Housing cooperative - a real alternative to leaking? HBC - what is it

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1 PJSC SKB Primorye "Primsotsbank" 690106, Primorsky Territory, Vladivostok, Partizansky Prospekt, 44; JSC "AROIZHK" 163000, Arkhangelsk, st. Popova, d. 17; OJSC SAIZHK 620075, Sverdlovsk Region, Yekaterinburg, ul. Belinsky, d. 35; JSCB AltaiBusiness Bank (OJSC) 656049, Russia, Altai Territory, Barnaul, Lenin Avenue, 43; RELIABLE HOUSE JSC 125284, Moscow, Leningradsky Prospekt, 31 A, building 1; RELIABLE HOUSE JSC 125284, Moscow, Leningradsky Prospekt, 31 A, building 1; HML Foundation (Veliky Novgorod) Novgorod Region, Veliky Novgorod, ul. Bolshaya Sankt-Peterburgskaya, d.6; OJSC AHML RSO-Alania 362027, Republic of North Ossetia-Alania, Vladikavkaz, ul. Marcus, d. 51; VGIF, 600001, Vladimir Region, Vladimir, Lenin Ave., 21A; OJSC "VAIZHK" 400001, Volgograd, ul. Kanunnikova, d. 23; JSC AHML IN 160009, Vologda, st. Chelyuskintsev, d. 47; JSC "AZHIK of the Voronezh region" 394036, Voronezh, st. 20th anniversary of the Komsomol, d.54A; Joint-Stock Commercial Bank "Izhkombank" (PJSC) 426076, Udmurt Republic, Izhevsk, ul. Lenin, house 30; JSC "KOIA" 305000, Kursk region, Kursk, st. Gorky, d. 50; OJSC AHML RT 420111, Republic of Tatarstan, Kazan, B. Krasnaya St., 15/9; NO "Fund ZhSS KO" 236001, Kaliningrad, st. Green, 89; JSC "KOSHELEV-BANK" 443100, Samara region, Samara, st. Mayakovsky, d.14; AHML KO JSC 650066, Kemerovo Region, Kemerovo, Oktyabrsky Ave., 51; AO KB "Hlynov" 610002, Kirov region, Kirov, st. Uritsky, d. 40; KKFZhS 660095, Krasnoyarsk, pr-t them. newspapers Krasnoyarsk Worker, d. 126, office 640; JSC "KIZHK" 640007, Kurgan region, Kurgan, st. Burova-Petrova, d.112; Uralregionipoteka LLC 455044, Chelyabinsk Region, Magnitogorsk, Karl Marx Ave., 77, bldg. 3; Dagipoteka OJSC 367027, Republic of Dagestan, Makhachkala, ul. Engels, d. 47; OJSC "RO IZHK of the Yaroslavl region" 150000, Yaroslavl, st. Saltykov-Shchedrin, d. 12; OJSC "Mortgage Corporation of the Chuvash Republic" 428,000, Chuvash Republic, Cheboksary, Moskovsky Prospect, 3 .; SE NO "NIKA" 603089, Nizhny Novgorod, st. Poltava, 26; JSC NOAIK 630102, Novosibirsk, ul. Zyryanovskaya, d. 53; State Unitary Enterprise of the Republic of Kazakhstan "State Property Fund of the Republic of Kazakhstan" 185035, Republic of Karelia, Petrozavodsk, ul. Gogol, d. 12; Avtogradbank JSC 423831, Republic of Tatarstan, the city of Naberezhnye Chelny, 43 Khasan Tufan Ave. JSC "Yamal Mortgage Company" 629008, Yamal-Nenets Autonomous District, Salekhard, st. Republic, d. 78; MIK JSC 430000, Republic of Mordovia, Saransk, st. Communist, d. 89; Joint-Stock Company "Mortgage Corporation of the Saratov Region" 410003, Saratov, st. them. Kutyakova I.S., d. 6; JSC CB "ForBank" 107140, Moscow, ul. Lower Krasnoselskaya, d. 5, p. 5; KOMIipoteka JSC 167000, Komi Republic, Syktyvkar, ul. International, d. 133; JSC AHML of the Tambov Region 392000, Tambov, st. Sovetskaya, d. 191 "B", JSC "UGAIK" 450098, Ufa, Prospekt Oktyabrya, d. 132/3, 6th floor, office. 605; OJSC "Mortgage Corporation of the Chuvash Republic" 428,000, Chuvash Republic, Cheboksary, Moskovsky Avenue, 3; AHML JSC in the Tyumen Region, Tyumen, Ordzhonikidze St., 63; Mortgage Corporation of the Republic of Buryatia 670000, Republic of Buryatia, Ulan-Ude, Profsoyuznaya St., 35; Mortgage Investment Agency JSC Stavropol Territory "355035, Stavropol Territory, Stavropol, Lenin St., 217a; Info-content LLC 620075 Yekaterinburg, Roza Luxemburg St., 19.

