The activities of housing cooperatives are regulated by 188-FZ and have two forms:
- The housing cooperative acts as both an investor and a developer.
- The housing cooperative is an investor, and the developer is another legal entity. An agreement was concluded between them for the provision of residential building construction services.
Housing cooperatives allow owners to choose a pricing policy when paying for housing, and plan measures to improve the conditions of comfortable living.
The activities of housing cooperatives are regulated by Art. 110 of the Housing Code of the Russian Federation, the charters and regulations of housing cooperatives and decisions of housing cooperative bodies (the board of housing cooperatives and the chairmen of housing cooperatives).
The difference between it and other types of MKD control
There are a number of other options for managing apartment buildings, between which there are some differences in comparison with housing cooperatives:
- Management Company. The management company signs an agreement with the owners of apartments in an apartment building for the provision of services, which include: utilities, home repairs, cleaning the area and receiving complaints/claims for service.
- ZhNK. While housing cooperatives build housing at the expense of their share contributions, housing cooperatives (FZ-315) do not build housing themselves, but help citizens raise their funds for the purchase of primary or secondary housing.
- Direct control of MKD. Acceptable for housing with no more than 16 apartments, regulated by Art.
161 Housing Code of the Russian Federation. In this case, homeowners pay utility bills without any intermediaries, which guarantees transparency of payments. REFERENCE: Additional issues to improve the pre-house infrastructure are resolved jointly and paid in equal shares. Such houses with a direct management system are prohibited from participating in the house capital repair program, which is allocated in accordance with 185-FZ.
Features of the housing cooperative agreement
The shareholder acts only through the board
The current legal entity of the housing cooperative is not the member of the cooperative, but the cooperative itself. He is also considered the customer for construction and the general investor. The contract is signed between the housing cooperative board and the developer. Interaction with the construction company is also carried out through the board. Therefore, an ordinary shareholder cannot make a claim directly to the developer.
The shareholder pays not for the apartment, but for the share
According to the housing cooperative agreement, the shareholder acquires not housing, but a share. Until completion of construction, ownership rights to real estate belong to the cooperative. The shareholder can register ownership of the apartment only after completion of construction work and full payment of the share. The share price may change if unforeseen expenses arise.
No registration in the State Register
The housing cooperative agreement is not subject to registration in the State Register, as it is considered an internal agreement between members of the cooperative. That is, there is no official confirmation of the relationship between the buyer and the housing cooperative. Registration occurs only after completion of construction.
The activities of the cooperative are regulated primarily by agreement and charter
The activities of the housing cooperative are based on the Housing and Civil Codes of the Russian Federation, the agreement and the charter of the cooperative. There is no special law. The widely known No. 214-FZ “On participation in shared construction of apartment buildings...” in the case of housing cooperatives only declares the possibility of such agreements. Therefore, the addition, amendment and termination of the housing cooperative agreement are regulated by the agreement itself and the charter of the cooperative.
In most cases, the Law “On Protection of Consumer Rights” does not apply
The housing cooperative agreement is concluded on a voluntary basis and implies that the members of the cooperative themselves organize the construction. Shareholders, roughly speaking, are both performers and consumers of services. Therefore, the Law “On the Protection of Consumer Rights” applies to housing cooperative agreements only if the agreement contains an indication of the cooperative’s responsibility to its shareholders.
We study the contract and charter
The main documents of the future shareholder are the agreement and the charter of the cooperative. Therefore, it is recommended to study both literally under a microscope. The form and content of the agreement and charter are not established by law. It is only noted that the provisions of the documents should not contradict the Housing and Civil Codes of the Russian Federation.
However, there are a number of provisions that must be present in the contract. These are the details of the parties, the object of the agreement, deadlines for delivery, the amount and procedure for payments, conditions for changing and terminating the agreement.
Details of the parties
The contract must contain:
- name and address of the cooperative;
- number and place of issue of the cooperative registration certificate;
- information about the chairman of the cooperative (full name, passport details, place of registration, TIN number).
Object of the agreement
The contract must contain:
- full name of the object under construction, description and address;
- detailed information about the developer;
- a detailed description of the purchase object (apartment) indicating the reference number, projected total and living area, layout, type of finishing, building and floor where the housing is located;
- algorithm of actions in case the designed housing area does not correspond to the real one.
Due dates
A specific date for delivery of the house must be indicated. The cooperative often stipulates that the completion date depends on the progress of construction. In such cases, it is recommended to either achieve a clear date or refuse to join this housing cooperative.
Payments: how much and when to pay?
