Housing and housing construction cooperatives

Housing and construction cooperatives are associations of individuals and often legal entities whose main goal is the construction and subsequent maintenance of apartment buildings and their common property.
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Due to the fact that these organizations represent a rather complex and multifaceted object of legal functioning, the regulatory regulation of its activities is quite complex.

Legal standards

The main regulations that should be relied upon when working with this type of cooperatives include:

• Housing Code of the Russian Federation . In this normative act, articles 110 to 134 are devoted to all issues of the functioning of housing cooperatives as a legally valid association, which include detailed information about the mechanism of functioning of this association from the moment of its creation to liquidation, and also regulates the rights of its participants (Chapter 12 of this normative act) ;
• Federal Law No. 215-FZ of December 30, 2014 “On Housing Savings Cooperatives” . This law regulates issues related to the possibility of the existence and functioning of such associations as housing cooperatives for the purpose of construction and subsequent maintenance of the housing being built. In addition, it is this Federal Law that says that in the Russian Federation it is possible to organize such a form of construction when funds for the construction of an apartment building are contributed by individuals and legal entities by making share contributions, which will subsequently be used to implement plans for the development of the territory;
• since the implementation of share or shared participation in the ongoing construction of apartment buildings without appropriate legal regulation is impossible, the legislator adopted the Federal Law “On participation in the shared construction of apartment buildings and other real estate ...” dated December 30, 2004, number 214-FZ . This Federal Law itself speaks about the possibility of participating in equity in the construction of apartment buildings in the form of making some type of contribution, for example, shares or another type. The need to mention this normative act is due to the fact that the purpose of creating and operating a housing construction cooperative is precisely to carry out housing construction by contributing their part of the financing to its participants in the form of share contributions.

PROS AND CONS of housing cooperatives

What is a housing cooperative from the buyer's point of view? Let's look at the main pros and cons of this scheme of becoming a property owner. Let's start:

This is important to know: Buying an apartment by a foreign citizen

There are other disadvantages to the housing cooperative scheme. In fact, you have fewer rights than the same participant in shared construction under Federal Law 214. The price for an apartment is rising, the developer has no responsibility, and there is no way to get a penalty. And constantly additional expenses - all this is the reality of the modern approach to housing cooperatives.

Housing cooperative and the right to join it

The right to join a housing construction cooperative is regulated by Articles 111 and 121 of the Housing Code of the Russian Federation. In accordance with the content of this article, only certain categories of participants can become members of such a cooperative, namely:

• individuals who have Russian citizenship if they have reached the age of sixteen;
• legal entities that were created before the entry into force of the Federal Law “On Promotion of Housing Construction” (for this category of legal entities there is a restriction on the exercise of their rights to participate in housing cooperatives in the form of being a member of the cooperative only if it was created before before the said law comes into force);
• legal entities that act as owners of residential apartments or non-residential premises in an apartment building , if a cooperative was created to manage such a building, which the legal entity joined.

Moreover, if citizens are recognized as low-income or in need of improved housing conditions on the basis of the provisions of Article 49 of the Housing Code, then such citizens have a priority right to join a housing construction cooperative over other categories of potential members.

As for the mechanism for joining a housing cooperative, it looks like this:

• a potential member of a particular cooperative submits an application to join it to the chairman of the cooperative or to its board;
• When submitted, a mark is placed on it indicating when and by whom it was accepted;
• the application must be reviewed within one month from the date of submission to determine the possibility of accepting a specific citizen or legal entity;
• if the board recognizes that a potential member meets the requirements of the functioning of the cooperative and the norms of current legislation , his application for membership is considered by the general meeting of members of the cooperative;
• if a positive decision is made at the meeting regarding permission to join a potential member, he will need to make an entrance fee or share payment , which will confirm his right to membership in the cooperative.

