The optimal way to sign a management agreement for an apartment building

The concept of “apartment building management agreement”

The MKD management agreement is an innovation among other civil law contracts. Therefore, this concept remains unfamiliar to many. However, its necessity for managing an apartment building is becoming more and more important every year. This document is concluded between the management organization and the owners of residential premises.

The management organization must be selected at a general meeting of all residents of the building. When concluding an agreement, she undertakes to comply with all the conditions specified in it. If the company does not comply with these requirements or there are other disagreements with the residents, sanctions may be applied to it or the contract may be terminated.

Management agreement with the developer

A management agreement with an organization can be concluded not only by the owners, but also by the developer who commissioned a new apartment building.

Until the local government holds a competition to select an organization managing the house or the owners themselves choose a management method at a general meeting, the developer must enter into a management agreement with the management company of his choice. This must be done within five days from the date of receipt of permission to put the house into operation (Part 14, Article 161 of the Housing Code of the Russian Federation).

In this case, the developer acts as a customer and agrees on the list of works and services and the amount of payment for them. The management company issues invoices for its services in the name of the developer, since he is the owner of the premises until they are transferred under the relevant act to the ownership of shareholders (clause 6, part 2, article 153 of the Housing Code of the Russian Federation, part 2, article 8 of the Federal Law of December 30, 2004 No. 214).

The agreement between the developer and the management organization is concluded for a period of no more than three months (clause 3, part 5, article 162 of the Housing Code of the Russian Federation). During this period, the municipality notifies of an open competition to select a management entity to manage the apartment building. The competition must end 40 days after the notification, and then the local government body notifies the owners of its results (parts 4-5 of Article 161 of the Housing Code of the Russian Federation).

At this time, the owners of premises in the new building and shareholders who accepted premises from the developer under a transfer deed can hold a general meeting of owners and choose a different method of management or another management organization in accordance with Art. Art. 44 – 46 Housing Code of the Russian Federation.

Subject of the management agreement and parties to the agreement

By law, an apartment management agreement can only be concluded with one single management organization. This is a company that provides utilities to residents and fulfills various requirements of owners for repairs and maintenance of the premises. Based on this, the subject of this agreement can be called:

provision of services by the management company;
provision of various home repair and maintenance works;
other activities aimed at maintaining the building.

Naturally, one of the parties to this agreement is the company that provides residents with various services for operating the house. But on the other hand, it is concluded either by a general meeting of residents or by the HOA. In the first case, the conclusion of an agreement for the management of an apartment building is usually carried out on a general basis, and in the second, the agreement is signed by the chairman of the board.

Options for signing an agreement and (or) changes to the management agreement for apartment buildings

The agreement is concluded in two copies, one of the parties to which is the owners of the apartment buildings, having more than 50% of the votes. The signatures of the owners of the apartment building premises are indicated in the text of the agreement or in its appendix.
The agreement is concluded with the owners by signing it in a certain number of copies corresponding to the number of owners who signed the agreement. In this case, the agreement is considered concluded if it was signed by the owners of the premises in this building, having more than 50% of the votes of their total number. A separate apartment management agreement is signed with each owner.
The agreement is signed by the owner of the apartment building premises, whose powers are confirmed by the decision of the general meeting of owners of the apartment building premises.

In practice, it can be difficult to collect more than 50% of the signatures of the owners of apartment buildings, especially if the house is large. In this case, you can use clause 3, part 8, art. 161.1 Housing Code of the Russian Federation. This norm gives the right to the chairman of the council of apartment buildings, on the basis of a power of attorney issued by the owners, to conclude a management agreement for apartment buildings.

Next, we will consider the legality of signing a management agreement for an apartment building:

the owner of the MKD premises, whose powers are confirmed by the decision of the general meeting of owners of the MKD premises, who is not the chairman of the MKD council;
Chairman of the MKD Council, whose powers are confirmed by the decision of the general meeting of owners of MKD premises.

List of services and works agreed upon in the contract. Public utilities

All terms of the agreement must be agreed upon between the owner and the management company. This also applies to the provision of necessary services. This list is compiled and attached to the contract after both parties have read it. This document should be understandable to both the company and the owners.

The list also needs to indicate the scope of services required for the home and their cost.

As for utilities, their provision is carried out by the relevant enterprises. And this must also be reflected in the agreement concluded between the management organization and the residents. If the company commits any violations, administrative sanctions may be applied to it. The contract must also contain the cost of all utilities without exception.

Contents and essential terms of the agreement

According to the Housing Code of the Russian Federation, a management agreement is concluded only on the basis of a general meeting of residents. Moreover, at least half of the total number of owners must vote “for”.

To manage an apartment building, a company must have a license. Without going through this procedure, the organization does not have the right to receive income from the management of apartment buildings, which means that an agreement cannot be concluded with it.

The contract is drawn up only in writing, an oral agreement will not be valid. The text of the document must necessarily reflect the following:

item. In this case, the subject is the provision of services for the maintenance of an apartment building and management of common property;
composition of the common property of residents. This point should be reflected in as much detail as possible. The composition must include all property that is transferred to management. Otherwise, it will be problematic to effectively protect your rights and hold the management company accountable;
service list. This point also needs to be as specific as possible. It reflects the services that the company will provide to residents;
cost of services. This indicates the amount of fees for services provided by the management company;
procedure for reporting on services provided and work performed. Based on this clause, residents will be able to control the actions of the management company;
contract time. This is the period for which the agreement is concluded;
liability of the parties;
procedure for terminating the agreement.

