Voting of apartment building owners: vote counting

Absentee voting of the general meeting of owners of the apartment building

).
The final document should be the minutes of the meeting of the initiative group, which expresses the intention to convene a general meeting of premises owners, its form, place and time, a list of issues that are planned to be discussed, etc. Otherwise, such a meeting will not be legal. Even the absence of a quorum in person meeting will not cause a change in its form to in-person or absentee. You will have to gather the residents again, but organizing everything in a different form.

Is it legal to hold an absentee meeting of an apartment building without holding an in-person meeting?

When holding a general meeting of owners of premises in an apartment building by absentee voting (hereinafter referred to as the “absentee general meeting”), it should be taken into account that its holding is subject to all the provisions of Chapter. 6 of the Housing Code of the Russian Federation in the part relating to holding general meetings of owners of premises in an apartment building, taking into account the features established by the Housing Code of the Russian Federation.

Holding an absentee general meeting is possible only if the general meeting of owners by joint presence did not take place due to the lack of a quorum. At the same time, only those issues that were included in the agenda of the failed in-person general meeting (Part 1 of Article 47 of the Housing Code of the Russian Federation) can be raised for consideration at the absentee general meeting. Thus, the basis for holding an absentee general meeting may be an act recording the fact that the general meeting in person did not take place. An absentee general meeting is held by transmitting to the place or address indicated in the notice of a general meeting of owners of premises in an apartment building, written decisions of the owners on issues put to vote (parts 1 and 3 of Article 47 of the Housing Code of the Russian Federation) . Preparation for holding an absentee general meeting involves preparing and sending to the owners of premises messages about holding an absentee general meeting in the manner specified for sending messages about holding an in-person general meeting (an example of a message about holding an absentee general meeting is given in Appendix 11). Instead of information about the time and place of holding an in-person meeting indicated in the notice of holding an in-person meeting, the notice of holding an absentee meeting must indicate the place or address to which decisions of the owners should be transferred, and the end date for accepting such decisions. In addition to this information, it is necessary to indicate the need to attach to the owner’s decision copies of documents confirming the person’s ownership of the premises in the house, copies of documents identifying the owner and his representative, as well as a power of attorney for the representative if the decision is made by the owner’s representative. According to Part 3 of Art. 46 of the Housing Code of the Russian Federation, the owner’s decision on issues put to vote must indicate: 1) information about the person participating in the vote; 2) information about the document confirming the ownership of the person participating in the vote to the premises in the corresponding apartment building; 3) decisions on each issue on the agenda, expressed in terms of “for”, “against” or “abstained”. Thus, to the notice of holding a general meeting of owners, it is necessary to attach, in addition to the documents whose approval is planned by the decision of the general meeting, a draft decision of the owner. It is recommended that the owner’s draft decision be drawn up similarly to the voting sheet when holding an in-person general meeting (see Section IV), taking into account the specified requirements of the law (an approximate example of the owner’s decision is given in Appendix 12). If a general meeting is held by an initiative group of owners, the address of the apartment of one of the members of the initiative group can be indicated as the place to which the owner’s decision should be transferred. In the event of a general meeting of the organization managing the house, you can indicate the address of its actual location or the location of its separate division in this building. When organizing and holding a meeting by a specialized organization (for example, a law firm), the actual location of such organization can be indicated as the address for sending decisions of the owners. The date by which decisions are taken from the owners of the premises in the house should be set taking into account the actual possibility, including the owners who do not live in the house, to prepare and send their decisions to the place (address) established by the notice of the meeting, also taking into account the delivery time letters by mail. In order to facilitate the participation of the maximum number of owners in the meeting, the organizers of the meeting, during the period of time allotted for the owners to make decisions and transfer them to the place (address) specified in the notice of the absentee meeting, may make rounds to additionally advise the owners on the agenda issues meetings, assistance in formalizing the decisions of the owners, as well as for the purpose of transferring their decisions to the place (address) for collecting the decisions of the owners. Registration of the results of an absentee general meeting, in general, does not differ from the registration of the results of an in-person general meeting (an approximate sample of the minutes of an absentee general meeting of owners is given in Appendix 13, the act stating that the general meeting in person did not take place is in Appendix 14). A special feature of the formalization of the results of such a meeting is the signing of the minutes of the general meeting of owners by all owners in the case of the creation of an HOA and the approval of its charter, as well as in the event that such a requirement is made for the execution of the minutes by a decision of the general meeting of owners. In this case, the organizers of the meeting must ensure that such a protocol is signed by all owners who took part in the vote, or by owners who voted for the creation of the HOA and the approval of its charter. This requirement can be implemented by posting notices in publicly accessible areas of the house indicating the time period and place at which meeting participants must appear to sign the minutes, or by having the meeting organizers visit the meeting participants. In other cases, it is possible for the minutes to be signed by the persons specified in the rules of conduct of the general meeting adopted by the general meeting. As a rule, the initiator of the meeting, the chairman of the meeting and the secretary of the meeting are indicated as such persons. It is recommended that owners’ decisions on agenda items be kept together with the minutes of the general meeting.

