Homeowners' associations (housing cooperatives) do not perform work or provide services within the framework of their statutory activities for the maintenance of common property

Types of HOA services

In order to create an HOA, all it takes is the initiative of one of the owners of an apartment in an apartment building, and to join a partnership, you just need to submit an application.

However, in order for this partnership to benefit its members, it is necessary to attract the help of specialists working in different fields of activity, who will be responsible for certain aspects of establishing living in a particular house.

Today, the following types of HOA services are distinguished:

Organizational services - the provision of services that relate to various planning and production processes, ensuring the availability of the necessary information, as well as reliable control over the paperwork and daily work of the partnership. It should be noted that all internal and external relations in the HOA must be built exclusively on a contractual basis.
Supply of energy resources, gas, electricity, heat, water - this type of service involves the participation of third-party suppliers who cooperate with the HOA on the basis of relevant agreements. Such processes are controlled by representatives of both parties.
Planning and design of the territory adjacent to the house - to carry out these tasks, the employees of this partnership can attract not only their own staff, but also third-party specialists involved in the care of sports grounds, children's playgrounds, all green spaces, as well as other similar objects.
Accounting is a type of service that is required in any organization. After all, the homeowners’ association is engaged in monetary settlements on the basis of various agreements concluded with third parties, pays wages, acquires all the necessary tools, materials and equipment, pays taxes, regularly prepares income and expense estimates, financial and material reports. That is why the services of experienced specialists are required to maintain accounting records for HOAs.
HOA maintenance – involves providing the full range of work required to maintain an apartment building:
Emergency work.
Providing permanent dispatch service.
Preparing the building for use in different seasons of the year.
Carrying out technical inspections (including according to a pre-drawn schedule).
Housing services - carrying out a range of works, including improvement of the house and garden area, cleaning, as well as all necessary sanitary and epidemiological measures (checking the microclimate, garbage removal, removal of rodents and parasites).
Legal services – for this purpose it is necessary to involve a specialist of broad specialization. If the homeowners’ association employs a lawyer with a narrow specialization, then, if necessary, you need to seek help from a lawyer who works in the relevant area. As a rule, such maintenance includes the following tasks being performed by a specialist:
Maintaining personnel records and resolving various labor disputes.
Providing the necessary information, as well as its subsequent support, in accordance with generally accepted standards.
Resolving disputes between various third parties and the homeowners association.
Representing the interests of HOAs in court.
Debt collection.
Development of all necessary documents for the operation of the HOA, as well as the subsequent introduction of various adjustments to them.
Creation of a charter for the work of this partnership.
Preparation for holding general meetings on various occasions.

Repairs in the HOA

Advice from lawyers:

1. Question: can I leave the HOA and not pay fees for current repairs?

1.1. Hello Alexander Of course, you can leave the HOA, but in any case, all residents of the house will have to pay for the repair of common property.

Did the answer help you?YesNo

Consultation on your issue

Calls from landlines and mobiles are free throughout Russia

2. Where should the HOA contact us regarding repairs to the roof of an apartment building?

2.1. If major repairs are required, then to the Capital Repair Fund, and if in some places, then these are current repairs and you need to contact the Management Company.

Did the answer help you?YesNo

3. Can a HOA set a tariff for major repairs that is less than the regional tariff?

3.1. Hello, Alexander Alekseevich! In accordance with Part 8.1 of Article 156 of the Housing Code of the Russian Federation, a subject of the Russian Federation establishes a minimum

amount of contribution for major repairs. Therefore, in this case, the tariff can be set in a larger amount, but not in a smaller amount. Sincerely, A.D. Ruslan.

Did the answer help you?YesNo

4. I live in an apartment building. There is no HOA or management in the house. Companies. I repaired the roof at my own expense (I live on the top floor). The roof is a common property of the house. Can I somehow force my neighbors to return to me the money I spent on repairs?

4.1. Yes, you can recover roofing costs through legal action.

Did the answer help you?YesNo

5. Is the management company obliged to send an invoice to a legal entity for payment for the maintenance and repair of the common property of an apartment building. In 2016, a new management company came in and never issued an invoice for payment. And now I immediately filed an application for a court order for the entire period. There are about 800 management companies, homeowners associations and others in the city. Should we have found out ourselves which criminal code entered our home?

