Types of ownership of real estate
Before proceeding to counting votes at the OSS, it is necessary to determine the types of ownership of premises in the apartment building. Since the correct counting of votes at the general meeting depends on the type of ownership of real estate.
For example, if there is not one, but several owners in an apartment, then each of them will have the right to vote in proportion to the share in the common property right. Therefore, if from some apartment only one owner out of two or three shareholders was present at the OSS, then his vote cannot be counted for all the owners of this apartment if he does not have a power of attorney from these owners. Because of this, often if votes are counted incorrectly, a quorum may or may not be reached, which can subsequently be challenged in court. In this case, the meeting will be declared invalid.
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Real estate can belong to owners on the basis of joint and common shared ownership .
According to Article 244 of the Civil Code of the Russian Federation, property owned by two or more persons belongs to them under the right of common ownership. Common ownership of property is recognized as shared ownership, unless the law provides for the formation of joint ownership of this property.
In accordance with clause 1 of Article 245 of the Civil Code of the Russian Federation, the shares of participants in the right of common ownership of real estate can be determined by their agreement or on the basis of law. If the size of the shares cannot be determined by the listed methods, then they are recognized as equal.
It is interesting that the Civil Code of the Russian Federation does not specify in what terms the size of shares in the right of common ownership of real estate is determined. However, from the precedents of law enforcement practice, a point of view emerges that allows the shares of participants in common shared ownership of real estate to be expressed both in fractions and as percentages (Resolution of the Federal Antimonopoly Service of the Moscow District dated 03/07/2003 No. KG-A40/944-03).
A similar judgment is contained in clause 5.18 of the Procedure for filling out the form “Information on the inventory value of real estate and other information necessary for calculating taxes” (Order of the Federal Tax Service dated February 11, 2011 No. ММВ-7-11 / [email protected] ).
The right of ownership and other real rights to real estate (restriction, emergence, transition and termination) are subject to state registration in the Unified State Register of Authorities by the bodies that carry out state registration of rights to real estate and transactions with it (Article 131 of the Civil Code of the Russian Federation).
In accordance with the Rules for maintaining the Unified State Register, the size of the share in the right of common ownership must be indicated (Order of the Ministry of Economic Development No. 765 of December 23, 2003). This rule specifies the indication of the size of the share in the form of a regular simple fraction.
Based on this rule, some courts overturn decisions of lower judicial bodies, in which the size of the share in the right to real estate is indicated as a percentage (resolution of the Fourth Arbitration Court of Appeal dated September 16, 2011 No. 04AP-3334/07).
As can be seen from the examples above, indicating in the contract the size of the share in the right of common ownership in the form of interest sometimes leads to legal disputes. Therefore, it is more expedient to indicate in the exchange agreement the size of the shares of participants in common shared ownership in the form of proper fractions.
At the beginning of 2020, Rosreestr will post information in the Housing and Communal Services GIS from the State Real Estate Cadastre and the Unified State Register
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There is also joint common ownership in the right of common ownership of real estate, when several people together and at their own discretion can use and dispose of the property that belongs to them on a trust basis. As a rule, joint ownership of real estate arises among spouses (Article 256 of the Civil Code of the Russian Federation) if it was acquired during marriage.
There is another option for joint ownership of real estate, which arises when living space is privatized by people living together, regardless of their family ties. The privatization agreement form contains a column that allows owners to determine what kind of ownership they want to transfer their property into: joint or shared.
How to count the votes of owners on the OSS
The counting of votes of owners at the OSS, as we wrote above, depends on the type of ownership of real estate. Let's consider the counting of votes at a general meeting when voting among participants in common joint and shared ownership.
Instructions for conducting OSS in the form of in-person and absentee voting
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Voting of apartment building owners: vote counting
Our resource went through this procedure and generated the following list of definitions that are extremely important to consider for the understanding of the essence of the phenomenon being considered today:
- An apartment building (MKD) is a residential building that includes two types of territories: private property of the residents of this building (individual apartments) and common property distributed among all residents of this building and under their supervision (entrances, elevators, access areas and etc.).
- The General Meeting of Owners (GMS) is an organized meeting of all residents of an apartment building or the majority of them, aimed at resolving all issues related to the maintenance of their common property.
- Voting is the only form of decision-making at the OSS, the procedure for which is regulated by the legislation of the Russian Federation and cannot be violated.