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Organization of a housing construction cooperative

A housing cooperative can be organized only if its organization fully complies with the rules provided for in Article 112 of the Housing Code of the Russian Federation. In accordance with the Housing Code of the Russian Federation:

• a cooperative may have at least five members , however, their number cannot be more than the number of residential and non-residential premises provided in a residential building under construction or acquired;
• the creation of a cooperative can only be formalized through a special general meeting of potential members and a specially signed protocol of the founding meeting;
• those persons who are ready to organize a housing construction cooperative and can confirm their such desire have the right to participate in the constituent meeting itself;
• after the procedure for state registration of a cooperative has been carried out, all those persons who spoke at the constituent meeting for its formation and then voted, recording the voting results in the minutes of the constituent meeting, become members of such a cooperative.

When drawing up the minutes of the founding meeting, it should be remembered that the decision of the meeting will be legal only if all its participants, who are potential founders of the cooperative, vote for the creation of the cooperative.

Court decisions

Gray sales schemes in new buildings
The developer returned the money to the shareholder

Violation of deadlines for delivery of the house by the developer

How to return money for an apartment if the contract was not concluded in accordance with No. 214-FZ

Dispute with LLC Lenspetsstroy

Failure to meet deadlines by the developer

Statutory documents of housing cooperatives based on regulations of the Russian Federation

The statutory documents for a housing construction cooperative must be prepared before submitting documents for registration to government agencies. Key documents include:

• the actual Charter of the cooperative . It must contain information about the full name of the legal entity being created, its legal and postal addresses, the purposes for which it was created, as well as what objects of its activity are decisive. In addition, the Charter must contain information about the procedure for joining the cooperative, paying contributions for such entry, as well as the mechanism for leaving the cooperative and receiving back your contribution. Also within the framework of the Charter, information is reflected on possible measures of liability of members of the cooperative for violations of their obligations, including making share contributions. The charter reflects information about how the cooperative is managed, in what order decisions are made within it, including when it comes to issues that must be resolved by individual decisions and with the help of a qualified majority of votes of the members of the cooperative. The Charter also imposes the obligation to reflect all legal issues that relate to the possible liquidation and reorganization of the cooperative. In addition, it is in the Charter that information can be reflected on how it is planned to manage the cooperative, including with regard to the use of various types of information systems (for example, GIS housing and communal services);
• documents confirming the presence of the authorized capital of the cooperative being created;
• a list of founders in the form of a register indicating their passport details and other identification information to facilitate interaction with government authorities in the future.

The presence of other constituent documents is possible only if this does not contradict current legislation.

Advantages of housing cooperatives

A housing construction cooperative has the following advantages:

1. Receiving installments when paying the cost of an apartment on favorable terms. Most developers provide the opportunity to make monthly share contributions. The terms can vary and reach ten years. There are no terrible interest rates, as is the case with a mortgage. The system is completely transparent. Companies involved in shared participation usually offer installment plans only until the house is put into operation. Housing cooperative members can pay their share for several years after moving in.
2. After completion of construction and commissioning of the house, the rights to manage it are transferred to the housing cooperative. If we make a comparison with the DDU, then upon completion of construction work its members create a homeowners’ association, which assumes all responsibilities for managing the common property of the house. It is possible to form an HOA only after completing the procedure for registering property rights, which, as a rule, takes a long time, and during this period the residential building remains without full management.
3. Security in case of bankruptcy of housing cooperatives. If the developer is found insolvent, members of the housing cooperative may complete the construction using another contractor. This expresses one of the main advantages regarding equity participation agreements. In the event of bankruptcy of the developer, participants in the DDU will be forced to demand the return of funds through the courts, and this takes a long time. Participants can create a new cooperative and apply to the authorities with a request to transfer the unfinished house to the balance of the new housing cooperative.
4. Members of the cooperative have the right to participate in the construction and future operation of the building. Moreover, housing cooperative participants are granted access to all financial documents, which ensures complete transparency of the system. Shareholders also have the right to re-elect the current management.
5. Share contributions are not subject to taxes. This seriously reduces the overall cost of construction costs.