One option is to participate in housing cooperative. This article discusses the key points of this structure, as well as the pros and cons of acquiring living space through housing cooperatives.

The concept

What is meant by a housing construction cooperative? In Art. 110 of Chapter 11 of the Housing Code of the Russian Federation gives a general definition for housing and communal services. By law, this cooperation of individuals or legal entities on a voluntary basis to provide for their housing and home management needs.

Clause 4 of Article 110 states that HBC is a consumer cooperative. In the Letter of the Ministry of Economic Development of Russia dated 10.04.2008 N 4416-AP / D05 it is mentioned that such cooperatives can be divided into two types: cooperatives with the main activity in the form of profit and cooperatives, the activity of which is expenditure in nature through shares of participants. The association in question is of the second type.

It's important to know! According to the amendments to the Federal Law of November 30, 2011 N 349-ФЗ, ZhSK, formed after December 1, 2011, acts as a developer when acquiring a building permit.

Difference of ZhSK from ZhK

The main distinguishing feature of the LCD and HBC is the very essence of associations with a common goal. The members of the housing complex purchase the built housing, finance the restoration and further maintenance of the building, while the members of the housing cooperative pay for the construction, reconstruction and maintenance of the house.

Legal status

The legal position of the housing construction cooperative is characterized by the Housing Code of the Russian Federation, and the Civil Code clarifies its civil law properties.

In addition to the Codes, the provision of HBC is established by its charter, which will be described later.

For your information! Starting July 1, 2016, the housing construction cooperative should post the following documents and information in accordance with numerous regulations:

The composition of participating in the housing cooperative;
Permission for the construction of a house being built at the expense of members, as well as permission for a plot provided for development;
The location of the building and its description, drawn up according to the rules of settlement documentation;
The number of apartment premises in the house under construction and their characteristics;
Estimated date of acquisition of permission to sell the house.

Also, from July 1, 2016, HBC should provide the opportunity to familiarize themselves with the following documentation of a member of a cooperative upon request:

Settlement documentation;
Documents certifying the permission of the housing cooperative on the land area;
Reports of meetings of cooperative members, voting;
Conclusions of the inspector of ZhSK.

Structure

We list the main regulatory bodies of HBC:

General meeting;
Conference, with the number of members more than fifty people;
Management Board of ZhSK and its chairman.

The most important and significant advice is the general meeting, and the powers of the conference are formed by the charter of the organization. A general meeting is possible only with the presence of more than half of the participants. Accept a verdict if it voted for it more than 50% of those present. Such a decision, drawn up by the protocol, is inevitable for all participants of the HBC.

The management board of the housing cooperative is selected from the members of the association itself by the general meeting (conference). All competencies are enshrined in the charter. The chairman of the board is selected from the circle of members of the board. His responsibilities include translating the intentions of the cooperative, expressing the needs of housing cooperatives, etc. The main requirements for it are integrity and reasonableness.

In addition to the above posts, the cooperative has an auditor or revision committee. The main task of this unit is to control finances and economic activities.

If a person is charged with intentional crimes, bears the burden of an administrative fine in the form of suspension or has previously performed management services in the field of construction and related fields, he cannot join the cooperative’s management apparatus.

Creature

We denote the procedure for admission to the membership of the HBC. First of all, a citizen (from 16 years old) or a legal entity provides application to the board of the cooperative. Appeal is considered within a month and approved by the general meeting.

After the newly minted party will pay an entry fee, he is considered a full member of the cooperative.

In a cooperative must not be less than five participants (Article 112, LC RF), but there should not be participants more than the number of premises under construction.