5.1. No, of course, management companies are required to conclude an agreement with residents. This is done in 2 ways, individual contracts or publication of a public offer on the website with notification of residents about the availability of such an offer on their official website.

Did the answer help you?YesNo

6. While doing renovations in the apartment, I removed the heating battery; there was no water in the system. The next day the plumber was doing some work and decided to fill the system with water. As a result, the neighbors below swam away. They drew up a report on the flooding of the apartment and handed it over to the chairman of the HOA. I did not notify the HOA that I removed the battery. The HOA, in turn, was not notified of their work. How and what to do, who is to blame? , need advice.

6.1. It's your fault, unfortunately. You had to coordinate such work with the HOA. Sincerely.

Did the answer help you?YesNo

6.2. You did not have the right to carry out this work yourself. You caused the damage and you will have to compensate. Of course, you can write a statement to the prosecutor’s office to hold the management company accountable in connection with improper notification of residents about the work being carried out; if I admit the violation, you can try to apportion the blame..

Did the answer help you?YesNo

7. The balcony from above is leaking. 16th floor of a 17-storey building. We contacted the Homeowners Association, they refuse to make repairs. The reason for the leak is poor waterproofing of the seams (in my opinion). 2 years ago I did it at my own expense, it helped but for 2 years. How to force the HOA to carry out the necessary work at their expense.

7.1. To impose a duty in court. The balcony slab is the common property of the apartment building and is subject to repair/replacement at the expense of the management organization. You can familiarize yourself with my court decision on a similar case More details >>> Sincerely, lawyer in Moscow - Vadim Igorevich Stepanov.

Did the answer help you?YesNo

8. I am an accountant for an HOA. Please tell me if it is possible to divide the bill for major repairs between two owners. On what basis? Thank you.

8.1. Hello. It is forbidden.

Did the answer help you?YesNo

9. For the summer, the HOA drains the heating system, renovation work is underway in the apartment, for some reason the heating system tap was not closed (maybe by accident, or maybe they forgot to close it) and the HOA supplied water to the heating system in July without warning, supposedly to fill the system. As a result, my apartment and two apartments below were flooded. Heating water was supplied long before the heating season. Who is to blame and who will reimburse the costs for repairs?

9.1. If there was no notification, then the HOA. you did not indicate the location of the faucet.

Did the answer help you?YesNo

10. I purchased an apartment from the developer. No one lives in the apartment and no renovations have even been made. Not all apartments in the building itself are occupied. Not all batteries in the apartment are connected, but even those that are connected are turned off by the heating valve. The apartment is not heated, but the HOA (developer) requires payment for heating which is not in the apartment. What to do?

10.1. Hello! Record the absence of heating. Submit requests every day that there is no heating for a certain period of time. Then, submit a written complaint. If they do not recalculate, then you need to go to court. Sincerely, lawyer Dmitry KVN.

Did the answer help you?YesNo

11. Can the chairman of the HOA issue fines? Impede the renovation of the apartment by preventing risers from being drained to replace worn-out radiators.

11.1. Dear Irina, St. Petersburg! FIRST: A fine is a measure of punishment, which is contained in the Criminal and Administrative Codes of the Russian Federation. Therefore, the HOA Chairman does NOT have the right to issue fines. SECOND: If the Chairman of the HOA prevents the renovation of the apartment, then you have the right to challenge the actions of the Chairman of the HOA: - in court; - appeal to the Prosecutor's Office; - or to the G-ZHI (state housing inspection), etc. Good luck to you Vladimir Nikolaevich Ufa 07/02/2020

Did the answer help you?YesNo

12. Does the HOA have the right to turn off electricity for debt for major repairs? (All other services are paid in full - the receipts reflect the absence of debt for all other services) Electricity is paid for by the HOA, and not directly to the energy supply organization, while major repairs are paid for using a separate receipt to a special account. There is no debt for electricity, there is only debt for major repairs.

12.1. Has no right. For debts, they must apply to the Court. If they do this, it will be arbitrariness on their part.

Did the answer help you?YesNo

13. Can the general meeting of the HOA determine the size, tariff for repairs of common property for the previous period and whether the HOA can carry out a complete replacement of cold water and hot water pipes as a routine repair.

13.1. For the past period, no. The types of work related to current and major repairs are indicated in Gosstroy Resolution 170, but they are advisory in nature, therefore, as the general meeting decides, so it should be.

