Q: What types of cooperatives are there?
A.K.: Housing cooperatives, housing-savings and housing-construction cooperatives are common. If we have anything in terms of attracting money from potential real estate buyers, it is mainly housing construction cooperatives. Potential buyers join its members, pay an entrance fee, current payments, and subsequently, upon completion of the construction of the facility and payment of the full share, they acquire ownership of the property - an apartment, which they initially intended to purchase by joining this organization. The scheme is approximately like this.
Answered by lawyer, founder of the Komissarov and Partners bar association Andrey Komissarov:
According to current legislation, you have the right to voluntarily terminate your membership in the housing cooperative based on an application sent to the housing cooperative. In this document, you notify the cooperative of your withdrawal and demand payment of the contribution you made. Such an application must be sent by a valuable letter with acknowledgment of delivery, so that in the future the fact of sending can be confirmed, or in another way confirming the fact of sending and receiving the application by the addressee. In this document you can indicate the fact that the deadline for the delivery of the object has been missed.
The procedure for returning the share contribution must be determined by the charter of the housing cooperative. In this case, the charter of the housing cooperative cannot provide for a return period exceeding 2 months from the date the housing cooperative made a decision to expel a member of the housing cooperative. If the cooperative does not return the amount of the contributed share, you can try to return this amount through the court. You also have the right to demand payment of interest for the use of funds from the moment when the housing cooperative is obliged to return the funds to you in the amount of the contributed portion of the share.
As for the housing cooperative's deduction of 20% of the amount of the contributed share contribution, the issue is ambiguous. It is necessary to study the wording of the clause of the agreement establishing the right of the housing cooperative to retain part of the funds, as well as the provisions of the charter. Unfortunately, when making decisions, courts often proceed from the fact that the principle of freedom of contract applies, and that the law does not contain rules that prohibit housing cooperatives from retaining part of the contributed share. Moreover, the law provides for the right of the housing cooperative to determine in the charter the conditions for payment of the share.
What rights does a shareholder have if the developer does not deliver the house on time?
What should I do if the developer of my residential complex goes bankrupt?
Q: Everyone often mentions the word “share,” what definition can be given to this concept?
A.K.: But no one knows what it is. A certain share, a certain substance. What rights this share should be attributed to from a legal point of view is also not clear, either in theory or in practice. Some go to the forest, some buy firewood with these shares. Someone enters into transactions for the purchase and sale of shares, judicial practice says that the share must be ceded. There is nothing really clear about how this is all regulated. Theorists reason as follows. A cooperative is an organization not associated with commercial activities. First of all, its current activities are aimed at satisfying the interests of shareholders. A person who has joined a cooperative must have exclusively utilitarian, consumer goals; everything that I do by joining this organization is associated with the absence of the intention of making a profit or commercial gain. Relatively speaking, I want to buy an apartment, I became a member, I pay current fees, and, in principle, as the law believes, nothing else should interest me. The assignment should not interest me, since there is a commercial component associated with resale, etc. Join the cooperative, pay the share and live in peace - this was the meaning of the law. Of course, he is insanely wild, in my opinion. Of course, we need to take into account the situation that I joined a cooperative, and then for some reason I cannot pay for the share, the financial component of my life has changed, and I want to transfer this share. From the point of view of the law, apparently, I should be expelled from the membership of the cooperative, and the money that I contributed to pay for a specific piece of real estate should be returned to me, apparently, too, if the cooperative has the money to return it to me. If not, then the cooperative must somehow, based on the general principles of civil law, settle accounts with me. I can’t answer this question specifically, nothing is clear.
Transfer of a share in a housing cooperative
In this article we will discuss the assignment of a share. What is a housing cooperative?
A housing cooperative is an organization that was created with the goal that the management of this organization could build a residential building and subsequently transfer ownership of the apartments in this residential building to those who are members of this housing cooperative.
In other words, this is a certain form of construction financing, an alternative to an agreement on shared participation in construction.
