How is a homeowners' association agreement drawn up with homeowners?

It is this fact that regulates all the activities of such organizations, as well as the scope of their actions.

In this article, we will study in detail the issues that relate to the drafting of an agreement between the owners of housing in an apartment building and the HOA bodies, and also delve into the study of various nuances and controversial issues on this topic.

You can find out about the pros and cons of an HOA, as well as what objects of common property and local area are on its balance sheet on our website.

Concept

Is it obligatory to enter into an agreement?

As we have already found out, any apartment building needs proper care.

Carrying out repair work on time. Timely repair of broken things, maintaining the territory in good condition, actions aimed at increasing the comfort of residents. The implementation of these tasks falls on the shoulders of specially created organizations , the most popular of which in our country are management companies and partnerships.

Of course, services are provided on the basis of incentives and rewards, which is regulated by the relevant legal act. It is this document that regulates all issues that can be raised between the parties and which are of utmost importance.

Since this article is about a homeowners’ association, it is advisable to initially talk about what this organizational and legal form is.

The partnership is represented as a legal entity that has official registration. In addition, this organization promotes itself as a non-profit and for the most part consists of owners of premises in an apartment building.

The partnership may also include residents of neighboring buildings. All these persons together can manage not only the apartment building, but also the general territory on which the buildings are based.

Members of the HOA do not have an official salary, but carry out their activities voluntarily, based on gratitude from residents in the form of a small percentage of the amount of work performed.

The answer to the question of whether it is necessary to enter into an agreement is quite simple if you are savvy in terms of housing law. And if not, then you can get confused .

On the one hand, the HOA is the owners themselves, why enter into an agreement with them. On the other hand, not all organizations act in the interests of the entire house, and often act in their own interests, therefore, the document will best regulate the rights and obligations of the parties regarding the maintenance of the house.

You can learn about the rights and obligations of the board and founders to residents from our article.

Sample agreement with homeowners association.

Read on our website about the procedure for creating an HOA, in particular about its organization in an apartment building.

Sources of obligations

Article 307 of the Civil Code of the Russian Federation (Civil Code of the Russian Federation) establishes:

"1. By virtue of an obligation, one person (debtor) is obliged to perform a certain action in favor of another person (creditor), such as: transfer property, perform work, provide a service, contribute to a joint activity, pay money, etc., or refrain from a certain actions, and the creditor has the right to demand that the debtor fulfill his obligation.

2. Obligations arise from contracts and other transactions, as a result of causing harm, as a result of unjust enrichment, as well as from other grounds specified in this Code.”

Part 1 of Article 8 of the Civil Code of the Russian Federation establishes a list of sources of rights and obligations, namely:

“Civil rights and obligations arise from the grounds provided for by law and other legal acts, as well as from the actions of citizens and legal entities, which, although not provided for by law or such acts, but due to the general principles and meaning of civil legislation give rise to civil rights and obligations.

In accordance with this, civil rights and obligations arise:

1) from contracts and other transactions provided for by law, as well as from contracts and other transactions, although not provided for by law, but not contrary to it;

1.1) from decisions of meetings in cases provided for by law;

2) from acts of state bodies and local government bodies, which are provided by law as the basis for the emergence of civil rights and obligations;

3) from a court decision establishing civil rights and obligations;

4) as a result of the acquisition of property on the grounds permitted by law;

5) as a result of the creation of works of science, literature, art, inventions and other results of intellectual activity;

6) due to causing harm to another person;

7) due to unjust enrichment;

due to other actions of citizens and legal entities;

9) as a result of events with which the law or other legal act connects the onset of civil consequences.”

As can be seen from the presented norms, the contract is one of the sources of obligation. If we consider the relationship for the provision of housing maintenance services between the HOA created in an apartment building and the owner of the premises in this apartment building, who is not a member of the HOA, then the source of rights and obligations in these relations will be the contract.

It may seem that the rights and obligations in this case arise from the decisions of the meeting (for example, a general meeting of premises owners or a general meeting of HOA members), but such a conclusion will not be entirely correct.

The general meeting of premises owners has the right to choose the method of managing apartment buildings (including management of a homeowners’ association), can make a number of decisions within its competence (in accordance with part 2 of article 44 of the Housing Code of the Russian Federation), and these decisions in accordance with part 5 Article 46 of the Housing Code of the Russian Federation are mandatory for all owners of premises in the house, regardless of their participation or non-participation in the general meeting.

