The possibility of paying remuneration to members of the house council and the chairman of the council is prescribed in Part 8.1 of Art. 161.1 of the Housing Code of the Russian Federation:
The general meeting of owners has the right to decide on the payment of remuneration to members of the MKD council, including the chairman of the council. Such a decision must contain the conditions and procedure for paying the specified remuneration, as well as the procedure for determining its size.
All. Nothing more has been written. Therefore, in practice, the decision of residents on remuneration of council members or, most often, one of its chairman leads to continuous problems for management companies.
Regarding the remuneration, you can also look at the Letter of the Ministry of Construction of Russia dated September 29, 2015 No. 32395-OG/04:
The Ministry of Construction of the Russian Federation believes that it would be best if the management agreement itself defines additional responsibilities of the management organization acting on behalf of the owners: ▪ to charge and submit for payment in payment documents to the owners a contribution for the payment of remuneration to the members and chairman of the board in the amount established by the general meeting; ▪ at the frequency prescribed by the general meeting, pay the money actually received under this article to the members and the chairman of the council of the MKD.
How is the chairman elected?
The chairman of the apartment building is elected at a general meeting of residents. It is important that at least half of all owners of an apartment building take part in the meeting. Otherwise, a repeat meeting will have to be held.
It is necessary to notify residents of the upcoming meeting by registered letters, unless otherwise provided by the decision of the general meeting of the apartment building. For example, at the previous meeting, the owners determined that notices were posted on publicly accessible stands in the local area.
Several candidates are selected from among the members. It is possible to prepare ballot papers or determine another method of voting. The elections should be considered valid if at least 50% of apartment owners voted. The winner is determined by counting votes. When the chairman of an apartment building is elected, his rights and obligations (Article 161.1 of the Housing Code of the Russian Federation) are documented. The elected person gets acquainted with his key functions under his signature.
If homeowners have not independently elected the council and chairman of the apartment building, then the management company or local government has the right to initiate the procedure. In such a situation, the appointed persons may be dishonest in performing the work and show loyalty to the management company, and not to the residents.
About social security contributions
⚫ Resolution of the Seventh Arbitration Court of Appeal in case No. A45-37009/2019 The manager challenged the decision of the Pension Fund of the Russian Federation in court. This decision was to hold the payer of insurance premiums liable for violating the legislation of the Russian Federation on insurance premiums. The court declared it invalid:
▪ the amounts paid by Liga LLC to individuals - chairmen of the Council of MKDs are not subject to insurance premiums and are not subject to inclusion in the base for calculating insurance premiums ▪ no facts have been established of concluding an employment contract or a civil contract with the chairmen, the subject of which is the implementation works or provision of services for society. ▪ At the same time, the object of taxation with insurance premiums is payments and other remuneration accrued by payers of insurance premiums in favor of individuals under employment contracts and civil contracts, the subject of which is the performance of work or the provision of services. ▪ The chairman of the board is not an employee of the company servicing the house, does not perform work for it, does not provide services to it, he performs supervisory and representative functions to supervise the quality of the company’s work, provision of services, and representation of the interests of the owners in relations with such a management company .
⚫ Case No. A71-169/2019, Arbitration Court of the Udmurt Republic The management company through the court declared the decision of the tax inspectorate illegal
on bringing to responsibility for committing a tax offense. The Federal Tax Service decided that the Criminal Code avoids calculating insurance premiums from the amounts of payments to individuals who are chairmen of councils. Agency agreements were concluded between the chairmen and the management company, and there were also decisions of general meetings:
The court, as in the example above, found that there is no question of concluding an employment or civil law contract with individuals.
⚫ Resolution of the Arbitration Court of the Volga District dated April 16, 2019 in case No. A72-11675/2018 Canceled the decision of the tax authority
on the accrual of arrears, fines and penalties. From the minutes of the general meetings it followed that the chairman of the MKD council was elected for each house, and an incentive was established for the chairman for the work he performed in the form of a monthly payment. The source of incentives is determined to be payments from owners in the amounts established in such protocols (the amounts are not indicated in court decisions). The court again pointed out that the money collected by the company from the owners and subsequently transferred to the chairmen of the MKD board does not constitute payment by the company for the work performed for it or the service provided to it.