What types of cooperatives are there?
The most common are: housing cooperative, housing construction cooperative, housing savings cooperative. But in our country, basically, if anything, strictly speaking, manifests itself in terms of attracting money from potential real estate buyers, it is mainly housing construction cooperatives.
Under certain conditions, they collect money from citizens, they become members of a housing construction cooperative, make certain contributions (entry fee, current payments) and subsequently, upon completion of construction of the facility and payment of the full share, they acquire ownership of the property (apartment, which they originally intended to acquire when joining this organization). The scheme is approximately like this.
What is a share?
This is some kind of substance. It is also not clear what rights this share belongs to from a legal point of view, either in theory or in practice. Therefore, some go to the forest, some take firewood with these shares. Someone enters into share purchase and sale transactions.
Judicial practice suggests that the share must be ceded. Nothing is really clear there: how it is generally regulated and what is happening is not really clear.
Theorists believe that based on the meaning of a cooperative in general: a cooperative is an organization that, in fact, is not associated with any commercial activity.
It is aimed, first of all, at meeting the current non-commercial needs of its shareholder members. Our goals, as individuals who have joined a housing construction cooperative, should be exclusively consumer.
Everything that we subsequently do by joining this organization is connected, first of all, with our lack of any intentions in order to receive any profit or commercial benefit.
Relatively speaking, we want to buy an apartment, we have become members, we pay current fees, and, in principle, as the law believes, nothing else should interest us.
The assignment of a share should not interest us, because there is some kind of commercial component associated with resale, etc.
Therefore, I joined the cooperative, paid it off and live in peace. Relatively speaking, the meaning of the law was this. Of course, he is some kind of insanely wild, in our opinion.
Of course, we need to take into account situations related to the fact that we joined a cooperative, then for some reason we cannot pay for the share (the financial component of life has changed), we want to transfer this share to someone else.
But from the point of view of the law, apparently, if we cannot pay, we should simply be expelled from the members of the cooperative. We should be returned the money that we contributed to pay for a specific piece of real estate, apparently also if the cooperative has the money to return it.
And if they are not there, the cooperative somehow, based on the general principles of civil law, must settle with you based on the principles of compulsory law.
How does the assignment of a share in a housing-construction cooperative take place?
The procedure is such that the main document in a housing construction cooperative is the charter. The charter must indicate how the relationship generally occurs between those shareholders who are listed in this cooperative.
But the general imperative rule is that in order to be accepted as a member of a housing construction cooperative, the approval of the conference of the general meeting of participants of this housing construction cooperative is necessary.
Without the approval of the conference, you will not be able to become a member of the cooperative. In other words, if a person is a member of a cooperative and decided to cede his share to you, his share in this cooperative, they entered into some kind of civil transaction related to the assignment of such a share, and then you came to this cooperative, and the cooperative tells you: “ But we cannot accept you as a member; in connection with the upcoming exit of one or the concession of one of the members of the cooperative, someone else has already decided to purchase this apartment.”
There can be a huge number of all kinds of different nuances with these concessions and, in the end, you can pay money, relatively speaking, for this share, and sue the cooperative and the person from whom you bought this share. A very muddy story.
How and where does this assignment of shares take place? A person wanted to sell, found a buyer, where should they go: to a notary or just call a lawyer?
From the point of view of concluding a transaction, the notary cannot refuse you to perform notarial acts. A notary, like an ordinary civil law transaction, must certify such a transaction.
You can either conclude a transaction in simple written form (there are no requirements for a notarial form), or contact a notary and ask him to certify such an agreement, a purchase and sale agreement or an agreement for the assignment of a share, whatever will be there, this needs to be sorted out on the spot.
Practice suggests that if you want to assign a share, you must obtain prior consent from the board or conference of the housing construction cooperative on the assignment of such a share and on the inclusion of a new shareholder in the composition after the conclusion of the agreement.