Counting votes at OSS under common joint ownership
Participants in common joint ownership , unless otherwise provided by an agreement between them, jointly own and use common property (Part 1, 2, Article 253 of the Civil Code of the Russian Federation). Any of the owners can dispose of joint property with the consent of the others, regardless of which of the participants makes the transaction.
The courts believe that when counting votes at the OSS, the votes of all participants in the common joint property (by agreement between them) must be taken into account if at least one of them took part in the general meeting. Thus, one owner, on the right of common joint ownership, acts with the consent of all its participants. Therefore, his vote will be considered as 100% presence of the owners of a certain residential premises in the apartment building.
There is an excerpt from the Appeal ruling of the Samara Regional Court dated 04/11/2013 in case No. 33-3425/2013: “If the premises are in common joint ownership without determining the shares of several persons, then by agreement between them their interests are represented on the basis of a duly executed power of attorney one of the owners, who signs the voting ballot (sheet), or each owner.”
But if there is no agreement between the owners on the right of common joint ownership of real estate on the joint use and disposal of property or a properly executed power of attorney, then the vote of one owner cannot be counted in making a decision based on the entire area of the apartment.
There is an excerpt from the ruling of the Moscow Regional Court dated January 12, 2012 in case No. 33-566/2012 (33-29450/2011: “From the case materials, it is clear that apartments: N are joint property, and one of the owners of these took part in the voting residential premises, despite this, his vote was counted based on the entire area of the apartment. Meanwhile, the voting persons did not have agreements, agreements and contracts with each other on the management of common property, provided for in the provisions and Articles 244-247 of the Civil Code of the Russian Federation, as well as those who voted the apartment owners did not have powers of attorney from other owners, and therefore, according to the well-founded conclusions of the court, the votes participating in the voting were less than 50%.
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Step 1 - Loading the register into the calculator Log in to your personal account on the website www.sobraniedoma.ru using your e-mail and password. Click on the “Load Registry” button and select the registry file.
Step 2 - Initiating a new meeting If you want to start a new meeting, then in the window that appears after loading the registry, click the “Initiate meeting” button. Fill in the required meeting parameters and click the “Initiate meeting” button.
Step 3 - Entering Owner Votes If you have already entered votes and saved the register, you can download this register again and continue entering votes. To do this, in the window that appears after loading the registry, click the “Continue entering votes” button. To enter owner votes, you need to select a date for entering votes. The date for entering votes can only be selected for owners whose full names have been entered.
Step 4 — Uploading voting results Click “Voting Results” to save the voting results in PDF format.
Step 5 — Saving the file with the registry Click the “Save registry” button to save the voting results to a file. If you do not save the registry, then after closing the calculator all your data will disappear!
detailed instructions on how to use the OSSP Voting Calculator.
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Step 1 - Download the register of owners To successfully use the service, you need to register and order the current Register of owners of all premises in your building for holding general meetings. Read why this is important here. To do this, fill out the registration form by clicking on the [ORDER REGISTER] button.
After registration, an email with an access password is sent to the specified email. You can now go to your “Personal Account” and upload the register for your home to the OSSP Votes Calculator by clicking on the appropriate button. Next, information from your working file will be loaded into the Voting Calculator: the register of owners, data from the last vote and the agenda of the last meeting.
After making payment, the customer, along with the register, receives “Step-by-step instructions for holding a general meeting” by email. Follow the detailed instructions and recommendations in the instructions.
Step 2 - Initiate a meeting (new vote) If you are starting a new meeting, then click on the [Initiate meeting] button and fill out the meeting initiation form and upload the meeting agenda by clicking on the [Upload agenda] button. You can also print the Decision of the initiative group, the Bulletin form, as well as other documents (available only for those who ordered the “Full package of documents” option). Next, in the “Vote Calculator” all decisions of the owners and results from the previous vote will be deleted.
If you want to continue entering votes for the current meeting, then click on the [Entering votes of owners] or [Continue entering votes] button
Step 3 — Entering the votes of the owners To enter the next decision of the owner (vote) into the calculator: 1. In the “Search:” cell, enter the apartment number or last name of the owner, select it and then a green line with the owner’s data will appear. 2. Click on the empty cell (Date column) and select the date the newsletter was received. The calculator will automatically put “FOR” votes on all issues (columns 1,2,3,...) 3. By clicking on the appropriate cells, correct the decisions on the desired issue to “AGAINST” or “Abstain”, and also in certain cases - “NOT valid” "
Also, by clicking on the owner’s full name, you will be able to enter information about this owner into the appropriate cells of the “Edit Owner Card” card, including his personal contact and other information and, if necessary, information about the owner’s representative. Don't forget to click on the blinking [Save changes] button. You can also print out the “Electronic Communication Agreement and Consent to OPD” (available only for those who ordered the “Full Package of Documents” option) for further correspondence by email and phone.