⚫ Resolution of the Arbitration Court of the Ural District dated October 3, 2018 in case No. A76-3959/2018 The decision of the tax authority was also declared illegal
. The owners approved the amount of the monthly contribution to pay remuneration to the chairman of the MKD board in the amount of 25 rubles. for one living space. They also instructed the management company to accrue and issue for payment in payment documents to the owners of the premises a monthly contribution to pay remuneration to the chairman of the board of the apartment building with the subsequent transfer of amounts to him, taking into account the withheld personal income tax.
⚫ Resolution of the Arbitration Court of the East Siberian District dated January 29, 2020 N F02-7356/2019 in case N A33-9366/2019 The management organization challenged the decision of the Pension Fund of the Russian Federation, which accrued additional amounts of arrears, penalties and fines. The Fund believed that the company was obliged to calculate and pay insurance premiums from remunerations paid to the chairmen of the boards of MKD at the expense of the owners. The courts found this opinion erroneous:
▪ transfer by the management company of remuneration to the chairmen of the boards of MKDs under agency agreements at the expense of the owners’ funds does not form an object for the enterprise to be subject to insurance premiums.
Salary on the MKD council
By decision of the general meeting of residents, the chairman and members of the MKD council are awarded remuneration for their work - in the form of monthly payments (salaries) or quarterly or annual bonuses based on work results.
The procedure for making payments, the amount and frequency of remuneration must be documented - in the minutes of the general meeting. The owners determine the sources of remuneration for members of the SMKD at a general meeting of residents of the building.
Claims from other regulatory authorities
Management companies most often manage to win cases. But it’s still an extra hassle for them. ⚫ Decision of the Supreme Court of the Chuvash Republic dated June 20, 2017 in case No. 21-324/2017
The courts declared it unlawful to bring the head of a management company to administrative liability
under Art. 14.6 of the Code of Administrative Offenses of the Russian Federation (violation of pricing procedures) in the form of a fine of 50,000 rubles. Residents decided to pay compensation to the chairman and members of the MKD council for performing public duties in the amount of 20 rubles per apartment monthly. The fine was imposed for the fact that the company collected the approved fee, although the protocol, according to Rospotrebnadzor, did not define the procedure and conditions for payment of the remuneration, and there was no indication that the remuneration was paid by showing it in receipts for payment of housing and communal services. The court did not agree with this. He took into account the content of management agreements, according to which, on behalf of the apartment owners, the Management Company undertakes to accrue and submit for payment in payment documents the owner of the premises in an apartment building a contribution to pay remuneration to the members and the chairman of the council of the apartment building in the amount established at the general meeting of the owners of the premises.
⚫ Ruling of the Supreme Court of the Russian Federation dated 02.19.2019 in case No. A27-23844/2017 This was a dispute with the State Housing Property Inspectorate, which, during an audit, revealed that the remuneration to the chairman of the board of apartment buildings is accrued from the personal account of the house from funds received from the owners as maintenance fees and repairs. The first and appellate instances supported the inspection. They considered that such a payment could be accrued to the owners only in accordance with the agreement concluded between them and the contractor and on the basis of a separate payment document. The Arbitration Court of the West Siberian District overturned these decisions and declared the order illegal: ▪ the minutes of the general meeting instructed the management company to enter into an agency agreement, according to which it, on behalf and in the interests of the owners, must transfer money from the personal account of the house to the chairman of the board of MKD in the amount of 7,000 rubles monthly:
▪ the agreement was concluded, on the basis of it the company paid what the general meeting said. ▪ the actions of the management company do not contradict paragraph 8.1 of Article 161.1 of the Housing Code of the Russian Federation. The minutes of the general meeting and the agency agreement were not challenged by anyone or declared invalid.
About the fact that the money was taken from maintenance and repairs, the court wrote: ▪ “The inspectorate believes that the remuneration to the chairman of the MKD council is collected illegally from the item “maintenance and repair of common property.” According to the inspectorate, the management company should have included the remuneration to the chairman of the board of MKD in the payment document as a separate line. Meanwhile, housing legislation does not contain provisions on how the calculation and payment of remuneration to the chairman of the council of apartment buildings should be formalized.”