How to buy an apartment in a new building by transfer?
How to draw up an agreement for the assignment of the right to share participation in construction, read here.
Read about the assignment of rights and obligations under the contract at the following link:
At least such consent or approval of this organization will allow you in the future, at least, in the event of refusal to include you, to demand compensation for losses.
That is, at least some mechanism is obtained for preliminary approval and consent. But so far we have not seen any judicial practice in cases where a housing cooperative gives preliminary consent to a new shareholder becoming a member, and then refuses. Therefore, perhaps, if they initially approved joining, they will not refuse in the future.
The assignment of shares and resale agreement are often mentioned. Is there any difference between these two types?
From our point of view, these are synonyms. There is no difference, because it is impossible to put an end to the essence of the share, as a certain legal category.
This is by analogy with purchase and sale agreements, shares of a limited liability company (in principle, business companies), there was some hesitation: what is this, a concession or a purchase and sale.
What is a share? Is this a property relationship or an obligation?
If it is property, then it is better to buy and sell, if it is an obligation, then it is better to make a concession, etc. As a result, ultimately, the practice leaned towards the purchase and sale of shares, as a kind of common substance, a set of property and proprietary obligations within the share of a business company.
It's completely unclear here. It is probably more correct to make a concession, since judicial practice qualifies the alienation of a share as a concession, it is probably necessary to concede.
Will the assignor under such an assignment agreement pay any taxes? How to calculate?
From a tax point of view, as far as we know, no deductions are applicable there at all. Neither a million rubles, nor 250,000 rubles, all this, as far as we understand, does not work.
If a person bought a share under a share accumulation agreement for two million and sells it for two million, can he deduct two from two million and get a zero tax base?
Regarding the assignment or sale of a share, from a tax point of view, nothing at all applies. If you bought a share for two million rubles and then sold it for two million rubles, from the point of view of existing tax practice, you will pay income tax on two million rubles at 13%.
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Q: How does the assignment of a share in a housing construction cooperative, for example, take place?
A.K.: The main document in a housing cooperative is the charter. The charter must indicate what relationships should exist between the shareholders who are registered in the cooperative. The imperative requirement is legitimately the following. To be accepted as a member of a housing construction cooperative, the approval of the conference of the general meeting of participants of the housing cooperative members is required. In other words, if I am a member of a cooperative and decided to cede to you my share, my share in this cooperative, you and I entered into some kind of civil law transaction related to the assignment of such a share, then we came to this cooperative, and there they say that cannot accept you as a member. They already have in connection with the seller’s withdrawal from membership, i.e. me, someone else who is already a member decided to purchase this apartment. There may be a huge number of different nuances associated with these concessions. As a result, you can pay money for a share and not be included in the members of the cooperative, sue them later, sue the person from whom you bought the share. A very murky story, in my opinion.
Experts from the online manual for buying and selling apartments “Apartment-without-Agent.ru” answer:
Raising funds from citizens for the construction of multi-apartment housing by creating a cooperative and concluding share contribution agreements is indeed permitted by law, including the famous law Federal Law-214 (Clause 3, Article 1, Federal Law-214).
But it is precisely this paragraph that states that the activities of these cooperatives are regulated by separate laws. This means that the protective functions that Federal Law No. 214 provides in relation to equity participation agreements (EPA) do not apply to share accumulation agreements that are concluded in housing cooperatives. In other words, postponing the delivery date of the house does not entail liability of the cooperative to the shareholder (unlike DDU agreements). And all possibilities for supplementing, amending and terminating the share contribution agreement are determined by the charter of the cooperative and the text of the agreement itself.
If the text of the share contribution agreement contains a condition regarding the withholding of 20% of the amount of the contributed funds upon termination of the agreement by the shareholder, and the shareholder signed up for this, then so be it. In this case, you have no grounds for demanding a refund of the full amount of deposited funds. The presence of a mortgage does not play a role here.
