Comments on the Law on Housing Cumulative Cooperatives. Principles of creating a cooperative, a system of contributions, the rights and obligations of members of the LNA.
Federal Law No. 215 dated December 30, 2004. "On housing accumulative cooperatives" entered into force 1APrel2005g. It creates for the citizens of our country another mechanism for acquiring housing in installments.
However, you must first figure out what the differences between housing accumulative cooperatives (LNG) from their fellow residents and housing cooperatives and the HSSC are consistent.
The members of the last two organizations acquire / build a single apartment building, located in a particular settlement at a specific address. Valid dreams from them members-shareholders of the LNA initially claim to be accommodated, which meet the requirements of each of them (future real estate owners formulate their wishes in a statement to entry into the cooperative) and are anywhere, anywhere in Russia. That is why these people do not risk being neighbors around the house and the entrance.
All members of one housing cooperative or the JSC enter their apartments at the same time. Fighters for themselves choose the so-called forms of participation in the activities of the cooperative (from the proposed). These financial schemes provide for different dates, the frequency of contributions, their size IT.D. Finally, in the accumulative cooperatives there is a concept as "Priority".
By entering the fees in the LNG, you can purchase not only an apartment in installments, but also an individual residential building (cottage). Whereas in the case of housing cooperative and the ECC, it is only about apartments.
LNG, unlike the other two "brothers", invests its own funds in the acquisition / construction of housing for members of the cooperative. When the pack will accumulate the amount provided for by its form of participation in the activities of the LNA (30 or 50% of the cost of housing), the cooperative will add it the same amount (maximum).
The number of US shareholders can grow and eventually reach 5000 people, while the number of members of the ECC and housing cooperatives is limited by the number of apartments in a particular house.
The LNG has the right to engage in entrepreneurship, and other cooperatives cannot earn money. The exceptions are revenues obtained by housing cooperative or the ECC as a result of the delivery of the liberated residential premises (Article 128 of the Housing Code).
Members of housing cooperatives and the HSSC are necessarily involved in the reconstruction and subsequent content of their apartment building (Article 1010 of the Housing Code). The LNG is created only "in order to meet the needs of members of the cooperative in residential premises by combining ... mutual contributions" (Article 1 of Law No. 215). After paying the share in the full and design of housing to the property, a person ceases to be a member of the cooperative, becomes the full owner of the apartment or at home and can join any associations of owners.
In the horshp money, you need to make money rather quickly: the whole amount for one to two years, while a multi-apartment building is built. VLHNP process is obviously slower, and the pace of deposit contributions chooses the future owner of the housing.
Cerage, while housing accumulative cooperatives is quite small. For example, those of which managed to find a mention on the Internet (and each LNA must have their own website!), Are far from the capitals, in Irkutsk, Perm and other cities. Often, these organizations are registered to 1APrel 2005, that is, their constituent documents and the procedure for carrying out activities may not fully meet the requirements of Law No. 215. Located cooperatives have time to the corresponding date of 2006. (that is, about six months) to start it to fit (according to Article 57 of the New Law).
Among other things, amendments to the LNA Law are now prepared, which are planned to be considered at the autumn session of the State Duma. Their fate is not yet defined.
Basic concepts used in law (Article 2)
Housing accumulative cooperative - Consumer cooperative created as a voluntary association of citizens based on membership in order to meet the needs for residential premises by combining it by members of the mutual contributions.
Cooperative activities to attract and use the funds of citizens to acquire residential premises - to attract and use by the cooperative of funds of citizens of cooperative and other attracted funds for the acquisition or construction of residential premises (including in apartment buildings) in order to transfer them after making mutual contributions to Completely in the property of members of the cooperative.
Residential premises - Apartment or residential house that meet the requirements established by the housing legislation of the Russian Federation (Article 15 of the Housing Code).
Dull fee - Cash inflicted by a member of the cooperative in the order and in those times, which are provided for by the form of its participation in the activities of the cooperative to attract and use the funds of citizens to purchase residential premises. The amount is determined in accordance with this Federal Law. The total feud contribution includes income received by the cooperative from their entrepreneurship and distributed between its members in proportion to their shade.