To create a cooperative, a constituent assembly is convening, the participants of which may be those who wish to create a housing cooperative. The decision on the establishment of the association is considered approved if all the founders have chosen it.

registration

State registration is carried out according to the same rules as registration of legal entities. From the moment of registration, those who have voted for the formation of a cooperative acquire membership status. We turn to the Federal Law of 08.08.2001 No 129-ФЗ “On state registration of legal entities during their creation”. It spells out the main conclusions regarding registration:

Registration of HBC is carried out by its location.
A maximum of three days is the state registration from the date of transfer of the necessary documents to the registration authority.

The list of required documents is listed below:

signed application for state registration in the approved form ( ) ;
a decision in the form of a protocol on the creation of an organization;
constituent documents, in the case of housing cooperatives - its charter;
document on payment of state duty.

Charter

Article 113 of the LC RF provides full information that is necessary for provision in the charter of the Housing and Utility Commission.

Its structure is as follows:

name of the cooperative; location
essence and purpose of functioning;
instructions for acquiring a cooperative membership;
procedure for termination of participation in the association;
the amount of entrance and share contributions, as well as the rules for making them;
the consequences of non-compliance with established contributions obligations;
powers of the managers of the cooperative;
rules for the recognition of decisions by governing bodies;
rules for the transformation and liquidation of the association.

Liquidation

The liquidation of the housing cooperative is the termination of the activities of the association without the transfer of rights and obligations. There are no special rules for the housing construction cooperative in the law, it is recommended to use Article 61 of the Civil Code of the Russian Federation “Liquidation of a legal entity” as a basis.

Liquidation can occur either on a voluntary basis by agreement of the participants or upon expiration, or by a court decision.

On a compulsory basis, HBC is liquidated in the following cases:

Registration of HBC is invalid.
HBC conducts activities without authorization.
The activity of the housing cooperative contradicts the Constitution of the Russian Federation and other legal acts, as well as the charter of the organization.
At the suit of the shareholder, in case of non-observance of ZhSK of its direct purpose.

When the court ruled to terminate the activities of the association, ZhSK is obliged to pay its obligations to creditors.

Advantages and disadvantages of buying an apartment through HBC

Consider pros and Cons of Housing Acquisition for Housing Construction.

The undoubted advantage is the ability to pay in installments. You can also pay shares. Most companies selling apartments under the equity scheme provide installments until commissioning.

Another convenience of ZhSK is the possibility of self-employment of a new one in case of bankruptcy of the current.

According to this, in this situation, participants will have to demand housing in court, or create a new housing cooperative, and this is a very lengthy process.

A pleasant advantage for members of the housing cooperative is the transfer of all power to manage the house immediately after the cessation of construction of the house.

In the case of equity participation, you must first create a partnership of homeowners, which can last for an indefinite period.

Shareholders have the opportunity to participate in the management of construction, reconstruction and future operation of the house, have free access to documentation. This gives them more guarantees than with the conclusion of the DDU.

The HBC scheme also has disadvantages. Cooperative members may become victims double sales if the company uses gray schemes for the sale of housing. According to the law, as mentioned earlier, such fraud is prohibited: the number of apartments should not exceed the number of members of the housing cooperative. In this situation, the person wishing to enter is recommended to talk with the participants of the cooperative or with those who left it for one reason or another.

Since the law "On Protection of Consumer Rights" does not apply to the relations of the shareholder and the cooperative, ZhSK not responsible for construction disruptions and malfunctions after the sale of the house. To prevent such a situation, you must read the contract, especially the points about the warranty period of construction and the date of completion of work.

Video explanation

What are HBC, says Anton Lebedev.

In abbreviated form this association is called ZhSK.

Such an association is a collection of individuals, or the functioning of organizations among themselves, whose main goal is to build real estate, distribute housing among citizens, and then manage the construction.

At the initial stages of its operation, ZhSK controls the construction of real estate. The members of the housing cooperative themselves can directly participate in the construction, up to the construction work or coordination of plans with the administration.
After the property has been built and commissioned, the housing construction company is transformed from a construction company into a managing company. Now, on the shoulders of the members of this association lies the obligation to maintain such a house, thereby pushing as far as possible the time when housing will be recognized as dilapidated.

Thus, in spite of the fact that ZhSK is considered to be a fairly organized system, it can be advantageously transformed from a construction company into a managing company, thereby protecting residents from searching for intermediaries and executors of any important work in the form of managing organizations.