Did the answer help you?YesNo

Consultation on your issue

Calls from landlines and mobiles are free throughout Russia

14. Is the installation of filters worth more than 300 thousand rubles the basis for the nullity of the transaction concluded by the Chairman of the HOA under the capital repair program if only the replacement of water supply pipes was agreed with the owners?

14.1. As a rule, the authority of the chairman of the HOA board to conclude a transaction, including in your case, is subject to documentary confirmation in accordance with the requirements of the law and the HOA Charter. According to the provisions of Article 149 of the Housing Code of the Russian Federation, the management of the activities of the homeowners’ association is carried out by the board of the association, which is elected from among the members of the association, is the executive body of the association and has the right to make decisions on all issues of the association’s activities, with the exception of issues falling within the exclusive competence of the general meeting owners of premises in an apartment building and the competence of the general meeting of members of the homeowners association. In accordance with paragraph 2 of Article 149 of the Housing Code of the Russian Federation, the chairman of the board of a homeowners' association acts without a power of attorney on behalf of the partnership, signs payment documents and makes transactions that, in accordance with the law and the charter of the partnership, do not require mandatory approval by the board of the partnership or the general meeting of members partnership. Thus, you first need to familiarize yourself with the HOA Charter. According to paragraph 1 of Art. 183 of the Civil Code of the Russian Federation, in the absence of authority to act on behalf of another person or when such authority is exceeded, a transaction is considered to be concluded on behalf and in the interests of the person who completed it, unless another person (represented) subsequently directly approves this transaction. For example, if a transaction was completed in the absence of approval from the board of the HOA, then the chairman of the board acted in excess of the powers established by Art. 148 Housing Code of the Russian Federation. In this case, such a transaction can be challenged.

Did the answer help you?YesNo

15. The HOA has been charging the old man illegally for major home repairs for 2.5 years now. How is the age of a tenant tracked to cancel the accrual of payments for major home repairs? If a person himself cannot go to the HOA office, how can they be reminded that they are already 80 years old and will there be a recalculation for the overpayment?

15.1. You receive a power of attorney and represent his interests. Or, on your own behalf, as someone who cares, write a statement to the prosecutor’s office about the violation. You can also help him write to the HOA (write it yourself and let him sign) and you can send them by mail on his behalf an application for recalculation and offset of what was overpaid (or refund).

Did the answer help you?YesNo

15.2. The fee will be charged. To receive compensation, you must contact Social Security. The payment will be paid with the pension. It is also worth remembering that compensation is not subject to 100% of the accrued amount, but only within the framework of the standard (regional standards).

Did the answer help you?YesNo

16. We have an HOA and the house does not have a representative; she withdrew all powers half a year ago. It so happened that the apartment above us was flooded and they refuse to pay for repairs, citing the fact that the pipe in their apartment does not belong to them, but to the HOA and they are not responsible for it. We are now looking through the documents for filing a claim and it is written in black and white that each apartment is responsible for its own segment. The question is, can we file this claim ourselves without involving a lawyer?

16.1. Hello! If you are confident in your abilities, of course you can file a claim yourself.

Did the answer help you?YesNo

16.2. Good afternoon, Ekaterina! If you are sure that you can draw up a claim in accordance with the requirements of the Code of Civil Procedure of the Russian Federation and are familiar with the intricacies of judicial paperwork, then try it. Just remember that you cannot file a claim against the same defendant twice on the same grounds.

Did the answer help you?YesNo

16.3. Hello. File a claim.

Did the answer help you?YesNo

17. The Housing Code of the Russian Federation states that establishing the amount of the mandatory contribution for current repairs is the COMPETENCE of the general meeting of HOA members. Can the chairman of the HOA personally set a fee for current repairs without discussing it at a meeting of HOA members? In general, the concept of “competence” in the legal sense contains “duty”, that is, since this is the competence of the assembly, then in the legal sense is it also the responsibility of the assembly?

17.1. The chairman of the HOA does not have the right to independently set the amount of contributions for current repairs. This is precisely the responsibility of the general meeting. However, if the general meeting for any reason did not accept the amount of the contribution for current repairs, then the amount of the contribution is charged in the amount established by the municipality.