Step 4 — Download the voting results To generate a summary statement of voting results, a quorum of the meeting must be reached. In order for the meeting to obtain a quorum, enter the votes of the owners (more than 50% of all votes of the owners of the premises).
If the quorum of the meeting is “Existent” and the meeting is “Eligible”, then click on the [Voting RESULTS] button and then, after filling out the form in the card, click on the [Download RESULTS] button. Next, a file is automatically created in pdf format - “Summary Statement of Voting Results” (Protocol of the Counting Commission). This file can either be printed, placed in the GIS Housing and Communal Services and sent to OGZHN.
Step 5 — Saving the register of owners At any time, you can save changes to your register by clicking on the [Save register] button. In this case, a working file will be created with a new date containing all the changes you made. ATTENTION! Your data is not stored on our server. Don’t forget to save the changes to your computer – the blinking [Save Registry] button will remind you of this.
even more detailed instructions on how to use the OSSP Voting Calculator.
Counting votes at OSS with common shared ownership
When counting the votes of participants in common shared ownership, the number of votes of these owners must correspond to their shares in the right to living space. For example, the living space is 45 sq.m. and only one of the owners with a ⅓ share of this premises in the apartment building voted on the OSS. Then this owner has only 15 votes, which must be taken into account when counting the votes.
For example, the Saratov Regional Court, in its appeal ruling dated July 27, 2012 No. 33-3710, came to the conclusion that due to the lack of a quorum, the OSS was declared invalid for choosing a method of managing an apartment building. The court also referred to the fact that some voting participants are the owners of only 1/2 shares in the right of common shared ownership of living space in the house. But, as it turned out, when counting votes at the OSS, their votes were counted without taking into account shared ownership. This is illegitimate and incorrect.
Another judicial precedent established that when counting votes at the OSS of the owners of several residential premises, their votes were taken into account as the sole owners of residential premises in the house . But according to Rosreestr, these apartments were in common shared ownership. At the same time, the remaining participants in the common shared ownership in the specified residential premises did not take part in the voting.
Based on the foregoing, the court came to the conclusion that the votes of these persons when calculating the results of the OSS voting should have been taken into account in proportion to the shares of the voting owners in the right of common shared ownership of the living space (appeal ruling of the Murmansk Regional Court dated August 15, 2012 in case No. 33-2032).
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Forum burmistr.ru - forum about housing and communal services (management of apartment buildings)
Taking into account these nuances of the procedure, it is important for its initiator to take care of the legality of the activities being carried out, otherwise the collection will be appealed and useless.
- It is worth considering that minors, even if they are the owner of the apartment building, are voted for by their parents.
- It is important to draw up all protocols, notifications and registers of the OSS in the form established by law. This is discussed in more detail in the orders of the Ministry of Construction and Housing and Communal Services.
- Any decision made at the OSS MKD can be challenged in court by persons interested in it. The main thing in this procedure is to have significant evidence indicating the incompetence and illegality of the votes received.
Summary
Therefore, it is very important to correctly count the votes of the results of the general meeting of owners . The presence of a quorum at the meeting or its absence directly depends on this. Consequently, the outcome of the general meeting of owners also depends.
That is why we recommend that management organizations check documents confirming the ownership of real estate before the general meeting and enter this data into the register of OSS participants. Then you will know exactly what percentage of votes to take into account based on the area of a particular room. And there will be no claims against you from the owners or regulatory authorities. The meeting and the decisions made at it will be absolutely legitimate.
You can organize and hold a legally competent general meeting of owners of premises in an apartment building, and prepare a register of owners for it using the “OSS 100%” service, which will automatically count the votes of the owners. Find out how the service works.
Search portal for homeowners' associations and councils of the microdistrict "our house"
Decisions on pressing issues are made only after they have been discussed by the entire meeting and the advisability of putting them forward for consideration has been determined. As you can see, the meeting and voting procedure is not so difficult to implement. The main thing in the process of conducting them is to comply with the norms of these events defined by law, which are covered in detail in today’s article.
- The counting of votes received when residents vote at the OSS is carried out directly using the compiled register and its data.