Entrance member - Cash at the same time made by a citizen to cover the cost of education of the cooperative and reception of a citizen in the members of the cooperative.
Membership fee - Cash, periodically introduced by a member of the cooperative. They are sent to cover costs that are associated with the implementation of the cooperative of the activities provided for by its charter, with the exception of activities to attract and use the funds of citizens to purchase residential premises.
Additional payment - Cash contributing to a member of the cooperative to cover the losses of the cooperative.
Penacople - Part of the shared contribution that a member of the cooperative introduced to a specific date.
Share - The proportion of the parenacoplation of each member of the cooperative in the shared fund of this LNG.
Pass Foundation Cooperative - This is the sum of the parenaches of all members of the cooperative.
The actual value of Paj - part of the cost of net assets of the cooperative, proportional to the size of the share. (Pure assets are the value obtained as a result of subtracting the amount of obligations from the amount of assets of the organization.)
Form of participation A member of the cooperative in the activities of the cooperative to attract and the use of funds of citizens to acquire residential premises - this is the procedure for making members of the cooperative of mutual contributions (their size, frequency, etc.) to the US Pass Foundation in the cooperative established in accordance with the requirements of this Federal Law, options for selection One of them is members of the cooperative.
Creating a cooperative
But the charter should also be written (for which a lawyer is invited specializing in this form of activity), and then hold a general meeting of the members of the LNA, on which, according to Article 11 of the Law, the document will need to approve. This meeting is the highest cooperative body (Article 34): it needs to be held annually, and each member of the organization has one voice on it.
The scattering competence of the general meeting of the members of the LNA, except for the approval of the Charter, includes changes and additions to it; approval of internal documents governing the activities of the cooperative; making a decision on the reorganization or liquidation of the cooperative; Election and early termination of powers of members of the Board and Audit Commission (Auditor). Attacks, election or appointment of the executive bodies of the cooperative (director or directorate; managing or managing organization); The early termination of their powers (if the charter of this LNF, the solution of these issues is not attributed to the competence of the Board of the Cooperative). At the general meeting, the forms of participation in the activities of the cooperative are approved; The maximum cost of housing is determined, which can be purchased or built by a cooperative for one member; The procedure for the formation and use of cooperative funds is recorded, with the exception of the Passion Fund. In addition, the meeting establishes the limit size of the expenditure of funds to ensure the activities of the LNA, the annual report and accounting reporting are approved, the audit report on the accuracy of the accounting reporting, receiving-consuming estimates, estimates of the cost of the maintenance of the cooperative and reports on their execution.
The cooperative is created without limiting the term of operation and begins its work from the date of making an appropriate entry into the Unified State Register of Legal Entities (Article 3). The LNA owns the property, may acquire and implement property and non-property rights on its own behalf, to fulfill the obligations, to be the plaintiff and the defendant in court, to open accounts in banks in the territory of the Russian Federation. He must have a round seal with the name of the organization, and can also have stamps, blanks, own emblem and other means of individualization.
Working mechanism
What purpose can the LSNA Passion Fund be used? First of all, the acquisition and construction of housing for members of the cooperative (Article 26). Attack on repayment of the costs specified in Art. 24. There are currently on the implementation of activities to attract and use funds of citizens to acquire and insure housing; improving consumer qualities (repair, finishing) of the acquired or built premises to the level corresponding to the requirements that are specified in the application for admission to members of the LNA; content, repair of housing; payment of utility services (before the transfer of the premises to use a member of the cooperative); Service and repayment of raised loans and loans attracted; payment of taxes, fees and other mandatory payments IT.D.
The procedure for making a share contribution is determined in accordance with the selected member of the cooperative a form of participation in the activities of the LNK-financial scheme, in accordance with which you will contribute. These forms define the minimum and maximum periods of application, as well as the minimum size of the part of the share contribution, after which a member of the LNA occurs the right to purchase or construction for him by the cooperative of the residential premises, the period of making the remaining part of the share contribution, the size and frequency of payments in the score Contribution. The acre of Togo, the conditions for attracting borrowed funds (Article 27), the size of which cannot exceed 70% of the mutual contribution of the cooperative member (Article 47). This article contains a number of limitations for timing. So, the minimum time during which you must make the mutual contributions until you can qualify for the purchase / construction for you by the cooperative of housing, is limited to two years (starting from the second year of the cooperative). ASROCE Making the remainder of the share contribution may not more than one and a half times higher than the first term.