If an HOA is created, the highest governing body of the HOA is the general meeting of the HOA members; the competence of such a general meeting is determined by Part 2 of Article 145 of the Housing Code of the Russian Federation.

Thus, both the decisions of the general meeting of premises owners and the decisions of the general meeting of HOA members can indeed be sources of obligation of the owners of the premises of the house. In particular, decisions of these general meetings may determine the terms of contracts, including contracts for the provision of services and performance of work on the maintenance of residential premises (which, in accordance with Articles 154 and 158 of the Housing Code of the Russian Federation, include the management of apartment buildings, maintenance and routine repairs of common property, communal resources consumed in the maintenance of common property ).

However, in accordance with the previously cited part 6 of Article 155 of the Housing Code of the Russian Federation, owners of premises in apartment buildings who are not members of the HOA pay a fee for the maintenance of residential premises in favor of the HOA precisely in accordance with the contracts. In addition, paragraph 2 of Article 138 of the Housing Code of the Russian Federation establishes the obligation of the HOA “to manage an apartment building in the manner established by Section VIII of this Code.” At the same time, part 1 of Article 161 of the Housing Code of the Russian Federation (the norm is included in Section VIII of the Housing Code of the Russian Federation) defines the requirements for the management of apartment buildings and establishes that the Rules for the management of apartment buildings are approved by the Government of the Russian Federation. In accordance with the above provision, the Government of the Russian Federation, by resolution No. 416 dated May 15, 2013, approved the specified Rules (Rules 416), subparagraph “e” of paragraph 4 of which establishes “conclusion of agreements for the provision of services” as the responsibility of the person managing the house (including the HOA) and (or) performing work on the maintenance and repair of common property of premises owners in an apartment building.”

Based on the above norms, the provision of housing maintenance services by the homeowners' association to owners of building premises who are not members of the HOA is carried out precisely on the basis of the relevant agreement.

Legislative regulations

In accordance with Article 135 of the Housing Code, a partnership is created for the purpose of managing a multi-apartment building.

In addition, the Housing Code regulates in its articles other aspects related to the management of a house and interaction with its inhabitants.

Thus, Article 137 of the Housing Code provides for the possibility of a partnership to enter into acts in the form of agreements for the maintenance and repair of an apartment building with its direct participants.

In addition, in paragraph 1 of Article 138 of the Housing Code, the legislator obliges the partnership to conclude these acts-agreements with the owners in writing and strictly follow their clauses.

The issue of payment for activities is also under the jurisdiction of housing law. Code norm 155 obliges owners to regularly make payments that go towards paying the costs of the partnership’s activities for improving and maintaining the house in proper condition.

Read about the responsibilities of a manager in our article. Find out also how to register an organization in the Housing Information System.

Document drafting standards

By law, an agreement can be drawn up in simple written form . However, modern technologies require the use of printed text. It’s easier and faster, and the text can be saved electronically. Another advantage is that such text will always be legible and understandable, reducing the likelihood of errors.

For all these reasons, contracts are signed on printed form.

ATTENTION! The document must meet all standards for the preparation of such documents and contain the necessary information.

Document form

In what form is it compiled?

Owners, before using the services of the partnership, must draw up an appropriate agreement with them.

If this question is also relevant for you, we advise you to devote time to studying this item.

A written agreement, that is, drawn up by hand, was very popular a couple of years ago. But now it has lost its relevance for a number of reasons:

1. The written text is often difficult to understand.
2. Written text may be lost.
3. If errors are made, it may be invalidated.
4. There is no way to save it on electronic media.

From these disadvantages follow the advantages of a document compiled using a computer.

If you still don’t know which method to give preference to, then it’s better to make a choice in favor of printed text rather than handwritten.

You can find out how to complain about the HOA or leave it on our website.

Main points

What should I contribute? Any contract consists of a number of clauses, each of which reflects the essence of the legal relationship that is beginning.

There are certain aspects in the agreement between the partnership and the homeowners that must be mandatory . Let's get acquainted with them:

1. Sides . It is imperative to describe which parties take part in this act and by whom exactly they are represented. The more specific, the better.
2. The subject is the legal relationship between the partnership and the owners regarding the maintenance of an apartment building. In this paragraph it is necessary to describe what actions are included in the subject of the agreement.
3. Rights and obligations . After the item is announced, it is necessary to describe that the owners have the right to count on it, but only if they pay regularly. It is also necessary to describe the rights and obligations of the members of the partnership.
4. Responsibility is also an equally important point. Sometimes it happens that one of the parties does not fulfill one or another point, thereby violating the rights of the other party.