We recommend reading: Lump-sum Benefit for the Birth of a Child in 2020 During What Time Should It Be Transferred

Is it possible to conduct absentee voting immediately (without in-person voting)?

13 April 2020

We have already written a short note about this, but now we decided to double-check our old conclusions using fresh judicial practice.

Result: We continue to be unable to recommend holding an absentee meeting without a prior failed in-person meeting. The easiest way is to immediately hold a meeting in the third possible form - in person or in absentia.

Let us remind you that meetings are held in several forms:

face-to-face (joint presence),
absentee polling (owners fill out and return ballots),
In-person and absentee (first those who can gather, then fill out ballots). This is not a combination of the first 2 meetings, but a separate way of holding a meeting, it should not be mixed with others.
absentee using the system (online voting).

According to Part 1. Art. 47 of the Housing Code, if when holding a general meeting through joint presence such a meeting did not have a quorum, in the future decisions of the general meeting with the same agenda can be adopted by absentee voting (by poll).

Because of the words “may be” in practice, all sorts of confusion arises: many people think that “may” is not “obligated”, and, therefore, there is no ban on holding absentee meetings without holding in-person ones.

However, many housing inspectorates, as well as courts, often take a different approach. We have collected examples of this position for the period from 2020 until the publication of the article.

Resolution of the Eleventh Arbitration Court of Appeal dated February 3, 2020 No. 11AP-22574/2019 in case No. A55-28402/2019, Samara:

The order of the housing inspection was disputed, which demanded that the HOA eliminate violations regarding the legality of the election by the general meeting of members of the board and the chairman of the board of the partnership, and compliance with the mandatory requirements for establishing maintenance fees.

The housing supervision authority indicated that the meeting was held in absentia, and documents confirming the notification of HOA members about the general meeting in person and the minutes of the general meeting of HOA members in person were not presented.

The HOA argued that the Housing Code of the Russian Federation does not provide for the mandatory holding of an in-person meeting of HOA members. However, the courts were unanimous with the inspection:

“a general meeting of owners in the form of absentee voting is legitimate only if the previous general meeting of owners in the form of in-person voting, with the same agenda, did not have an established quorum...