Here is the easiest and most visual example. You intend to accumulate half the cost of the future apartment (at home) for two years (it is impossible to calculate for a shorter; according to Article 47, it can only be more). You pay a part of this amount, for example, monthly, after which you get the right to receive housing for use. Then you are ideally entering the apartment (or the cooperative begins to build it for you). Ato moment for now for three years you make the remaining money. But in this wonderful scheme there are three bottlenecks. The first is the cost of housing, which in two years may increase, and you will need to compensate the difference with additional share contributions to get real estate in use. How much will the amount increase? The question remains open. The second narrow place is the time during which the cooperative should provide you with the required housing. Probably the queue from the same members of the LNA, which seek to implement a similar intention. OTODE Housing will be provided in order of priority (Article 28). Third- If you are applying for a new apartment, then from the moment the cooperative will begin to build it for you, until the date of commissioning can pass for several years before you can place an apartment in the property.
From you as a member of the cooperative may require payment of additional contributions (in addition to membership and mutual). But this money should be used only on covering losses of the LNA, if, God forbid, they will arise (Article 2).
What should be fixed in the Charter of the Cooperative (Article 11):
The name of the cooperative and the place of its location;
The object and objectives of the activity of this cooperative;
the procedure for admission to members of the LNA and termination of membership in it;
The procedure for determining the size, composition and procedure for making mutual and other contributions;
Responsibility of members of the cooperative for violation of obligations for making mutual and other contributions;
The procedure for paying a member of the FIGN for the actual value of the share with the termination of membership in the cooperative;
the rights and obligations of members of this cooperative;
The rights and obligations of the cooperative to their members;
the structure and competence of the LNA bodies, the procedure for their creation and making decisions on various issues;
sources of formation and procedure for the use of the property of the cooperative;
Funds created by the LNA;
the procedure for coating by members of the cooperative incurred by a cooperative of losses;
the procedure for providing information by the cooperative information to its members and responsibility for its failure;
the procedure for holding the next and extraordinary external checks of the financial activities of the cooperative;
information about branches and representative offices of the cooperative;
the procedure for the reorganization and liquidation of the cooperative;
other status provided for by this federal law.
The charter of the cooperative may also contain other provisions that are not contrary to the legislation of the Russian Federation regulating the creation and activities of the cooperative and its bodies, including the restriction of the participation of close relatives in the activities of the cooperative bodies. The Charter is approved by the General Meeting of Members of the Cooperative. Changes to the charter are made by decision of the General Assembly.
Membership in Cooperative
A cooperative member is obliged to comply with the Charter and implement decisions adopted by the cooperative bodies, in a timely manner to make mutual and other contributions, not to impede the rights and execution of responsibilities by other members of the cooperative and its bodies (Article 8). It is responsible for its obligations to the LNA, for example, if it delays the deposit and other contributions (Article 6). The amount of the penalty for these violations is fixed in the charter of the cooperative, but cannot be higher than the 1/300 refinancing rate of the Central Bank of the Russian Federation (now 13%) for each day of the delay.
Membership in the cooperative is terminated in the event of a voluntary exit from the LNG, the exceptions of a member of the cooperative from the cooperative, the transfer of the share to another person, the death of a member of the LNG, appeal to the PAI, making a share contribution to the full amount and transfer of housing to the ownership of a cooperative member and, of course, the liquidation of the cooperative , among other things, due to its bankruptcy (Article 9). After having ceased to be a member of the cooperative, a person and members of his family should free the housing occupied by their rights, for two months (Article 32). Adrigately evict them, according to the new Housing Code, it is possible only by the court decision (and without the provision of other housing).
They exclude from the cooperative for failure to comply with duties, too, only in court (!), On the basis of the decision of the General Assembly or the Board of the Cooperative (Article 10). But before the entry into the decision of the Court to force the person who has already received from the LNA to use housing, has the right to make the remaining part of his mutual contribution and, therefore, arrange an apartment or a property.