Did the answer help you?YesNo

18. The HOA filed a lawsuit against me in the magistrate’s court for non-payment of housing and communal services. payments. 34 thousand.. I filed an objection. She presented the acts of living to the court. inspections about non-compliance condition of the house and asked the court to deduct the payment for soda. and repairs and maintenance. Result: the magistrate ordered to pay the entire debt, a fine of 4 thousand and the state. vulgar And all court costs. Was the judge's decision legal in the acts of living. inspections about non-compliance Sod. common property.

18.1. You need to appeal the magistrate's decision on appeal. You can file an appeal immediately after the decision is made, waiting 5 days until the reasoning part of the decision is ready.

Did the answer help you?YesNo

19. In the HOA, the residents of the floor replaced the vestibule door (wooden with metal), installed locks, and installed handles. Allegedly with the permission of the previous management of the HOA (there is no transfer certificate). Who is responsible for maintaining (repairing) the door?

19.1. Everything outside the apartments is the common property of the house and the HOA is responsible for illegal redevelopment.

Did the answer help you?YesNo

20. I am a pensioner, I left for the dacha back in April. Today they called from the HOA and asked to come, allegedly they turned off the hot water in the pipes and I flooded the neighbors from the 16th floor and up to the 4th floor. What should I do in this case? What should my actions be? How much will the repair cost me? I repeat that I am a pensioner and have no money, I don’t work, I am on Pension. I am 63 years old. The children cannot help because they lost their jobs due to the coronavirus.

20.1. Come and look at the damage caused to each flooded apartment and come to an agreement without going to court. If you don’t reach an agreement, they will collect something through the court and deduct it from your pension. If you turned off the water, how could you flood your neighbors? Something is getting dark. However, it is necessary to go.

Did the answer help you?YesNo

To the wives on the top floor. When it rained, the balcony leaked. Water flowed down the walls and from the holes in the ceiling where the light bulbs were built in.

It is known that the municipality is responsible for the condition of public roads.

The owner inadvertently paid for the capital on a special account. repairs in the HOA are more than expected. How to return money correctly.

I live in an apartment; our house is owned by an owners' association (HOA).

I am not satisfied that the HOA, in addition to fees for current and major repairs, constantly charges me some other amounts, supposedly for the maintenance of common building equipment.

In our HOA, as often happens, there are defaulters, especially at the present time.

The neighbors' battery is connected to the heating riser in my apartment, this battery only partially warms up and the neighbors think

I am a member of the HOA audit committee. The HOA has a reserve fund. Is it possible to include savings from the item “target contribution for façade repairs” in the reserve fund at the end of the year?

Tell me, is it legal to charge a fee for major repairs for April 2020 if I live in a house managed by an HOA?

I am not a member of the HOA, they are asking me to pay for major repairs. The house is not included in the major renovation program.

Resolution of the Governor of the Moscow Region. The fee for major repairs has been canceled from 01.

Requirements

The homeowners association servicing the house is obliged to ensure that in subordinate apartment buildings the rules and various requirements stipulated by current legislation are strictly observed in order to ensure the safe living of all residents. And violation of such rules often leads to fines.

Towards labor protection

People who perform maintenance work on various systems in apartment buildings and keep them in good condition are sometimes exposed to danger. Therefore, it is necessary to ensure labor protection, as well as compliance with safety regulations for specialists and craftsmen.

In this regard, the HOA needs to develop standard instructions and maintain special reporting logs. In addition, an employee should be appointed who will monitor compliance with labor safety rules.

Fire safety

In apartment buildings, special attention must be paid to ensuring fire safety and strict adherence to the following rules:

There should be no debris on external stairs.
It is necessary that external stairs are always in good condition.
Smoking should only be done in designated areas.
It is prohibited to store flammable substances indoors.
It is prohibited to make fires near houses.

Thanks to constant monitoring of activities, as well as the daily work of the HOA, it is possible to ensure the completion of all tasks that are necessary for the normal and safe living of residents in apartment buildings.

If you find an error, please select a piece of text and press Ctrl+Enter.

Drawing up an agreement with the homeowners association

The homeowners association has the right to enter into repair agreements with both contractors and premises owners:

In the first case, contractors carry out repairs of common property , and the partnership checks the quality of the service provided and makes payment.
In the second, according to the law, the HOA has the right to provide services to the owners of the premises . This clause can be interpreted as the right to conclude agreements between the partnership and the owners for carrying out repair work.