It is necessary to clearly state the measures of responsibility so that the parties do not have the desire to systematically terminate the agreement.

5. It is necessary to pay due attention to the issues of termination and modification of the agreement. Typically, change occurs in a situation where both parties want to innovate.

Termination is possible by mutual agreement of the parties, as well as due to failure of one of the parties to fulfill the most important conditions.

One way or another, in your case, items can be added and changed.

Read also:  Urgent registration of a cadastral passport in Moscow
6. If one of the participants has non-standard, special terms of interaction, then these should also be indicated first of all so that over time information about this clause of the agreement is not lost.

You can learn how to make a statement to the HOA about leaks, flooding and repair requirements from our article.

Where to start, where to turn?

If you want your home to be maintained by a homeowners' association, then first of all you need to find out the opinion of the other residents on this issue.

For this purpose, a general meeting of owners is convened, at which it is decided whether the residents trust their home to the HOA. After this, you need to select a company.

You can form it yourself from the residents themselves, but to do this you need to go through all the registration procedures as a legal entity.

If you have a company in mind that services a nearby house , you can offer cooperation to this HOA.

After all the formalities have been completed to perfection, it makes sense to move on to the next step.

Where do they apply and where to go? The agreement between a specific homeowner and the owners' association must be drawn up in the proper form . As a rule, the partnership should have a template, based on which the parties can write an agreement.

If there is no sample, then it is easy to find on the Internet. In order for the document to be issued, you do not need to visit any government agency.

An agreement between the partnership and the homeowner can also be drawn up at the partnership office, the main thing is that the document contains the signatures of the parties.

It is important to remember that this document must be drawn up in two copies . One remains in the hands of the owner, the other remains in the office of the homeowners association.

How to correctly compose and format?

Let's take a closer look at how to conclude an agreement .

1. The agreement must be drawn up in writing on A4 sheets .
   The first section should include a presentation of the parties indicating the full name, year of birth and registered address of the resident, and the name of the partnership with the address on the other side. In addition, at the end of the agreement the passport details of the tenant and the bank details of the housing association as a legal entity must be indicated.
2. The subject of the agreement is the carrying out of real estate maintenance work and the provision of utility resources to the subject party to the agreement for a certain fee.
3. Next, you need to list what applies to communal resources (electricity, water supply, heating), and What kind of work does the HOA undertake to carry out?:
   • cleaning the area;

   garbage removal;

4. washing common areas (entrances);
5. painting walls, etc.

In the contract for services, opposite each of them you need to indicate the frequency of its provision (for example, once every 3 days).

6. Next you need to specify responsibilities of a resident entering into a transaction with partnership:
   making regular payments on time;
7. compliance with the rules for the operation of joint property;
8. providing reliable information about the number of persons living in the apartment;
9. ensuring access of regulatory authorities to metering devices;
10. compliance with other terms of the transaction.
11. An essential point of the agreement is the consent of the apartment owner to represent his interests in third-party contract repair and resource supply companies in order to effectively provide services.
12. A separate section specifies the liability that occurs in the event of failure by the parties to fulfill their obligations .
    Such liability may include penalties accrued for late payment of services and utilities. Important! In case of late payments, the amount of the penalty specified in the agreement cannot exceed one three-hundredth of the Central Bank refinancing rate established in the calendar year of the agreement.
13. Since the board of the housing association is elected for a maximum of two years (clause 2 of Article 147 of the Housing Code of the Russian Federation), the transaction agreement on the provision of services and resources is also concluded for two years, after which the transaction is considered renewed automatically if neither the owner of the housing nor the housing association declared their desire to terminate it.
14. Indicating ways to resolve disputes and conflicts between the parties to the agreement will help avoid litigation. Separate paragraphs should indicate what pre-trial methods will be used to resolve disputes. Such methods include negotiations or written complaints to the board , specifying the time frame for consideration of complaints.

Regardless of the terms of the agreement, each tenant has the right to file complaints against the board of the association to the following authorities :

• housing inspection;
• the prosecutor's office;
• court.