... the partnership did not take measures to hold the meeting through joint presence, the general meeting in person with a similar agenda was not held before the decision was made to hold the general meeting in the form of absentee voting... The above, in the opinion of the appellate court, indicates a violation of the procedure for holding a general meeting provided for in Part 1 of Article 47 of the Housing Code of the Russian Federation, allowing for absentee voting only after the in-person meeting did not have the quorum specified in Part 3 of Article 45 of the Housing Code of the Russian Federation, which led to a violation of the rights of HOA members to directly participate in such a meeting, expression of will "

Determination of the Ninth Court of Cassation of General Jurisdiction dated November 14, 2019 N 88-196/2019, Vladivostok:

The decision of the general meeting was disputed. The courts of first and appellate instances rejected the claim, but the court of cassation did not agree with them and overturned the court decisions, sending the case for a new trial:

“...The court of first instance interpreted Part 1 of Art. 47 of the Housing Code of the Russian Federation as not containing an imperative indication of the possibility of holding a general meeting in the form of absentee voting only after such a meeting is held through the joint presence at it of the owners of the apartment building premises... Leaving the court decision unchanged, the appellate court referred to the possibility of holding a general meeting of members provided for in the HOA charter homeowners' association in the form of a survey (absentee voting) without holding a meeting in person, indicating that this does not contradict Part 3 of Art. 47 Housing Code of the Russian Federation.

However, part 3 of Article 47 of the RF Housing Code is not applicable to the relations that have arisen, since it regulates the holding of a general meeting through in-person and absentee voting. In the present case we are talking about the legality of a meeting in absentia, the procedure for holding which is regulated by part 1 of Art. 47 Housing Code of the Russian Federation.

The interpretation given by the appellate court of Part 1 of Art. 47 of the RF Housing Code contradicts its direct content, from which it follows that the procedure for holding absentee voting (by poll) must be preceded by the procedure for holding a general meeting of owners through joint presence. And only the absence of a quorum can be grounds for subsequent voting in absentia.”

Appeal ruling of the Moscow City Court dated November 20, 2019 in case No. 33-48006/2019:

The courts granted the application to invalidate the decision of the general meeting. During the voting, various violations were committed, one of them was the failure to hold an in-person meeting before an absentee one.

“The norms of Art. 47 of the RF Housing Code on the absentee form of holding meetings are intended to simplify the procedure for making decisions concerning all owners of premises, however, they cannot serve as the basis for such abuses that lead to the exclusion of a number of owners from participation in the management of the house, and such a violation is considered an improper procedure for holding meetings of owners , leads to a violation of the rights of HOA members to directly participate in such a meeting and express their will.

... from the interpretation of Art. 47 of the Housing Code of the Russian Federation it follows that holding an absentee meeting is possible only after a sufficient number of votes were not collected during the in-person meeting (that is, there was no quorum), thus, holding a meeting of owners in absentia in a building in an apartment building is permissible and possible after holding an in-person meeting meeting of owners that did not obtain a sufficient number of votes for a quorum, otherwise this will lead to a significant violation of the rights of the owners of the premises.”

Appeal ruling of the Moscow City Court dated April 24, 2019 in case No. 33-17739/2019:

The demands to recognize the meeting's decisions as invalid were also satisfied.

“...the court of first instance came to the reasonable conclusion that there were no legal grounds for holding a general meeting of premises owners by absentee voting. The court of first instance found that the defendants did not provide evidence that the procedure for holding a general meeting of owners of premises in absentia was preceded by the procedure for holding a general meeting of owners in person with personal presence at the meeting of owners, and only the lack of a quorum was the basis for voting in absentia, from which the court of first instance concluded that the meeting in person was not held.

Violations of the provisions of Part 1 of Art. 47 of the RF Housing Code indicates the significance of such a violation as the failure to hold a meeting through joint presence before making decisions by absentee voting.”

Appeal ruling of the Sverdlovsk Regional Court dated 09/04/2019 in case No. 33-14075/2019:

The court again invalidated the decisions of the general meeting of owners.

“... the court proceeded from the fact that the initiators of the meeting committed a significant violation of the procedure for convening, preparing and holding the meeting, affecting the expression of the will of the meeting participants, since before the absentee voting, an in-person meeting was not held or initiated, which contradicts Part 1 of Art. 47 of the Housing Code of the Russian Federation. ...Under such circumstances, the court came to the conclusion that B.S.’s demands were satisfied, and, accordingly, that they refused to satisfy the owners’ demands for the obligation of the management organization to fulfill the decision of the general meeting.”