LNG should not become financial pyramids of new Russia. The state will strictly control the compliance with the standards specifically invented to assess the financial sustainability of such cooperatives, as well as the implementation of the law on the LNA.
Controls
Members of the Board and Audit Commission, contrary to the established opinion, the salaries for their activities are usually not received (if this is not provided for by the charter of the LNA or decision of the General Assembly). But they can reimburse expenses, "incurred in connection with the implementation of activities" in the cooperative bodies. In turn, the Directorate and the managers are hired, employed to work in the LNA, as in any other organization or firm. Members of the Board are elected at the general meeting of the members of the cooperative, which, we recall, is carried out annually. Judged once a day, when this meeting took place, the powers of the Board expire.
General Meeting Members - The highest organ of the cooperative (Article 34) - takes all the main decisions relating to the vital activity of the LNA. The decision on the issue posed on the vote is made by a majority of votes (each member is one voice). Two thirds of votes are necessary for approval of the charter of the LNA, making changes and additions to it, the approval of the internal documents governing the activities of the cooperative, the provisions on the procedure for the formation of a mutual fund and its use, as well as to make a decision on the reorganization or liquidation of the LNG and the appointment of the liquidation commission.
The form of a general meeting may be full-time and correspondence (Article 36). AESLI The number of members of the cooperative exceeds 500 people, the general meeting can be carried out in the form of a collection of authorized. They are elected from among the members of the LNG, which are not part of the Board or the executive bodies of the cooperative (Article 41). Members of the cooperative (at least 10% of the total) and, of course, the Board, the Audit Commission and the executive bodies of the LNA can initiate an extraordinary General Assembly (Article 35). By the way, it must be convened in case of detection of losses that exceed 25% of the Passion Fund. After all, they will have to be repayed by additional contributions of all members of the cooperative!
Governing body "Carries out the activities of the cooperative during periods between the general meetings of the members of the cooperative" (Article 42). Board members should be at least three, of which one is chairman. One third of the number of members of the Board (for example, one of three) has the right to combine their activities with the work in the LNA on an employment contract.
The contribution of the Cooperative Board usually belongs:
Reception in the members of the cooperative and the termination of membership in it;
convocation and holding of general meetings of the members of the cooperative;
election or appointment of the executive bodies of the cooperative, control over their activities, early termination of their powers;
approval of the procedure for transferring housing to use a member of the LNA;
approval of the auditor and appraiser of cooperative and the terms of the contract with them;
preliminary approval of forms of participation in the activities of the cooperative, annual report and accounting reporting, audit;
making decisions on the establishment of branches and the opening of representative offices of this LNG;
approval of the concluded loan and loan agreements;
Other issues provided by law.
All decisions are taken at meetings of the Board and are issued in the form of protocols, which are signed by the Chairman of the Board and the Secretary of the meeting. Assue, members of the cooperative for six months have the right to appeal in court a decision taken by the Board with violation of the requirements of legislation, charter or other internal documents of the cooperative.
Audit committee (Auditor) LNG on behalf of the general meeting of members of the Cooperative exercises the control of financial and economic activities of the Organization. The auditors cannot combine their activities with work in a cooperative for an employment contract (Article 43).
Director (Directorate) - the Executive Body of the LNK- manages the current activities of the cooperative (Article 44). If there are more than 500 characters in the organization, the Directorate, the collegial body is necessary. The cooperative may refuse to hire existing performers and transfer these powers to another legal entity or an individual entrepreneur. They will act as a management organization or manager. The term of office of the executive bodies of the EDS is registered in the charter of the cooperative and cannot exceed five years. It is prolonged if it is necessary, only on the basis of the decision of the General Meeting of Members of the Cooperative.
The law makes pretty stringent requirements for cooperative officials (Article 45). A member of the Board and Audit Commission, the director or a member of a collegial executive body of the LNA cannot be a person who has already occupied one of the following posts in any other cooperative, if by the time the court has decisions on the liquidation of this organization or the application to it Bankruptcy procedures have passed less than three years. It is impossible to lead the LNG and persons who have a criminal record for a crime in the field of economics.