Many citizens want to unite in HBC, but they are concerned about the form in which they will interact with each other. Is it worth registering such an organization as an individual entrepreneur or legal entity? In fact, ZhSK is a legal entity, as it has founders, a group of initiative persons, as well as other governing bodies.

These organizations operate in accordance with the adopted constituent documents and the charter, which is compiled jointly by all members of the HBC. Therefore, if you plan to create your own housing cooperative in the near future, then be prepared for the fact that you will have to go through all the stages of registration of a legal entity.

Legal status of housing cooperatives

The legislation of the Russian Federation regulates and highlights in detail issues related to the functioning and existence of a housing and construction cooperative. Therefore, before you independently begin to create such an organization, it is worthwhile to devote a long time to studying the legislation.

Form of incorporation

The topic for discussion is the question of how exactly the HBC is organized. What legal form does this association have? As we said in the paragraph above, HBC is an association that must be registered in the form of a legal entity. Unfortunately, other legal forms, such as, individual entrepreneurs and so on, may not be acceptable.

The legislative framework

In the paragraph, which was set out a little higher, we discussed legal acts that talk about the concept of a housing construction cooperative.

If you want to cooperate with HBC, or organize it yourself, you need to know about the concept of a cooperative. It is also important for you to possess information about how it functions, as well as to study the norms that highlight other points in this matter.

So, the issue of the functioning of housing cooperatives in the Russian Federation is addressed in the housing code, which is very logical.

Article 110, as we have already said, talks about the concept of HBC.
123 article talks about the features of the organization of such a company, as well as its activities. Be sure to check out this article.
The entire chapter 11 of the Housing Code, by and large, is devoted to housing cooperatives. Therefore, having carefully studied this article, you will gather a lot of useful information.
Pay attention to the Federal Law of December 30, 2004. This law is numbered 215. This federal law talks about housing savings cooperatives, however, some of the provisions of this act may be suitable for the operation of a regular housing construction cooperative.

What types exist?

It is logical that, depending on the needs of citizens, there are different types of housing cooperatives.

To date, two types of housing construction and housing savings cooperative are widely known. Despite the fact that both of these types are associations of individuals, the essence and purpose of their work are somewhat different.

As we have already said, housing is understood to mean such an association, which is one of the consumer cooperatives. The main goal of such functioning of citizens within the organization is to provide housing for all members of the cooperative itself.

After all members of the cooperative have become full owners of real estate, such an organization is transformed into a management company, and begins to carry out trust and maintenance activities.

A housing savings cooperative is an association of citizens that allows them to obtain several areas of real estate of their choice, while the owners are not engaged in construction, but in fundraising for such real estate.

After analyzing what the activities of this or that cooperative are, you can conclude for yourself which of them will be most pleasant and most convenient for you to participate in. It is difficult to say unequivocally which is better, it all depends on each specific situation.

Difference from other forms of MCD management

How is ZhSK different from other forms of managing an apartment building? What are the main distinguishing features?

In fact, there are many differences.

The main one is that other organizations in the form of a partnership of homeowners, management companies, as well as other organizations receive a house that has already been built, and must contain it properly.

Sometimes, management companies receive a new building is not in good condition.

And all because the developer is only interested in renting out the house, but in no case in its maintenance.

In this regard, HBC is somewhat more profitable. Owners control the construction processes, and then manage the property. This means that the developer, who will be under control from the very beginning, will do everything so that the housing cooperative in the form of a management company does not have to redo anything or finish it.

Also, members of the housing construction cooperative independently collect funds on receipts for the maintenance of real estate, carry out the hiring of workers, carry out major repairs and scheduled.

In other management organizations, such actions are carried out either by invited leaders or selected members of the board.

From Housing Cooperatives

The main difference between a housing cooperative (Housing Cooperative) and a housing construction (housing cooperative) is that a housing cooperative is an association of citizens who are interested in maintaining a home.

In a housing construction cooperative, individuals are interested not only in maintenance, but also in construction.

Initially, individuals independently develop a construction plan, invite workers, are engaged in the procurement of materials, coordinate construction in the administration. Thus, we can say that the members of HBC are doing a great job, which subsequently becomes the basis for the maintenance of housing.