▪
“Checking the expenditure by management organizations of the funds they collect from owners as fees for the maintenance of residential premises does not fall within the competence of licensing control bodies in the field of activities related to the management of apartment buildings. Contrary to the inspector’s arguments, the payment of remuneration to third parties from funds received by the management organization for the provision of maintenance and repair services does not mean exempting it from performing a list of specific works and services for the maintenance of residential premises previously agreed upon with the owners, or from complying with the conditions for their implementation and provision.” There is another practice, more on that below.
How to hold a meeting of owners to elect a house council
If the management believes that for effective management in the house, the council of the apartment building and its chairman are needed, and the owners and the municipality are in no hurry to choose them, the organization itself can initiate a general meeting in the house on this issue.
1. Initiate the OCC by formulating agenda items and proposing a list of candidates. The initiator must determine the date, place and form of the OSS (Part 5, Article 45 of the RF Housing Code).
The management organization may not initiate the meeting itself, but, for example, offer the preparation of an agenda to an initiative group of owners. The initiative group will draw up a list of candidates and proposals for the revision of the Regulations on the MKD Council. In this case, the role of the Managing Director is to provide the group with an up-to-date register of owners and help with organizing the meeting (Part 2, 3.1, Article 45 of the RF Housing Code).
2. Inform the owners about the OSS no later than 10 days before the date of its conduct.
The message should be delivered personally against signature or sent by registered mail, unless a decision was previously made to notify the owners in another way (Part 4 of Article 45 of the Housing Code of the Russian Federation).
3. Conduct an OCC depending on the form stated in the agenda: in person, in absentia or in the form of absentee voting (Article 44.1 of the RF Housing Code).
It is important that, regardless of the form of holding, a quorum is collected: owners with more than 50% of the total number of votes in the house participate in the voting (Part 3 of Article 45 of the Housing Code of the Russian Federation). The number of votes of the owner is proportional to his share in the right of common ownership of common property in the house (Part 3 of Article 48 of the Housing Code of the Russian Federation).
In addition to the selection of the chairman of the OSB, the secretary and the counting commission, the following questions must be brought up for discussion and voting:
- approval of the number of MKD council members;
- selection of MKD council members in an approved number;
- election of the chairman of the MKD council from among the members of the MKD council;
- approval of the Regulations on the MKD Council;
- approval of the procedure for communicating the results of the general meeting to the owners.
You can also include additional issues on the agenda: the powers of the MKD council and its chairman and the issue of their remuneration (clause 7, part 5, clause 6, part 7, part 8.1, article 161.1 of the RF Housing Code). Or hold a separate general meeting on these issues.
4. Summarize the results by counting the number of votes on each issue put to vote.
The decision to select the MKD council and its chairman is considered positive if at least 50% of 1 vote is cast “for” from all votes of the owners participating in the OSS. The decision to vest the chairman of the MKD council with powers is made by at least 2/3 of the votes of the total number of all votes of the owners in the house (Part 1 of Article 46 of the Housing Code of the Russian Federation).
We invite you to read: Legality of turning off gas in an apartment building
5. Notify the owners of the decision made no later than 10 days after the OSS. The message must be placed in a place in the house accessible to all owners (Part 3 of Article 46 of the Housing Code of the Russian Federation).
6. Send the original documents to the GZhN body and place their copies in the State Information System for Housing and Communal Services (part 1, 1.1 of article 46 of the Housing Code of the Russian Federation).
Dissatisfaction of other owners
It results in complaints to housing inspectors, as in the examples above, or in private disputes. ⚫ Case No. 2-493/19 Pervorechensky District Court of Vladivostok A resident went to court with a claim to challenge the decision of the general meeting, to exclude the line “Remuneration to the chairman of the house council” from the receipt. There were also demands “not to consider her a debtor” and to collect 20,000 rubles from the company. for moral damage. The justification for the claim was frankly weak, for example: “there are no individual contracts with each resident; The contribution of money must be voluntary.”