Everyone standing at the head of the organization should act in the interests of the cooperative, to carry out its rights and fulfill the duties "in good faith and reasonable" (Article 46). Officials ELNA are responsible (administrative, and in some cases criminal) for damages caused by the cooperative by their action or inaction. No guilt they must prove themselves. The responsibility does not carry only those members of the collegial bodies of the cooperative, who voted against the decision that caused damages.
On the features of the furniture
I would like to pay special attention to the fact that one of the spouses can be pushed by a member of the LNG, but the regimen of the joint ownership of spouses is distributed. At the request of one of them, when registering the right of ownership of the acquired housing, a share can be determined, and each of the spouses will receive a certificate of state registration of the right to real estate. Each member of the cooperative has the right at its discretion to dispose of the PAY belonging to him, including to make it and convey to another member of the cooperative or a third party who cannot be denied the admission to members of the LNA. Listening to the death of a member of the cooperative heirs under the law or in the will receive its mutual contributions and have a predominant right to join the members of the LNA.
State Control and Guarantees
The scheme of acquiring housing through the LNG seems very attractive. But can not be that such cooperatives will become the next financial pyramids of new Russia? No, should not. YB Law No. 215 The whole chapter is devoted to ensuring the financial sustainability of the LNA and the control of their activities.
The coexistence of the financial sustainability of the cooperative is presented by very stringent requirements (Art.47). First, the size of the part of the mutual contribution, after which a member of the LNA appears the right to purchase or construction for him by the co-operative housing, there can be no less than 30% of the amount of the entire estimated mutual contribution. (It is clear that a person who has invested serious money and who received an apartment for use will be inflowed in order to quickly give duty and arrange housing in the property.) Secondly, the LNG can add such a person to the maximum of the same money as he made himself . (Thus, in the case of 30% mutual accumulation, another 40% of the cost of housing will not be enough.) With a lack of funds for the purchase or construction of housing for a member of a cooperative, which made part of the share, can, of course, have been involved and borrowed funds, but Already under a solid bank percentage. So it is more profitable to accumulate 50% of the cost of housing. Then the cooperative will add the second half, if it is provided for by its charter. Thirdly, the minimum term of making a member of the LNG part of the mutual contribution, after which he has a desire to receive from a cooperative to use housing, may not be less than two years. ASROCE Making the remainder of the shared contribution should not exceed the term of making the first part of it more than one and a half times. (So, if you hit the first half of the solder, say, for three years, you will have to pay the second for three years.) Fourth, the cooperative itself, implementing the right of its members to receive housing to use, cannot invest in Acquisition of rights to housing under construction and directly in its construction is more than 20% of the cost of the property of the LNA. He must let the main money on the purchase of housing in the secondary market, to risk at a minimum, suddenly the house will not be completed?
The limitations described in Law No. 215 relate to the cooperative of transactions (Article 48). For example, the LNA is not entitled to issue loans, to give residential premises, transfer housing to free use, to act as a guarantor, to contribute to the authorized capital of certain organizations. The awards, acquired or built by a cooperative, can be transferred to a deposit (mortgage), but only to provide requirements for the obligation to return a loan (loan) on its purchase or construction.
Special regulations are invented to assess the financial sustainability of the activities of the LNA, whose definition methods and the magnitude are established by the Government of the Russian Federation (Article 49). These are the standards of the current security of the cooperative obligations, the overall security of the LNA commitment, the current balance of the activities of the cooperative, the medium-term balance of the activities of the LNA, the maximum debt of members of the cooperative, the debt load of the LNA, the debt of members of the cooperative, as well as the Other, which established by the laws and regulatory acts of the Government of Arf. The federal executive body will be followed by compliance, which performs functions to control and oversight in the field of financial markets, and its territorial bodies. This refers to the Federal Financial Markets Service (FSFR). The control mechanism is valid: if the cooperative does not comply with at least one of the seven prescribed standards, he is not entitled to carry out activities to attract new members.
We hope that a lot of minnges will appear in Russia very soon. Other ways they will unite into self-regulatory organizations - voluntary associations are the same in the essence of cooperatives. These organizations will develop and establish rules and standards that ensure compliance with the interests of members of the LNA and the implementation of effective activities to attract and use funds to acquire housing, monitor compliance with the requirements of IT law. All-it is the case of the closest future.
The editors thanks the lawyer Lyubov Danilov for help in preparing the material.