Changes can be made to the contract by mutual agreement of the parties , but you can indicate points on which the housing association can change the conditions unilaterally. This is necessary so as not to renew the contract every time tariffs increase or housing legislation changes.

What documents are required?

Of course, the agreement must be drawn up on the basis of some documents.

In order for the agreement to be executed in accordance with all the rules, the partnership provides the participants with the charter for review, as well as documents from the tax authority on the registration of the partnership.

In turn, the owner must have in hand a document confirming his identity, that is, a passport, as well as a title document for the apartment, that is, ownership, confirmed by documents.

In addition, it would not be amiss to take a certificate from the BTI about the composition of the registered and absence of debts. Attach technical and cadastral documents to official documents of ownership. Of course, each paper requires its own copy.

How to apply correctly?

Such a document plays a big role in how comfortable the owner will live, so you need to know how to correctly formalize relations with the board of the partnership.

1. Where to begin? You need to decide whether someone already manages your home. If not, then you need to initiate a meeting where it will be decided either to create your own HOA, or to entrust the management of an existing organization from a neighboring house. If the majority of the residents of the house have already signed agreements with a certain HOA, then the rest will go there too.
2. Where to apply? The owner can draw up, that is, prepare the document himself. However, it is better to come to the HOA office, where they will provide you with a form to fill out.
3. What documents do I need to provide? In order to confirm your identity, as well as ownership of the premises in this house, you must take with you the necessary documents:
   • passport;

   certificate of ownership of the apartment;

4. technical passport for the apartment;
5. cadastral documents;
6. a certificate from the BTI, which will indicate the number of citizens registered in the apartment, as well as the absence of debt to the owner.

These are documents that the citizen owns, and copies of them will also be required for transfer to the HOA.

In turn, the HOA also presents its documentation for review:

• Articles of association.
• Registration documents from the tax office.

Processing times and costs

An agreement is drawn up with the HOA for service immediately on site, provided that the parties have no doubts or questions regarding this matter. Sometimes the preparation may be postponed to another day due to the fact that one of the parties did not provide the required documents.

In order for the document to be executed with the owner, you do not need to contribute any money .

Drawing up an agreement is absolutely free, and the financial issue will only manifest itself when the partnership begins its duties and you will need to pay for utilities.

For what period is it concluded? The document can be concluded either for a clearly defined period established by the parties, or for an indefinite period .

The purpose of such documents

An agreement on maintenance and provision of services is a transaction that is concluded by the owner of the apartment for the opportunity to receive these services through intermediaries - members of the board living in the same building with the owner, and not with third-party repair and resource supply companies.

The housing association enters into service agreements with private owners for the following purposes:

• systematization of the provision of services to residents within the framework of the partnership’s responsibilities;
• obtaining additional funds through the provision of services;
• increase in the number of resource consumers.

A partnership that provides resources to a large number of end consumers can negotiate with contracting and resource supply companies on more favorable terms , and the board distributes payments from residents under contracts as income from its business activities (Clause 2 of Article 152 of the Housing Code of the Russian Federation).

Failure Cases

When can they refuse?

Registration refusals are not uncommon.

As a rule, they occur for the following reasons :

1. You did not deliver any documents. Very often, this fact becomes the reason for leaving the contract without attention.
2. It is also possible that you incorrectly completed the application to create a legal entity.
3. They may refuse registration if they believe that your charter does not meet the requirements.
4. If it turns out that the decision to cooperate with the HOA was not made by a majority vote of residents, then a refusal will also follow.
5. In addition, failure to pay the registration fee for a legal entity is also a serious reason for refusal.

Services for owners of non-residential premises

Other owners are not included in the number of residents of a multi-storey building for the following reasons:

• The purpose of the premises was changed from residential to non-residential.
• They own retail or other areas of the first floors of the building, utility rooms, etc.

But they are also considered consumers of, at a minimum, heat and electricity and are responsible for the maintenance of the building and the surrounding area. They also need to contribute funds for the maintenance of the building and surrounding area, and at the same time pay utility costs. But forcing them to enter into a contract for the supply of services and dictate their terms is unacceptable.

If these owners are satisfied with cooperation with the Partnership, they have the right to use its services. If not, you can search for service companies yourself.

In this case, they need to coordinate their actions with the board, informing it regarding the application of types of building design, operation of communications, design of the local area, etc.

If the actions of entrepreneurs are in dissonance with the housing policy of the board, the conflict is resolved in government structures or in court.