Chairman of the HOA: duties, powers and responsibilities

Earns money from HOA

According to unverified reviews from residents of Kazan, the chairman of the HOA used a painfully ordinary scheme for making money on the HOA. Its essence boiled down to four sequential steps:

1. Borrow resources from resource supply organizations.
2. Collect money from residents for utility services provided.
3. Withdraw money to “friendly” contractors.
4. “Forgive” debts to suppliers through the bankruptcy of the HOA.

The scheme was worked out, so the chairman did not make obvious mistakes: the debtor himself organized the bankruptcy of the partnership in a timely manner, and an “independent” and almost impartial arbitration manager was appointed to the bankruptcy procedure.

Why can the chairman of an HOA be replaced?
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How to hold the chairman of an HOA accountable

Hold the HOA chairman accountable

follows in the case where the partnership or its individual members have suffered harm, which was confirmed by a specially created audit commission authorized to conduct inspections. Based on the results of the audit, an act is drawn up, which indicates the amount of damage caused, as well as methods for compensating it.

Thus, the chairman of the partnership

is
responsible
for:

HOA (homeowners' association) is a special form of self-government created by property owners. Sample application for criminal prosecution of police officers? The main functions of this body.

• waste of funds allocated for housing maintenance;
• negligence in the performance of duties;
• exceeding the powers prescribed in the job description;
• appropriation of property belonging to the partnership or its members.

Chairman of the HOA elected at the general meeting of real estate owners

must strictly follow the job description.
He is assigned the following responsibilities
.

Entered into an agreement with the arbitration manager

The chairman of the HOA did not foresee this scenario and did not assign the majority in the register of creditors' claims to his friendly suppliers and contractors. Therefore, he could no longer choose a new loyal arbitration manager; there was no chance of winning. But unexpectedly I got lucky.

This time the creditors did not have enough competence. They did not have time to submit to the court the candidacy of their arbitration manager as prescribed in paragraph 6 of Art. 45 of the Federal Law of October 26, 2002 No. 127-FZ ten-day period. Therefore, the court requested an arbitration manager from the SRO from which the removed manager was located.

It was not difficult for the chairman of the HOA to come to an agreement with the SRO regarding the candidacy of an arbitration manager, with whom he had agreed in advance. A person who shares the pain and hopes of the ex-chairman of the HOA has again entered into bankruptcy proceedings.

Vacation of the HOA Chairman
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Sample application for bringing the management of the management organization to criminal liability

This sample application for bringing the management of a management organization to criminal liability is exemplary and reveals general provisions. Each case is individual.

The living area of ​​our apartment building is 5466.40 square meters. The fee for the maintenance and repair of common property of apartment buildings from 2013 to August 1, 2021 was 21.62 rubles per square meter of the owner or tenant of residential premises. The number of months in which these companies carried out activities for the maintenance and repair of common property from August 1, 2013 to August 1, 2021 is 36 months.

Having performed simple arithmetic operations (5466.40 × 21.62 × 36) we get the amount of 4,254,608 rubles 45 kopecks.

Production Housing Trust LLC and Production Housing Trust-2 LLC from 2013 to August 1, 2021 carried out activities for the maintenance and repair of the common property of our apartment building, while PZHT-2 LLC managed this apartment building from May 1, 2015. At the general meeting of premises owners on July 27, 2021, the activities of the above-mentioned legal entities for the years 2014-2016 in managing, maintaining and repairing the house were recognized as extremely unsatisfactory. The general meeting decided that the management organizations would not perform all types of work and services during the specified period, with the exception of dry/wet cleaning of common areas, janitor services and removal of solid waste. Taking into account the technical condition of the structural elements of the apartment building, utility networks, interior decoration, and the facade of the apartment building, it becomes obvious that the specified amount of money for the maintenance and repair of the common property of our apartment building was not spent and was stolen.

Made a mistake in calculations

But for every move there is always a crowbar. Creditors, by a majority vote, switched the bankruptcy manager to monthly reporting and began to give tasks and make demands. The more work, the more time the arbitration manager spends on the procedure.

There are three ways out of this situation for the debtor’s team:

1. Increase the budget for work in proportion to the effort expended.
2. Start saving your time and making mistakes.
3. Remove yourself from the procedure and leave it to chance. This option is for those who do not know how to work well, but the budget does not allow it.

Our heroes took the second path.

They began to apply to the court with demands to remove the new arbitration manager. Numerous violations were identified. The connection between the new arbitration manager and the previous one came to light, and the new arbitration manager was also removed.

This time, the creditors were on the alert and promptly submitted their arbitration manager to the post of bankruptcy trustee in a timely manner. The court approved it, thereby putting an end to the scandalous case.