From HOA

Many compare the housing construction cooperative and the HOA. And in that, and in another case, the management of the house is carried out by homeowners, or rather the initiative part of them. However, what to choose?

In fact, this question is fairly easy to answer. If tenants have the goal to first build a property, and only then to manage it, then you need to choose a housing cooperative. This form implies first the construction as the first stage, and then the management and maintenance of the house. If you already have views of any building, and have become owners and areas, then you can organize an HOA.

From DDU

The abbreviation DDU is quite rare. And all because this form implies an equity agreement.

In fact, such an agreement implies an agreement that is drawn up between the developer and the interest holder. In accordance with this act, you, together with other shareholders, acquire real estate from a construction company.

Further, you can independently manage this property and manage it yourself, or entrust the management of another company. However, DDU is very different from HBC. The thing is that under an equity agreement, the owners buy property from the developer.

In such a form as a housing construction cooperative, owners build real estate from the very beginning, which means they independently build real estate from scratch, without a developer’s company.

Also, with the housing construction cooperative, only members of the association manage the property and its contents. In an equity agreement, the contents may be entrusted to other organizations.

Conclusion

We hope that from this article you have gathered the necessary information for yourself about how it works, functions, and also carries out its activities. If you are planning to create such a company in the near future, now you can probably calculate your strengths and assume what you will face.

Housing cooperatives have been known since the Soviet era, but since then the conditions for joining and participating in them have changed. Despite the fact that in the modern world cooperatives are quite rare, they still have a place to be, and are of interest to potential buyers of new buildings.

Housing cooperative then and now

From the point of view of the legislation, the housing construction cooperative (HBC) is a voluntary association, in which individuals join for joint construction or acquisition of housing. However, in practice, explains Maria Litinetskaya, managing partner of Metrium Group, they today play a different role than their prototypes from the Soviet era. Then the construction cooperatives were partially financed by the state or the enterprise, therefore they were a real tool for providing the population with housing. Of course, today no voluntary association of shareholders has enough money to build an apartment building. Therefore, housing construction cooperatives are most often created by developers themselves as one of the legal schemes for attracting citizens' money for building a house.

Today, HBC must simultaneously meet two main criteria for the possibility of raising funds:

Firstly, to have the status of a developer (for this it is necessary to obtain a building permit);

Secondly, to have a land plot on which construction is allowed.

Before amendments to the law on housing construction cooperatives were made in mid-2016, which tightened the degree of control over housing cooperatives, developers often used the scheme of concluding an investment contract between the owner of the land plot and the construction cooperative. At present, such an agreement is illegal, since in this case the land does not belong to the housing cooperative, and, accordingly, the housing cooperative obligations to the members for the construction of the house are not provided with anything.

Actual legislation in the field of housing cooperatives contains a mandatory requirement to maintain a publicly accessible register of members indicating the size of the share contribution and to be transferred at the end of the construction of the house for a specific residential building.

In general terms, the current participation scheme in the housing cooperative is as follows: the developer creates a housing and construction cooperative in which potential buyers of apartments in the residential complex are involved. Buyers sign a participation agreement with the cooperative and become its shareholders. ZhSK, in turn, enters into an investment contract with the developer and directs the collected funds of shareholders to the construction of housing. Despite the apparent simplicity of the scheme, there are many pitfalls that can play both in favor of the buyer, and against him. They will be discussed in more detail below.

Pitfalls of housing cooperative

Perhaps the main feature of buying an apartment through a housing cooperative is the lack of an equity agreement (DDU). All conditions for the acquisition are governed by the agreement on participation in the housing cooperative, as well as the charter of this organization.

It is not difficult to guess that all the fundamental documents (charter and model participation agreement) are written in the interests of the developer, since it is he who creates the housing cooperative. This means that in the event of a dispute, the developer standing behind the created cooperative will be in a better position.

In particular, ZhSK is not obliged to fix the final cost of the apartment, and by decision of the meeting, the final price can be increased, more than once, Maria Litinetskaya warns. In this case, the housing construction cooperative has the right to require additional contributions from shareholders on already paid contracts. He is also not responsible for the terms of the project if they are not specified in the charter or the contract of participation. Therefore, it is impossible to present a penalty in case of violation of the construction terms. The procedure for the return of funds is stipulated in the charter documents, therefore, in case of financial problems from the cooperative, it is problematic to get your money back. Finally, the contract with the housing cooperative is not necessarily subject to state registration, which can lead to "double sales" of apartments in the new building. Because it is difficult for the buyer to check whether an agreement has been concluded with another person for the same apartment.