Since HOAs often hire specialists under an employment contract for repairs and other types of work in order to maintain a residential building in proper condition, such legal relations (repair of the owners’ premises under a contract by full-time employees) of the subjects are more than logical.

A member of the partnership cannot carry out repairs at the expense of the HOA . He can use the funds of the HOA only for the purpose of preventing damage to the common property.

HOA is not a housing office

In theory, an HOA is not a small housing office, not a small housing office on the scale of one house. Of course, if the owners of the premises have the necessary qualifications and experience and want to manage and carry out house maintenance work themselves or hire staff, then they can do this. But this method of maintaining a house is not effective from an economic point of view, just as any natural farming in the modern world is not effective. Many housewives know how to bake and sew, but we still buy bread and clothes in stores. People in the house do not have to be professionals in the management, maintenance and repair of real estate. There are specialists for this. And the HOA is a way to unite to order any work and service needed for your home from professional performers. Naturally, for money. This will be better and, in a competitive environment, almost certainly cheaper than trying to do everything yourself. Although, I think, maintaining a house is not a case when you need to chase the cheapest. The main thing is that the money brings maximum results, is spent thoughtfully and leads to a visible improvement in the home and living conditions in it. When people see their money working for them, they are often happy to invest their money in further improvements.

The material was prepared with the assistance of Irina Gentsler, head of the housing sector of the Institute of Urban Economics Foundation

Galina Pisarchik

Advantages and disadvantages

These changes bring both many pros and cons. First of all, in order to carry out major repairs, you do not need to wait for municipal authorities to raise funds for its implementation, and now the HOA carries out major repairs of the house on its own. Thus, this speeds up the process significantly. The homeowners association has the right to interact with the regional operator at one time, but in any case can withdraw its funds and transfer them to a separate account. That is, such actions give freedom and some strength to homeowners, the opportunity to carry out major repairs of the association’s house as efficiently and quickly as possible.

At the same time, the formed HOA may represent the opinion not of all the owners of the house, but of a limited number of participants in this partnership, which to some extent infringes on the rights of others, and they are full owners of the premises.

Thus, we can summarize that the amendments have a dual role, and in which direction they will turn depends only on the concentration, community, community agreement and compliance with the laws.

Currently, the tax service is sending out letters to homeowners' associations and housing cooperatives demanding that they provide explanations confirming the absence of taxable objects in their activities of maintaining common property and collecting utility bills. This argumentation can be used by housing associations when preparing responses.

Works and services are related to implementation. According to paragraph 4 of Art. 38 of the Tax Code of the Russian Federation, work for tax purposes is recognized as activity the results of which can be realized to meet the needs of organizations and (or) individuals. According to paragraph 5 of Art. 38 of the Tax Code of the Russian Federation, a service for tax purposes is recognized as an activity whose results do not have material expression and are sold and consumed in the process of this activity.

In both definitions, the necessary attribute is implementation, i.e. sales procedure. Therefore, if there is no sale, then for tax purposes there is no work or service.

What is implementation. We find the answer in Art. 39 Tax Code of the Russian Federation. According to paragraph 1 of this article, sales are recognized as the transfer on a paid basis of ownership of goods, the results of work performed by one person for another person, and the provision of services for a fee by one person to another person.

The key element here is the presence of two persons. One of them is the customer (buyer), and the other is the performer (seller). The implementation is carried out on the basis of an agreement between them (see also Articles 454, 702, 779 of the Civil Code of the Russian Federation).

There are no sales in the relationship between the HOA (housing cooperative) and the owners of the premises.

The fact is that an individual owner cannot act as a customer for the maintenance and repair of his share of the common property, since he does not have the right to allocate his share in kind (Article 290 of the Civil Code of the Russian Federation; clause 4 of Article 37 of the Housing Code of the Russian Federation). Therefore, if, for example, some part of the common property is being repaired or serviced (elevator, plumbing, etc.), then it is impossible to answer the question for which specific owner (“another person”) this is being done: this work is being performed for everyone owners of premises in an apartment building. An HOA agreement with an individual owner for the maintenance of his share in the common property is, in essence, a pointless document. Acts of execution of such agreements concluded with each individual owner will either not be drawn up at all, which is unacceptable, or they will have to be stamped as a carbon copy, which is meaningless and illegal. An agreement can only be concluded for all common property in an apartment building. That is, another person in the agreement can be a representative of all owners. But such a representative, according to the Housing Code (Part 8 of Article 138 of the Housing Code of the Russian Federation) is the HOA itself (or, by analogy, the housing cooperative). It turns out that the HOA (housing cooperative) is the customer and it is also the contractor, i.e. another person, and, consequently, signs of sale corresponding to paragraph 1 of Art. 39 of the Tax Code of the Russian Federation, absent.