How to formalize the withdrawal of a HOA member from the partnership
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Lost to the opposition

After the sale of the identified property, the outstanding debt to creditors amounted to 2.5 million rubles. Part of this debt was created during the period of the previous chairman of the HOA, but most of it fell during the work of the second chairman.

The arbitration manager asked the court to hold both of them to subsidiary liability and built his line of attack technically and competently.

He referred to the fact that residents’ payments for the maintenance and repair of apartments, as well as for utilities, are of a targeted nature. Thus, the HOA should have spent the money received from residents only on relevant expense items, and not paid for other services.

The arbitration manager made a financial analysis, which revealed signs of deliberate bankruptcy in the actions of the HOA management. To consolidate these conclusions, the creditors asked the court to conduct a forensic examination in the expert organization they specified. The results of such an “independent” examination are usually known in advance.

The manager referred to the non-receipt of contracts and certificates of work performed by the debtor, which does not allow establishing the legality of spending the money. At the same time, there was no reason to believe that these documents were lost by the previous arbitration managers.

What responsibility does housing and communal services bear and for what?

Residents of multi-apartment buildings do not always know or understand the duties and responsibilities of housing and communal services assigned by the legislation of the Russian Federation. Therefore, questions arise about the amount of payment for the apartment and the services provided. Let's consider the norms and rules for the interaction of residents with representatives of housing and communal services.

According to the law of the Russian Federation, the relationship between the residents of an apartment building and the management company is sealed through an agreement. Each owner of the residential space receives a copy, including the Management Company. In a large number of cases, this norm is violated.

In the absence of a copy of the agreement, the apartment owner has the right to apply to the housing and communal services department to obtain one.

Important in the document are the rights and obligations of the company providing the services; it is strongly recommended to know them. The terms of service are the same for all residents. Service agreement. The responsibility of the housing and communal services management company includes the following items:

1. The period for which the services are provided (no more than five years).
2. Features of housing management.
3. Property composition of housing.
4. Address of an apartment building.
5. The procedure for calculating and calculating rent.
6. Providing reports on work performed.

It is necessary to include in the agreement a paragraph on the provision of reporting on the work done, if one is not found. Typically, the management company provides the latter at the end of the contract. This provision in the housing and communal services sector is enshrined in law by Article No. 162 of the Housing Code of Russia and must be strictly implemented.

Didn't provide strong arguments in his defense

The chairman of the HOA called a lawyer for help, but the line of defense was weak.

The court rejected the argument that the second chairman of the HOA was an improper defendant because he was not the chairman of the HOA. The citizen acted by proxy, made transactions, and managed money. And an unlimited number of persons who had the opportunity to determine the actions of a legal entity can be brought to subsidiary liability.

The chairman's statements that he spent money “where it was needed” were not confirmed by anything other than the balance sheets signed unilaterally by the defendant himself.

Confused arguments about the existence and size of receivables could not counter the official conclusions of the forensic examination that the debtor had transactions leading to deliberate bankruptcy.

Pay yourself: HOA liability for residents’ debts
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The court also rejected the last argument about the expiration of the statute of limitations for bringing to subsidiary liability. He explained that the limitation period should be calculated no earlier than the date of completion of the sale of the debtor’s property and the final formation of the bankruptcy estate.

Do TSN and HOA have the right to fine owners

Since the issue is extremely relevant, we decided to highlight it in this article. We help TSNs and HOAs throughout Russia and are pleased to offer you our terms of cooperation . This article is devoted to answering the question: Do TSN and HOA have the right to fine owners?

In modern legislation, a “fine” is understood as a measure of responsibility that is assigned for crimes or administrative offenses.

The imposition of fines on owners from TSN or HOA is not provided for by law. In our work, we noticed that in practice, “fines” in TSN/HOA can be of different legal nature:

Disguised real damage

Sometimes fines hide the amounts of compensation for losses that are paid to the property owners' association. However, here we are simply dealing with a confusion of terms (fine instead of real damage). The substitution of the term itself is not illegal, but it is illiterate from a legal point of view. The damage must not only be real, but also proven. If someone drove onto the lawn or damaged the tiles in the entrance, this must be confirmed, the amount of damages (“fine”) must be economically justified, and then compensation must be demanded. If a person does not want to do this voluntarily, the funds can be recovered through the court.

TSN replaces law enforcement agencies

Sometimes it happens that TSN issues a fine to the owner for smoking in the entrance; for parking on the lawn; for noisy parties at night; for littering the common area with bicycles, baby strollers, scooters, and cans; for breaking into the roof; for obscene language; for appearing on the premises while intoxicated, etc. All of these are indeed offenses. But in this case, TSN is illegally trying to collect a fine payable to the budget at its own expense.