In addition, the claim was filed not against the initiator of the meeting, as is done when challenging the decisions of the meeting, but against the management company, which carried out the decision made by the owners.
Although the decisions of the general meeting will also surprise readers
(I do not recommend reproducing this at home):
- release of the Chairman of the Council of MKD G.S.A. from payment of expenses under the item maintenance and repair of housing;
- determination of payment for the work of the Chairman of the Council of MKD in the amount of 100 rubles per month per apartment, and in the case of repairs under the heading “house repairs”, an additional 10% of the repair amount is paid as remuneration for the preparation and support of the work.
The court refused the resident:
The defendant is not the same, the statute of limitations has expired and a bunch of other reasons.
⚫ Case No. 2-297/2019 Anzhero-Sudzhensky City Court of the Kemerovo Region A resident demanded that the management company stop billing 30 rubles monthly. The decision to collect such an amount was made by the general meeting of owners to pay remuneration to the chairman of the house council. The plaintiff asked to exclude the accumulated debt of 270 rubles. and recover moral damages of 30,000 rubles. Basis for the claim: the disputed expenses are not included in the structure of payments for residential premises and utilities.
The court's decision is to deny the claim:
- “The law does not contain a prohibition on including in the standard payment document, in addition to payments for the maintenance of residential premises and utilities, other payments obligatory for owners of premises in apartment buildings on the basis of a decision of the general meeting that has not been contested or invalidated.”
⚫ Case No. 2-3456/19, Taganrog City Court, Rostov Region The resident again wanted to declare illegal the inclusion of the line “payment to the chairman of the house council” in the receipts. In addition, the management company redistributed the debt on it among the remaining lines of the receipt. Again, these actions caused moral damage, estimated at 10,000 rubles. The man was asking a bunch of people to repair the heat sources in the entrance (it would be better if he didn’t do this).
In this house, the owners decided:
- determine a remuneration for the chairman of the MKD council for the functions he performs in the amount of ruble / 1 sq.m., including personal income tax of 13% per month, for which to oblige LLC "UK ZhKO" at the expense of residents' funds collected under the additionally introduced article "remuneration of the chairman" MKD Council" monthly, no later than the 25th day of the month following the settlement month, make payments to the elected chairman of the MKD Council.
According to the plaintiff, such a decision did not give the management company the right to include anything in the receipt. And such powers are also not specified in the management agreement. Here the applicant referred to the opinion of the Ministry of Construction, with which the article began. The court indicated that the company is implementing the decision of the general meeting, which has not been challenged or declared invalid, therefore everything is in order with the line in the receipt.
Regarding the distribution of debt across all lines
, both the court and the management company itself agreed at the court hearing that
this was incorrect.
The court ordered a forensic examination of the heating devices in the entrance. Expert for 15 thousand rubles. came to the following conclusions:
- heating devices in common areas, including in the entrance, are not connected to the general heating system of the apartment building,
- It is not possible to determine the scope and list of repair work necessary to restore the functionality of the heating system in common areas.
The court rejected the resident's request for repairs, indicating, among other things, that a decision from the general meeting on repairs was needed. The outcome of the case for all participants is sad:
The redistribution of remuneration debt between all lines was declared illegal, moral damages of 500 rubles and a consumer fine of 250 rubles were recovered from the management company.
Also, half of the legal costs were recovered from the Criminal Code, including 7,500 rubles for the examination. The remaining 7,500 for the examination was collected from the resident himself - since the demands in the case were only partially satisfied. I won by 750, having spent 7500, and the line with the remuneration to the chairman remained legal.