This evidence means that, within the framework of its main statutory activities, the HOA (housing cooperative) does not perform any work for the owners of the premises and does not provide them with any services. Consequently, funds for the maintenance and repair of common property received by the partnership (cooperative) from the owners of the premises cannot be recognized as revenue from the sale of work (services). These are contributions provided by law and the charter for the maintenance and repair of common property, which have nothing to do with commercial activities. It is not work or services that are carried out, but statutory duties that are non-commercial in nature.

All this proves the lack of implementation.

Let us draw attention to the fact that the proof was carried out without mentioning the applied taxation regime (general regime, simplified tax system) and the owner’s membership in the HOA. This means that the economic nature of the contributions does not depend either on the adopted taxation regime or on whether the owner is or is not a member of a partnership or cooperative. It is essential that this evidence in no part goes beyond the scope of current legislation.

Since there is no implementation, there is and cannot be any work or services.

Thus, we come to an interesting conclusion:

In an apartment building managed by a HOA (housing association), contributions from owners are not taxed, not because this is income that is not taken into account when determining the tax base in the sense of clause 2 of Art. 251 of the Tax Code of the Russian Federation, but simply because they do not form an object of taxation. This should be recorded in the charters of HOAs and housing cooperatives and in their accounting policies.

Therefore, in the accounting of the HOA (housing cooperative), contributions of all owners for the maintenance and repair of common property (that is, contributions determined by the cost estimate) should be reflected as targeted revenues.

2. Utility payments received by the owners of the premises to the HOA settlement account do not form an object of taxation

Our main argument is that not a single commission, not a single inspector will find in the activities of our HOA a single sign that the HOA provides any public services to the residents of the building, namely:

1. The HOA does not have any production facilities (heating points, boiler rooms, water wells, pumping devices, electrical substations) with the help of which it is possible to provide public services.

2. In the HOA staffing table there is not a single employee who has the right and ability to participate in the production of public services. The HOA does not have a license for this type of activity.

3. The production of any service is accompanied by the expenditure of labor, material and financial resources. In the accounting records of our HOA you will not find a trace of the expenditure of such resources on the production of utilities.

4. From a theoretical point of view (Article 38 of the Tax Code of the Russian Federation), any service is sold and consumed simultaneously with its production. This means that the resource supplying organization provides utility services directly to consumers. The HOA does not participate in the procedure for the sale of utilities.

5. Indirect evidence that utility payments do not form the income of the HOA is the Resolution of the Plenum of the Supreme Arbitration Court dated October 5, 2007 No. 57, which states that “HOA do not submit tax returns and do not calculate the amount of VAT on transactions related to the provision of residential premises with utilities services."

Thus, it is unlawful to consider utility payments received by the owners as revenue from the provision of utility services. These funds are intended to pay for utilities provided by resource-supplying organizations. That is, for the HOA, utility payments are of a transit nature; they form counter-obligations of the HOA to the owners to use the funds received strictly for their intended purpose.

Therefore, in the accounting of the HOA, the accrual of utility bills is reflected in an operation that does not use income accounts:

Debit account 76, subaccount “Settlements with owners”, Credit account 76, subaccount “Settlements for utility bills”.

Homeowners' associations (housing cooperatives) in their relations with the owners of premises act on the terms of representation (part 8 of article 138 of the Housing Code of the Russian Federation). This fully applies to transactions with utility bills. Amounts of utility payments can be considered as funds from principals sent to an attorney (partnership, cooperative). Accordingly, these amounts are not taken into account when determining the tax base for income tax (subclause 9 of clause 1 of Article 251 of the Tax Code of the Russian Federation).

communal payments
implementation
for tax purposes
maintenance and repair
house
HOA
Housing cooperative
owner
funds
premises owners