Such violators can be brought to administrative responsibility only by law enforcement agencies, depending on the nature of their act, for example, under Art. 7.21 of the Code of Administrative Offenses of the Russian Federation, as well as according to the elements of administrative offenses provided for by the laws of the constituent entities of the Russian Federation, for example under Art. 3.13 of the Moscow Law of November 21, 2007 No. 45 “Moscow Code of Administrative Offenses.” At the same time, for violation of public order, such as violating the peace and quiet of citizens, prosecution is carried out regardless of the status of the person (owner or tenant) (see, for example, Resolution of the Moscow City Court dated August 12, 2015 N 4a-2101/2015; Resolution Oryol Regional Court dated March 1, 2017 in case No. 4A-41/2017). There are also cases of bringing persons who violate public order to civil liability, for example in the form of recovery of compensation for moral damages at the claim of injured neighbors (Appeal ruling of the Kemerovo Regional Court dated April 28, 2015 in case No. 33-4161, Appeal ruling of the Kurgan Regional Court dated July 14, 2016 in case No. 33-2435/2016). But collecting a fine on the TSN account is clearly illegal. In this case, TSN employees only have the right to draw up an act of violation, carry out photo and video recording, find witnesses, and call the police to impose a fine.

TSN disguises rent as fines

The legal procedure for leasing common property of premises owners is quite complex: it is necessary to hold a general meeting of owners, obtain a quorum, and decide on the use of income from business activities. There is a rather strange opinion among the people that TSN can circumvent the law if it actually leases out common property, and the owner is charged not with rental payments, but with fines. And the owner agrees to pay fines and continue to use the property. Such schemes are popular when renting out common premises, common property in underground parking, and when placing advertising on the facade of the house. This whole scheme works exactly until the case comes to court. And this is where TSN faces huge risks.

Firstly, TSN will never collect unpaid rent payments “fines” through the court, because TSN has no right to issue fines, and it will also be impossible to prove the existence of a rental relationship, because the owners at the general meeting did not give permission to rent out common property.

Secondly, tenants of common property can easily demand through the court the return of all fines (rent payments), since they were collected illegally, and TSN did not have the right to collect fines (unjust enrichment has arisen).

TSN is trying to impose its own fines

In practice, there are cases when TSN established its own fines, which limit the rights of owners and are in no way related to the law. For example, a fine for contacting the board at non-working hours, or for late submission of meter readings (this is a right, not an obligation of the owner), or an increased amount of fines for late payment of utilities.

In Russia, criminal and administrative legislation is considered exhaustive, that is, they cannot come up with and establish fines for violating any internal rules of TSN and HOA. If any of the owners violates the law, you need to contact the relevant authorities.

In accordance with the Housing Code, owners can establish the procedure for using common property. But, again, only within the limits within which the law allows the partnership of real estate owners to do this. No TSN has the right to establish additional fines beyond what is provided by law, and moreover, to fine for violation of the norms provided for by the Federal Law, local legislation, or to independently take the initiative to collect fines for committing administrative offenses. Such actions are usually qualified as arbitrariness (Article 19.1 of the Code of Administrative Offenses of the Russian Federation), provided that no significant harm is caused to the citizen.

It would be fair to note that the arbitrariness of HOAs and TSNs is very common in our time, since liability is a warning or the imposition of an administrative fine on citizens in the amount of one hundred to three hundred rubles; for officials - from three hundred to five hundred rubles (current as of the date of compilation of the material - approx.). Practice shows that if HOA/TSN employees return the fine illegally taken from him to the owner, they can only get off with a warning. Therefore, the benefit is obvious to everyone: you can collect fines and use this money, and return it only when the owner appeals to law enforcement agencies or the court.

However, you need to be careful here too. If significant harm is nevertheless caused, arbitrariness is considered a crime (Article 330 of the Criminal Code of the Russian Federation) . The visible boundary separating a criminal act from its administratively punishable counterpart is the significance of the harm caused. This circumstance was directly pointed out by the Constitutional Court of the Russian Federation in its Decision dated February 21, 2008 No. 92-O-O1.

When comparing criminal arbitrariness and the related administrative offense, we can come to the conclusion that the main criterion for distinguishing them is the varying degrees of public danger, expressed primarily in the significant harm caused, which characterizes the crime. This harm can be varied: material (property and physical), intangible (violation of the constitutional rights and freedoms of the victim, disruption of the activities of institutions, etc.).

This consequence is of an evaluative nature and is determined taking into account the specific circumstances of the case. If arbitrary actions do not cause significant harm to individuals or legal entities, the act is qualified as an administrative offense. The prerogative to recognize the harm as significant belongs to the court.

Call us at: +7 (495) 968 44 34, and we will advise you

Author: Alexander Sergeevich Sadov , partner of the law firm Subscriber Consult.
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