Without denying the possibility of the existence of the opposite practice, we ask readers, before organizing an absentee meeting, to independently assess the risks of a simplified procedure for holding it.

To avoid such troubles as in the examples above, we consider it the simplest and most reliable to hold a meeting in person or in absentia or online voting.

Step-by-step instructions on how to hold a general meeting of owners of an apartment building

The decisions made by the general meeting, as well as the voting results, are brought to the attention of the owners of the premises by the owner, on whose initiative such a meeting was convened, by posting an appropriate notice about this in the premises of the given house, determined by the decision of the general meeting and accessible to all owners of the premises. This must be done no later than ten days from the date of adoption of these decisions (Part 3 of Article 46 of the LC).

Minutes of general meetings of owners of premises in an apartment building and decisions of such owners on issues put to vote are stored in the place or address determined by the decision of this meeting (Clause 4 of Article 46 of the Housing Code of the Russian Federation).

Notice of holding a general meeting in the form of absentee voting

Article 45 of the Housing Code of the Russian Federation obliges the owners of premises in an apartment building to annually hold general meetings of owners and establish the timing and procedure for their holding. To conduct absentee voting (as well as to conduct an in-person meeting), it is necessary to send each owner of premises in an apartment building a message about absentee voting.

Since absentee voting is one of the forms of holding a meeting, the message must indicate:

▪ information about the person on whose initiative this meeting is convened;

▪ form of holding this meeting – absentee voting;

▪ date and time of the end of reception of decisions of owners on issues put to vote, the place or address where such decisions should be transferred;

▪ meeting agenda;

▪ the procedure for familiarizing yourself with the information and (or) materials that will be presented at this meeting, as well as the place or address where they can be viewed, and the contact telephone number of the initiator of the meeting.

The notice of holding a general meeting in the form of absentee voting differs from the notice of holding a general meeting in person in only one way. Instead of reporting the place and time of the meeting, the place, date and time of the final adoption of decisions of the owners on the issues put to vote are indicated (subparagraph 3 of paragraph 5 of Article 45, Article 146 of the RF Housing Code).

The procedure for notifying the holding of a meeting does not differ from the procedure for notifying the owners of premises about a meeting in person (Part 4, Article 45, Article 146 of the Housing Code of the Russian Federation).

As a result of violation of the procedure for notifying the owners of the premises of an apartment building about the holding of a general meeting, the decision taken by them can be challenged in court and declared invalid.

2019 Absentee Voting Without In-Person Meeting in MKD Possible

Answer: Amendments were made to the Housing Code of the Russian Federation back in 2011, according to which a general meeting of owners of the Moscow Ring Road can be held in absentia only if a general meeting held in the form of joint presence has not taken place. The imperative norms of Article 47 of the Housing Code of the Russian Federation, therefore, establish a ban on holding a general meeting of owners in absentia, bypassing the “in-person” form.

The imperative established in Article 47 of the Housing Code of the Russian Federation is intended precisely to stop such abuses, because in the joint presence of owners (albeit a smaller part of them), a discussion is held, questions are asked and citizens, based on the results of the discussion, have at least some idea of what they proposed by the initiator or an initiative group of owners.

General Meetings of Owners

To conduct a general meeting (both online and in person/in absentia), you need complete and reliable information about your home. The information that your management organization provides in various services is almost always false or contradicts itself and common sense. Therefore, in order to ensure that your efforts are not wasted, and everyone does not have the opportunity to challenge them and throw your work into the trash, you need to check and compare every comma in the “documents” provided to you with confirmed data.

Not a single management organization in the country maintains up-to-date registers of home owners. Therefore, any “register of owners” requires verification with data from RosReestr. In order for the documents on your home to be compared with this information, you are required to fill out the appropriate application to the Authorities and request the address of your home in the AIS Sobdoma.RF.