The procedure for registering housing cooperatives with government agencies

Article 114 of the Housing Code of the Russian Federation states that the procedure for state registration of a housing cooperative must occur in strict accordance with the norms of current legislation regarding the registration of legal entities. Law enforcement practice shows that this procedure is as follows:

• after the minutes of the constituent meeting have been signed, you will need to contact the Federal Tax Service , since this body registers all legal entities in the Russian Federation;
• based on the submitted package of documents, an entry is made in the Unified State Register of Legal Entities on the creation of a new legal entity;
• upon completion of the registration procedure, the chairman of the cooperative receives two certificates - on the registration of a legal entity and on the registration of an organization registered in the Russian Federation with the tax authorities at its location.

From the moment of receipt of the last two documents, the legal entity is considered officially formed and can accept those potential members who meet the requirements for joining the cooperative.

Housing cooperative agreement (SAMPLE)

We are not trying to dissuade you from buying an apartment in a housing cooperative. Often this is a really profitable investment and getting an apartment in a fairly short time. In almost all cities of Russia there are successful examples of the construction of apartment buildings through the housing cooperative mechanism. And a lot of elite housing, in principle, is built only using this mechanism. Therefore, check the housing cooperatives, weigh the risks and make your own decision.

If you still decide to purchase an apartment this way, let’s figure out what a housing cooperative agreement is when purchasing an apartment. There are a few things you need to pay attention to.

• You need to read the contract with the housing cooperative very carefully. There is no form, the form and content of which is regulated by regulatory documents. Therefore, we check all information for compliance with the law. It is best to show such an agreement to a lawyer who can voice an expert opinion on the preservation of your rights as a citizen
• Responsibility of the housing cooperative - the contract must contain information about what happens if it becomes impossible to transfer the apartment
• The algorithm for transferring the apartment after the construction of the house, the time frame for its transfer and related information must be prescribed.
• Check whether the chairman of the housing cooperative has indicated the distinctive features of the house in which you are purchasing an apartment - its number of storeys, project declaration, improvement facilities according to the project, the presence of an elevator. Of course, a general meeting of residents can change this without any problems, but it is better to have such data in the contract - it may be useful in court.
• You will also need the details of the housing cooperative - usually everyone indicates this data, but it would be a good idea to check their availability.
• Distinctive features of your apartment - what floor it is on, its area, layout, number of rooms, area of ​​each room, direction of windows, presence of a balcony and loggia

Check out the standard form of an agreement with housing cooperatives on our website ()

Housing cooperative management bodies

Article 115 of the Housing Code of the Russian Federation clearly defines what exactly can be considered the management bodies of a housing construction cooperative. It is on the basis of this article that the corresponding section of the Housing Cooperative Charter should be filled out. Based on this article, the governing bodies of a cooperative can only be:

• general meeting of housing cooperative members . All decisions made at such a meeting can be recognized as legal only if at least fifty percent of the members of the cooperative were present at the meeting, as well as the decision was made by more than half of the members of the cooperative. If we are talking about issues reflected in the Charter of the cooperative, which are subject to consideration by voting at a general meeting, then at least three quarters of the members of the cooperative must vote at such a meeting;
• conference of cooperative members . It is convened only if such a possibility is provided for by the Charter of the cooperative, and the total number of members of such a cooperative exceeds fifty. In this case, authorized representatives are selected from the total number of members who will make decisions at the meeting. However, voting at a conference is unauthorized, so voting in this case is carried out in absentia and in absentia, and the results are entered into a special protocol;
• cooperative board . The choice of this governing body is made from among the members of the cooperative for the period determined in the Charter of the cooperative. The election takes place at one of the meetings by voting for proposed candidates for members of such a board. The procedure within which the board of a cooperative should function is established not only by the Charter, but also by other internal documents, for example, regulations or work regulations. The board is entrusted with the responsibility of managing the activities of the cooperative in the current order, as well as the authority to select the chairman of the cooperative. As for reporting, the board submits it to the general meeting of members of the cooperative or a specially convened conference;
• chairman of the cooperative . He is selected from among the members of the board of the cooperative and carries out his activities in accordance with the rights and obligations assigned to him, as set out in the Charter of the cooperative. Other internal acts do not apply to the chairman, while he is obliged to act in accordance with the requirements of current legislation. All activities of the chairman must be carried out only in accordance with the interests of the cooperative and its members.

