee on behalf of the HOA apply must also be indicated. It is mandatory to indicate the expiration date of the power of attorney. Usually it coincides with the expiration date of the employment contract.

The authenticity of the power of attorney is certified by the chairman of the HOA board with a signature and a wet seal. It would be reasonable to entrust the execution of a power of attorney to a lawyer, since an incorrectly drawn up document may be grounds for declaring the transaction invalid.

Comparison of contract types

Current legislation provides for two types of agreements that can be concluded between the Partnership and the Management Company:

contract, the provisions of which are regulated by Chapter 37 of the Civil Code of the Russian Federation;
paid provision of services for the management of apartment buildings, concluded in accordance with Article 161 of the Housing Code of the Russian Federation.

Both options are concluded in writing by the chairman of the HOA.

Mandatory conditions are:

payment (the price or the method for determining it must be indicated);
urgency (the duration of the contract is established);
the types of services must be clearly defined.

ATTENTION! An agreement is considered concluded not when there is a decision of the meeting, but only if it contains original signatures and seals of authorized persons on each side!

Let's take a closer look at the differences.

Contract

In this type of agreement, the HOA instructs the management company to perform certain functions for the maintenance and repair of apartment buildings (for example, emergency maintenance, cleaning the territory, accounting services, etc.).

The price of the management company is established by the provisions of the concluded agreement in accordance with the estimate of income and expenses approved by the general meeting of the HOA.
The owners of the premises make payments to the settlement account of the Partnership, and it handles settlements with the management company itself.
The owners of the premises present claims for improper performance of work to the Partnership , which can present them to the Criminal Code by way of recourse (Article 1081 of the Civil Code of the Russian Federation).
A management company can undertake contract work with an HOA without a license.
The Partnership reports to the owners of the premises on the work done and execution of the estimate.
Termination is possible by agreement of the parties or in court.

IMPORTANT! The construction agreement leaves the Partnership with the right to manage the house and control over cash flows remains with the HOA.

Provision of services

Let us highlight the important thing - all functions for managing the home of the HOA are completely transferred to the management company.

The cost of the management company’s work is established by the management agreement. It is the same for all owners, but not more than the amount approved at the general meeting of HOA members.
Owners of premises pay payments for housing and communal services to the account of the management company.
Property owners file claims for improper execution with the Criminal Code.
A license is required to operate a management company.
There is an annual report from the Management Organization on the work done and the implementation of the estimate to the owners of the premises.
Unilateral termination is possible.

ATTENTION! If a management agreement for an apartment building is concluded, the partnership voluntarily transfers all its management powers and the right to distribute finances into the hands of the management organization, reserving annual control over the implementation of the estimate.

Separation of powers

And also between the HOA itself and the management company.

The following provisions define the essence of the activities of counterparties.

UK

Provides utility services to owners of apartment buildings : enters into agreements with resource supply companies, monitors the timely and high-quality supply of water, electricity, gas, etc.
Performs maintenance and routine repairs of apartment buildings : organizes cleaning of the territory, proper operation of lighting devices in common areas and local areas, repair of elevators, utilities and electrical networks, and other necessary work.
Provides house management services : emergency services, organizes registration of residents, etc.

Partnership

The HOA must create a special commission to monitor the activities of the management company (or assign such work to the chairman of the board).
Demand that the management company properly fulfill the conditions.

IMPORTANT! A competent agreement makes it possible to unilaterally refuse to fulfill the agreement on the basis of a decision of the general meeting of owners.

In this case, she still has the opportunity to decide to choose another management company, or to organize the work on her own.

Terms of the management agreement

The effectiveness of housing and communal services management and the ability to hold accountable a party that improperly fulfills its responsibilities depends on how well the agreement is developed.

Rights of a hired manager

The HOA manager is officially accepted into the board staff, receives the salary specified in the staffing table, and regulates his work in accordance with the job description. His dismissal should be regulated by the Labor Code of the Russian Federation. Concluding an employment contract with the HOA manager guarantees the employee the following rights:

the opportunity to take part in HOA meetings;
the ability to make your own initiatives;
receive the necessary documentation about the work of the HOA.

Responsibility of the HOA manager

The employee bears material, civil and criminal liability. Material and civil liability must be reflected in the contract. Criminal liability arises in the event of negligent actions on the part of the HOA manager, when they lead to emergency situations that pose a threat to the life or health of citizens.

The HOA manager is not a plumber, electrician and accountant rolled into one. It is rather a manager who takes on administrative activities. A competent specialist in the position of HOA manager is able to put the house entrusted to him in order, organize the effective work of the staff servicing the premises and solve problems with housing and communal services.

How do you pay for utilities?

Payment for utilities within a homeowners' association can be carried out in several ways, the specific choice of which is carried out at a general meeting of owners of premises in a building managed by such a legal entity.

Payment options to consider:

non-cash payment for services received on the basis of an agreement with the partnership by transferring funds to special accounts, from which funds are subsequently transferred to resource supply organizations;
payment for services by making the necessary payment using cash payments to the partnership cash desk;
direct transfer of funds to the accounts of resource supply organizations based on the conclusion of a direct agreement between the consumer of certain public services and their suppliers.

If the transfer of funds for consumed resources and utilities is carried out to a resource-supplying organization through a homeowners’ association, the association, as a representative of the premises’ owners, is obliged to make all payments in a timely and efficient manner, and in the case of debts on the part of consumers, to carry out work aimed at repayment of such debts.

If the choice of the owners of premises in an apartment building fell on the HOA as an intermediary in the transfer of funds to resource supply organizations, special accounts must be opened in the partnership from which funds will be transferred to a specific supplier of utilities and resources. At the same time, in accordance with the provisions of the current legislation in the field of housing and communal services, the homeowners’ association does not have the right to redistribute the funds received (for example, funds that were paid for garbage removal by residents of the house cannot be transferred to electricity suppliers even if, according to article payments for electricity have accumulated a significant debt).

If the choice fell on the independent conclusion of contracts by the owners of premises with resource supply organizations, then a special procedure is provided for this option.