On the site, all information about your home is collected from all available sources and cross-checked manually.

a general meeting of owners in the future without getting up from your computer or running anywhere, you need to perform a few simple and understandable steps in the SobDoma.RF Internet system.

Houses are added to the system only based on your requests. Find your home using the address search. If the house is not found in the system, it means that you are the first of your neighbors who is interested in the competent organization of the meeting. Fill out the form below or click the “Add address” button - and your house will appear within a few minutes, and you will receive an SMS and e-mail about the completion with a direct link to your house, which can be distributed among neighbors, printed and hung in the entrance or in elevator.

You can also order free delivery of information leaflets for your neighbors, which you can put in your mailboxes yourself so as not to have to answer the simplest questions “why and why this is needed.”

So, at the moment of initiation of the meeting: (before announcing the date, time, order and agenda)

Find your home and click the “Organize a general meeting” button on your home’s page on the portal
If it is not in the system → fill out the form at the beginning of this article and you will receive a direct link in your email.
Fill out an application for conducting an OSS and providing a register of owners:
To the Managing Organization __________________________________ from the owner of premises No. ____ at the address ____________________ _____________________________ (full name, contact phone number and email)
Statement.
In accordance with the requirements of clause 3.1 of Article 45 of the Housing Code of the Russian Federation, I inform about the initiation of the General Meeting of Owners of premises in an apartment building at the address: __________________________________, located in your management, and ask you to provide, within the period established by law, the current Register of Owners of premises in an apartment building, containing the provisions provided for by law information: last name, first name, patronymic (if any) of the owner of the premises in an apartment building, full name and main state registration number of the legal entity, if the owner of the premises in an apartment building is a legal entity, number of the premises in an apartment building, the owner of which is an individual or legal entity , numbers and dates of title documents for verification with the data of the FSIS EGRN RosReestr, as well as information on the size of their shares in the right of common ownership of the common property of the owners of premises in an apartment building, in compliance with the requirements of the quality standard and relevance of information corresponding to the information in the property passport of the apartment building AIS SobDoma.RF. Please provide the electronic version of the register of owners by email _______________________________________________ I ask you to provide the paper version, certified by the seal of the management organization and the signature of the responsible person, by hand / by mail to the above address (cross out what is not necessary) for inclusion in the minutes of the General Meeting of Owners.
Date of application ____________________ Signature _______________________
Send this application via the online reception or take it to the Office of the Administrative Office for an acceptance stamp
Please wait five business days
Get results or unsubscribe . Most likely, there will be nonsense, dead souls and deliberately false information about the common area and the owners of your common property. This is normal, but this piece of paper is unsuitable for a legitimate meeting.
Send the result as a reply to the letter about adding the address (comes from , didn’t see it? Look in spam and click the “Not spam” button).
Our specialists will compare the received data with the information in the property passport and check the number of discrepancies with reality, about which you will receive an e-mail report.
If the topics of the meeting are too relevant and require quick intervention, and the management organization is delaying the deadline, you can receive the register ahead of schedule by paying for its production according to the details specified in the letter, and then demand compensation for the payment from the funds for the maintenance and repair of the apartment building (this requires a decision from the OSS in accordance with paragraph .3.5 part 2 of article 44 of the Housing Code of the Russian Federation).
To organize a meeting you need to know how many owners are in your house and how many votes they have at the meeting.

There is always a situation where some of the owners do not live in the house: the apartment is rented out or provided for use by relatives, and the property is registered in the name of another person living in another place. They are the ones who need to convey the link to your home in the system in every possible way.

To get rid of the problem of “how to notify a neighbor about a meeting while he is abroad and get his decision?”, we have prepared a sample of documents for inclusion in the minutes of the next General Meeting (remember, by law they must be annual).