The co-operative treasury consists of the following payments: entrance share, shares and membership fees. Share contributions are spent on construction, membership fees are spent on maintaining the cooperative. The agreement must determine the amount and order of all contributions.
In addition, the contract must stipulate:
- procedure for recalculating payments;
- additional charges. For example, the cost of paying government fees and processing documents.
Each payment must be documented. If the share is paid in full, the cooperative must provide a receipt for this. Based on this document, ownership rights are issued.
Conditions for changes and termination of the contract
These conditions are established by the contracting parties. As a rule, the contract is terminated early in the following cases:
- liquidation of housing cooperatives;
- exclusion of a shareholder from the cooperative;
- withdrawal of a shareholder from the cooperative.
The procedure for action in each case is prescribed in the charter of the housing cooperative.
An example of a cooperative agreement can be viewed here. This agreement is not a standard one. Therefore, it is best to consult with a lawyer.
Its advantages and disadvantages in comparison with other forms of MKD management
According to Art. 161 of the Housing Code of the Russian Federation, citizens have a choice of form of management for apartment buildings. Each of them has its own characteristic features in comparison with housing cooperatives.
Advantages of a housing construction cooperative
- Insurance against increased construction costs if a third-party developer is involved, because the exact amount is fixed in the contract with the developer for the provision of house construction services.
- The shareholder, in case of leaving the housing cooperative, can withdraw the amount of the initial contribution, in turn, the cooperative does not stop working and simply resells the share to another participant.
- According to the agreement, the construction project itself acts as a guarantee of the safety of funds.
- Owners can pay the share after moving into the apartment in installments, if an installment plan agreement is concluded.
Disadvantages of housing cooperatives
- Compared to a management company, a cooperative has fees for utilities and non-transparency of payments.
- In comparison with a management company that is specialized in providing a number of housing and communal services, in a housing cooperative the selected representative office may not be competent enough to fulfill its obligations.
Nuances when joining a cooperative
As noted above, the agreement to join a housing cooperative is not registered with government agencies. And the absence of official confirmation of the buyer’s relationship with the cooperative determines the possibility of fraud - the buyer can carefully pay all the fees, but in the end never receive the promised apartment, since he will not be able to prove in court that he is a member.
To avoid this, it is necessary to accompany each action with receipts. It is necessary to require a receipt of acceptance of the application to join the cooperative, a document confirming the fact of acceptance into the cooperative.
In addition, you should carefully read the Charter, for example, the condition for joining a housing cooperative may be a decision of the general meeting, and in this case you need to request an extract from the housing cooperative register about the adoption of such a decision; in this case, one application will not be enough. And only after all the documents are in hand can any payments begin.
Risks of members and founders of the cooperative themselves
- If the housing cooperative fails to comply with financing requirements, the developer may under-provide a certain number of apartments.
- Leaving the cooperative is complicated by the fact that you cannot simply sell your share, because according to the charter you must first offer the share to other owners of the housing cooperative. It's hard to sell a home because... a new buyer in this situation can only use cash when purchasing, because such an apartment is not suitable for a mortgage.
- In the event of bankruptcy of a housing cooperative, there is a risk of non-repayment of money.
- In case of controversial situations, no payment of penalties and losses from the housing cooperative is provided.
The Consumer Rights Protection Law will not protect the shareholder of housing cooperatives
The Law on Consumer Rights, which strictly regulates the relationship between the service provider and the customer (and is valid when registering a DDU)
does not apply to members of housing cooperatives.
After all, in fact, here we are not talking about the provision of any services; the members of the cooperative themselves build for themselves. Accordingly, obliging the developer to correct any shortcomings is extremely difficult, especially if the investment agreement does not provide for warranty obligations. Moreover, there can be no talk of paying any penalties or fines on the part of the developer.
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Is there any economic benefit to creating a building cooperative?
Of course there is. In addition to the above advantages, the developer, when creating a housing cooperative, has the opportunity to legally reduce the cost of construction of residential buildings. The fact is that the share contributions paid by shareholders for the opportunity to purchase a new building through a housing cooperative cannot be subject to VAT. At the same time, with the model of shared participation in construction, the developer is forced to include the tax amount of 18% into the cost of a residential building.
Another beneficial advantage is that housing cooperatives can attract financial resources at the earliest stages of construction. This also makes it possible to significantly reduce the cost of investment. In addition, they are exempt from income tax on property received in the form of a share contribution.
Court decisions
How to return money for an apartment if the contract was not concluded in accordance with No. 214-FZ
Violation of deadlines for delivery of the house by the developer
Gray sales schemes in new buildings
Failure to meet deadlines by the developer
The apartment plan does not correspond to the contract
The developer returned the money to the shareholder