There are other risks for the HBC participant related not with the registration of relations, but with the legal status of the cooperative and the shareholder. So, from the point of view of the law, a member of a housing construction cooperative is not a consumer of services, which means that it is not protected by the relevant Law on the Protection of Consumer Rights. This deprives a member of the housing cooperative of the opportunity to require the cooperative to properly fulfill its obligations, first of all, the quality of construction. In addition, the cooperative is not obligated to eliminate identified deficiencies and construction defects.

Finally, another significant drawback of purchasing through a housing cooperative is the lack of mortgage lending with state support. Banks as a whole are reluctant to provide loans for the purchase of housing through a housing cooperative, since, in their opinion, the lack of state registration of legal relations related to the purchase of an apartment under this scheme is a less reliable tool than a registered agreement on participation in shared construction.

Despite a large number of shortcomings, ZhSK has its advantages. So, participation in a housing construction cooperative allows you to get installments for a long time. For example, “Etalon City” offers installments until 2023, notes Natalia Barankova, a lawyer at Peresvet-Invest JSC. When selling apartments by concluding a DDU, installment plans are provided, as a rule, until the end of construction. After putting the house into operation and registering the right of ownership, the participant in shared construction becomes the owner of the apartment.

In addition, after the construction is completed, the right to control the house automatically passes to the members of the housing cooperative, who can transform the cooperative into a HOA - a partnership of homeowners. Thus, buyers themselves can choose a management company (UK), while with DDU the selection of a UK for a completed house remains the prerogative of the developer.

Another plus for a member of the HBC, says Renata Belyaeva, head of the legal department of the KASKAD Family family of companies, is that, if desired, the buyer can directly participate in the life of the cooperative and be aware of its financial activities. This is possible because the supreme governing body is the general meeting of members of the housing construction cooperative, and this gives it the right to monitor the implementation of the provisions of the charter and act in the interests of members of the housing cooperative.

And, probably, the biggest advantage of acquiring an apartment in a housing cooperative is an attractive price. The developer is not obliged to bear the costs of liability insurance, as in the case of sales through the conclusion of participation contracts in shared construction, which increase the price of the property.

Renata Belyaeva also draws the attention of potential buyers to the fact that at present the legislation on legal relations with housing cooperatives has been substantially tightened. The obligations of the cooperative to disclose information to members of the Housing and Construction Supervisory Authority and regulatory authorities in the field of construction were introduced. Fines were introduced for violation of the law on attracting citizens 'funds with deviations from the requirements of the legislation in an administrative order in the amount of 500 thousand to 1 million rubles, criminal liability was introduced for those guilty of attracting citizens' money bypassing the law on a large and especially large scale . All changes are designed to minimize the risks of "double sales" and thereby reduce the number of citizens deceived by developers.

Does HBC have a future?

Today in the market of new buildings the vast majority of objects are sold through the conclusion of the DUDS (agreement on participation in shared construction) and the agreement on the assignment of the right to claim it. DUDS gives maximum protection to customers within the framework of 214-FZ (it is registered in Rosreestr, the contract clearly spells out all the conditions for the purchase of real estate, and mechanisms are provided for receiving compensation for non-fulfillment of conditions). At the moment, DDU is the most reliable in the construction market.

As already mentioned, buying through HBC is a very risky scheme. This is understood not only by the clients, but also by the developers themselves, and therefore HBCs are not widespread - their share in the capital market, for example, does not exceed 9% of the total supply.

As a rule, housing cooperatives are used by the developer as a temporary scheme for attracting clients' funds in the absence of the necessary permits, in particular, formalized property rights or leases for the land plot, as well as a published project declaration. After receiving the necessary securities, developers usually renegotiate share participation agreements with the participants of the housing cooperative.

Maria Litinetskaya believes that in the foreseeable future this scheme will not be popular, as long as there is a significantly safer way to participate in shared construction - DDU. Use by developers of HBC will continue to be episodic in nature.

Thus, with a real opportunity to purchase an apartment in a housing society, you need to weigh all the pros and cons and decide whether this method is right for you.

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