When you already have an up-to-date register of owners:

Open your account on the website https://sms.sobdoma.ru with the login provided in the letter (usually your email) and password.
Open your home card and review the information provided there.
If you already have contacts (mobile phones, emails) of one of your neighbors, fill them out in the appropriate lines. Remember to press the V button to the right of the field when you have made your changes.
If several people are involved in organizing a meeting (for example, senior staff), each of them must have individual access to the system. Send it to your neighbors by clicking the Share button. Ask them to also fill out the information provided at the start stage. If necessary, a division of the register by entrance is provided.
To the right of the list, click the circle button. Several types of filtering are provided: all owners → only those who are to be notified → only those who have been notified → those who have contact information → only those for whom there is no information.
Switch to the “No contacts” mode and press the printer button.
Print out the resulting table and walk through the apartments with it, collecting ways to contact the owner indicated in the table. It is desirable (but not required) for people to sign their names in their field of the table. Then enter the received information into the system.
When you have entered all the contacts that you managed to collect, click the button with the image of a lock on the right.

When they filled out everyone they could find or find:

Click on the “Mail Alert” button in your home card on
Postal items will be generated, which you can send through the AIS SobDoma.RF (paid service) or by yourself by visiting the Russian Post.
Save the checks and the register of postal items with the registered mail identifiers entered for subsequent attachment to the register.

At the stage of notifying the owners about the meeting: (no later than 10 days before the in-person discussion, if you have one, or absentee voting, if the meeting is held in absentia)

Formulate (work with neighbors and specialists) the agenda for the General Meeting of Owners. Important! Once notified, the agenda cannot be changed!
To organize online voting, add the following wording to the agenda: Selecting a method of notifying about a general meeting, voting method, using Internet systems when holding a general meeting of owners in the form of absentee voting (clauses 3.2 and 3.4, part 2, article 44 of the RF Housing Code) , as well as the method of notification of the results of the OSS of the MKD and the location of storage of documentation for the General Meetings.
If you are applying for compensation for your expenses during the OSS, add the following wording to the agenda: The procedure for financing expenses associated with convening and organizing general meetings (clause 3.5, part 2, article 44 of the Housing Code of the Russian Federation).
Publish the text of the notification on any public website on the Internet (you can use our service or any other, as you wish)
Enter the link to the publication in the appropriate field in the house card on

At the stage of forming sheets (ballots) for voting:

(include wording in ballot or use sample)

Choosing a method of notification about a general meeting, a voting method, the use of an Internet system when holding a general meeting of owners in the form of absentee voting (clauses 3.2 and 3.4, part 2, article 44 of the RF Housing Code), as well as a method of notifying about the results of the OSS MKD and the place storage of documentation for General Meetings.

Use for absentee voting:

SKVER
System
GIS Housing and Public Utilities
System ,
Electronic House
 (only for Moscow),
other IP ____________ (several options can be selected)

Determine by notification method:

SMS message to mobile phone number. +7 (____) ____-___-___ 

Set the storage location for copies of the minutes of the General Meetings ___________________

The procedure for financing expenses associated with convening and organizing general meetings (clause 3.5, part 2, article 44 of the Housing Code of the Russian Federation).

 Include meeting costs

in the plan of financial and economic activities of the management authority for MKD.

 Carry out additional collection of funds,

not including the cost of holding the meeting in the payment document.

At the stage of collecting votes (written decisions of owners):

the mailboxes as one of the ways to convey the decision to the initiators , and marking them with the appropriate sticker or inscription.
Please remind all people voting remotely that they can print and sign the decision themselves, then take a photo or scan and send you a color electronic copy, and only then transfer the original decision in a convenient form to you or directly to the State Property Committee of the region by mail or electronically ( but they must send you a photo/scan)
Use all possible ways to inform owners about the meeting: hang posters in the entrance , distribute leaflets with a link to mailboxes, post a notice in elevators, send an SMS, discuss the meeting in instant messengers ( Whats'App, Telegram, VK.com, FB .me, Skype or others of your choice), call your neighbors and tell them to vote, or use the auto-dialer system.
Your goal is for information about your meeting to be heard from almost every voice.