CHECKING HOUSING BC

Of course, you will not be able to completely protect yourself from delays in the delivery of your house, from an increase in the cost of the apartment and other problems. But it’s worth trying to check not only the contract with the housing cooperative itself, but the organization

• Check with the chairman to see if the company is in bankruptcy. Data can also be viewed in local media
• Find out how many more houses the chairman of the housing cooperative manages. If several projects are launched at once in different parts of the city, this is a bad sign. It often happens that the chairman begins the construction of one object, collects money and spends it. Then he needs funds for completion - he opens another facility, collects money from the second and spends on the first - and so on until the number of facilities becomes too large and his activities come to the attention of law enforcement agencies
• You need to know how decisions are made to increase the cost per square meter - check the organization’s charter
• You need to get to the construction site, find a stand with information about construction - it should contain information about the general contractors. They also need to be “monitored” by the media.
• Find out from the chairman whether the land plot under the future house is owned. Ask to review the title documents.

Requirements for officials

Since a housing construction cooperative is a legal entity, its officials are subject to certain requirements that must be taken into account when electing such persons. Otherwise, all activities of such officials may be challenged, which will cause difficulties for the functioning of the cooperative itself. Such requirements include (based on Article 116.1 of the RF Housing Code):

• no criminal record for intentional crimes;
• absence of administrative punishment in the form of disqualification or complete expiration of such punishment;
• absence in the work history of positions of managers or deputies, chief accountant or accountant in organizations engaged in major repairs, reconstruction, construction of capital construction projects or in organizations that conduct engineering surveys and design of such work, if these organizations were declared bankrupt or excluded from the registers and members of self-regulatory organizations in the specified areas, and three years have not passed since such sanctioning actions in relation to the specified organizational ones.

If at least one of the listed violations is discovered, all legally and financially significant actions of such representatives of the cooperative board may be challenged, including in court.

Rules for the reorganization of housing cooperatives based on the provisions of the Housing Code of the Russian Federation

The reorganization of a housing construction cooperative can only be carried out in accordance with the decision of the general meeting of members of such a cooperative. This is stated in Article 122 of the RF Housing Code.

Such a decision must be recorded and sent to the authorized state bodies to make changes to existing records in the Unified State Register of Legal Entities.

Based on the decision of the meeting of members of the cooperative, the housing cooperative can only be reorganized into a homeowners' association.

In this case, you will need to go through a full reorganization procedure.

Disadvantages of housing cooperatives

Housing cooperatives also have disadvantages:

1. Procedures for purchasing real estate through a housing construction cooperative are carried out without state registration. This fact allows for fraudulent transactions (for example, double sale of an apartment).
2. Housing cooperatives cannot be held liable if construction deadlines are violated or construction defects are discovered. Participants can only re-elect management, but cannot subject the company itself to any sanctions.
3. The contract cannot specify the final cost of the living space.
4. Regulation of the process of real estate sales through housing cooperatives seems insufficient. It is carried out using the funds of the Housing Code of the Russian Federation, and not by Federal laws.

In the video about housing construction cooperatives

Despite the existing shortcomings, housing cooperatives are now gaining increasing popularity in our country (according to statistics, the share of such developers is growing every month). Participants are advised to carefully study the contract for any pitfalls before signing. The optimal solution seems to be to order with other members of the cooperative.

What is a housing cooperative (housing cooperative)? Becoming the owner of an apartment in a new building is quite simple: you go to the developer, pay the money, and sign the contract. Is that all? Not really. There are a lot of subtleties, especially in the primary market. For example, you decide to buy an apartment in a housing cooperative. So, you need to understand what laws govern the process, what form of relationship with buyers the developer has chosen. Understand what a housing cooperative is and how this mechanism differs from equity participation agreements. We talk about all the features of buying an apartment in housing cooperatives.