⚫ Determination of the Eighth Court of Cassation of General Jurisdiction dated April 28, 2020 N 88-7066/2020 A dissatisfied resident filed a claim for consumer protection: she asked to exclude an additional line from the payment slip, recalculate the fee, and compensate for moral damages in the amount of 50,000 rubles. and pay a consumer fine. She was refused, but for the reason that the violations had been eliminated earlier, by order of the housing supervision authority. The minutes of the general meeting of owners approved the structure and amount of fees for the maintenance and repair of residential premises in the amount of 23.15 rubles. for 1 sq. m, including remuneration to the chairman of the MKD council in the amount of 1.70 rubles. for 1 sq. m, per month. The housing inspection did not like this fee structure almost immediately,
she issued an order. The management company made a recalculation, held a second meeting, at which residents approved the structure and amount of fees for maintenance and repairs in the amount of 24.16 rubles. for 1 sq. m, in which the “remuneration to the chairman of the board of MKD” was already 0 rubles. Then the State Housing Inspectorate wrote a report stating that the violations had been eliminated. Based on the absence of violations, the court refused the resident’s request.
Collections
They collect everything from everyone: the chairmen from the management companies, and the management companies from the owners.
⚫ No. 2-1175/2019 Leninsky District Court of Izhevsk, Udmurt Republic
The chairman of the board of a house from Izhevsk collected from the management organization the remuneration due to her - 80,629 rubles.
According to the management agreement, the management company was obliged to pay remuneration to the chairman of the house council in the amount of 0.75 rubles per month per 1 sq.m. total area of premises at the expense of housing maintenance. For one month it came out to 5375.27 rubles. The court rejected the management organization’s arguments that remuneration cannot be included in the line “maintenance and repairs”, and that a different chairman was chosen in the house - the decision to select the latter had previously been declared invalid.
⚫ Case No. 2-316/2019 Dzerzhinsky District Court of Novosibirsk Be sure to follow the link and check out the bottom of the decision for the volume of everything that the chairman of the house council achieved from the Criminal Code through the court without any housing inspections. Respect to such chairmen. But in addition to her achievements, she also collected her remuneration as chairman. The management agreement stipulated that the fee for servicing the apartment building included remuneration to the chairman of the House Council + consumables and other materials, and the chairman of the House Council pays income tax independently. The frequency of payment according to the decision of the meeting was once a month. Calculation of the plaintiff and the court: the total area of the house excluding common areas is 3,179.20 sq.m. x 3 rub. x 16 months = 152,601.60 rubles. The court recovered this amount.
⚫ Case No. 2-3880/2018 Dzerzhinsky District Court of Orenburg The Chairman again had to seek payment of his remuneration through the court. The owners at the general meeting established the amount of remuneration - 11,000 rubles monthly “for performing public work in the interests of the owners of apartment buildings at the expense of income from the use of common property.” The court collected money for 4 months and interest for the use of other people's funds. The interesting thing about this story is that during the previous period of her work, the chairman also collected her remuneration through the court, and the satisfaction of her past similar claims did not in any way motivate the management company to continue paying normally.
⚫ Appeal ruling of the Chelyabinsk Regional Court dated March 26, 2019 in case No. 11-3910/2019
The chairman of the house council and the management company met in court. The first asked to pay the remuneration due to her (52 thousand), and the second asked to recognize the decision of the general meeting on this remuneration as invalid. In the case, there was a decision of the general meeting to pay remuneration to the chairman of the council monthly in the amount of 70 rubles from each apartment, “payment should be made to Zhilservice+ Management Company LLC from funds paid by the owners of the premises in addition to the tariff.” The money was collected, but the chairman also wanted a consumer fine. The courts indicated that the relationship between the plaintiff and the defendant does not fall under the regulation of the Law “On the Protection of Consumer Rights,” therefore she is not entitled to a fine.
⚫ Resolution of the Fifteenth Arbitration Court of Appeal dated October 24, 2019 N 15AP-17600/2019 in case N A32-4486/2019 A management company from Krasnodar collected a debt from an individual entrepreneur who did not want to pay remuneration to the chairman of the house council. The court recovered the money based on the decision of the general meeting: “a decision was made to order GUK-Krasnodar LLC to charge and issue for payment in payment documents for housing and communal services a contribution for the payment of remuneration to the chairman of the board of MKD in the amount of 1 ruble. 50 kopecks for 1 sq. m of premises per month, as well as for the payment of the amount actually received under this article to the chairman of the house council once a quarter, minus the bank commission on the transferred funds. At the same time, persons receiving remuneration pay personal income tax to the tax authorities independently.”