The contract reflects points that are important for both parties. The provisions of the document must be agreed upon at a general meeting. If the management company assures that a standard contract is used and no new conditions can be introduced, this is unlawful. Residents have the right to make adjustments, since civil law implies the voluntariness of such relationships. Apartment owners at the meeting may even refuse to enter into an agreement with a certain organization and choose another, so they are in a more advantageous position and can dictate terms that do not go beyond the law.

Rights of the management company. Monitoring the fulfillment of its obligations and reporting on the implementation of the contract

There is a special procedure for the management organization to carry out its activities. It is important for residents to receive the full range of services on time. And in this case, the company has many responsibilities. However, the organization necessary to manage a residential building also has its rights to:

collection of debts from residents;
management of the reserve fund;
inspecting the use of premises by residents;
requirement from owners to eliminate violations and compensate for losses.

Monitoring the activities of the management organization is an important part of the entire process of managing a house. The procedure for exercising this control is contained in housing legislation. On the part of the state, this is dealt with by a special housing inspection. But such control can be initiated by any owner.

One way to check the activities of an organization is through its reporting.

The deadline for submitting this document is specified in the Housing Code of the Russian Federation. Typically this is the first quarter of the year, during which the management company prepares its report for the past year. The contents of the document, as well as the procedure for its provision to owners, are regulated by the company itself.

Rights and obligations of the management company

Since the management company provides services to citizens, the relationship between it and residents belongs to the civil law sphere. When concluding a contract, certain obligations are established for the parties that they must fulfill, as well as a range of rights. In particular, the responsibilities of the management company under the agreement concluded with residents include the following actions:

ensuring the safety of residents. In particular, this may be monitoring the condition of the house and the equipment in it, timely troubleshooting, immediate response to messages from residents about a possible threat, for example, the smell of gas;
monitor the condition of engineering equipment and utility supply networks;
exercise control over the quality and uninterrupted supply of utilities;
maintain common property in good condition;
comply with legal requirements for carrying out repair work at a certain frequency;
prepare networks for a specific season;
ensure the safety and use of technical documentation within the limits established by law;
provide residents with information about tariff rates and their changes on time and in full;
provide information and ensure free access to it, in accordance with the requirements of the law, in particular Government Decree No. 491;
other obligations established by the contract.

It is worth considering that, in addition to responsibilities, the management company also has rights. Their general list is as follows:

receive technical documentation from residents or responsible persons. This is necessary for effective maintenance of an apartment building;
establish the procedure for providing services independently;
independently choose the method of organizing work;
select contractors to perform certain works;
receive funds for their services, as well as monitor debts and charge penalties for late payments.

Residents, as recipients of services, have a less extensive list of responsibilities. In particular, these include the following:

use the premises in accordance with their intended purpose;
pay for the services of the management organization, as well as utilities provided by suppliers, on time and in full;
inform the management organization about general meetings of residents and decisions made.

The general range of rights of residents of an apartment building includes the following:

exercise control over the activities of the management organization for servicing an apartment building;
receive reports on activities carried out and services provided;
receive information about the activities of the management organization within the framework of Government Decree No. 491;
receive the services established by the contract in full and of proper quality.

In addition, residents have the right to contact the authorities that monitor the activities of management organizations if their rights and the terms of the contract have been violated.

Both parties have the right to terminate the contract on their own initiative. The owners have the right to make an appropriate decision at a general meeting if they choose a different method of management or organization. In this case, they must notify the Criminal Code at least two months in advance.

If the management company decides to terminate the contract, it is obliged to notify the residents of this in accordance with the established procedure no less than a month before the expected date of termination of the legal relationship.

In addition, the contract is terminated by agreement of the parties or upon expiration of its validity period. In the second case, the residents or the management company itself must notify the other party of the termination of the agreement due to the expiration of the agreement at least two months in advance. If this is not done, the contract is automatically extended for the same period and with the same conditions.

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Extension, modification, termination or termination of the contract

The form of the apartment building management agreement concluded between the owners of the premises and the organization must be exclusively written. This is a standard document established by law. The procedure according to which changes can be made to this document is contained in the Civil Code of the Russian Federation.

It is possible to make changes to the contract or terminate it unilaterally, unless otherwise specified in it. This can be done by both the owners of residential premises and the company itself. And since the contract is public, the company cannot refuse to provide services.

Termination of a management agreement for an apartment building can also occur in court, but for this the parties must have good reasons. A contract can only be terminated if its validity period has expired or due to the termination of obligations.

Author of the article

Contracts under the direct management of apartment buildings

When directly managing an apartment building, responsibility for the condition of the common property of the house, its maintenance and repair, as well as for the provision of utilities lies with the persons performing the relevant work and providing services in accordance with agreements concluded with the owners and the following regulatory legal acts of the Russian Federation:

Housing Code of the Russian Federation;
Decree of the Government of the Russian Federation dated August 13, 2006 No. 491;
Decree of the Government of the Russian Federation dated May 6, 2011 No. 354.

When concluding contracts with organizations that provide services for the maintenance and repair of common property of apartment buildings, they are signed by all or the majority of owners of premises in the house on the basis of the decision of the OSS (Part 1 of Article 164 of the Housing Code of the Russian Federation).

Also, a party to an agreement with third parties may be one of the owners, to whom the other owners of the premises in the house have given powers of attorney to act on their behalf (Part 3 of Article 164 of the Housing Code of the Russian Federation).

Transfer of a house from the developer to a management company

The Housing Code does not allow leaving a house without maintenance and thereby jeopardizing the safety of living in it. Therefore, from the first days of commissioning, the house is under the control of a temporary operating organization hired by the developer or managed by the construction organization itself. The permanent operating organization can be selected in any of two ways:

The shareholder signs the voting ballot and the management agreement with the management company at the time of acceptance of the apartment
The management company is selected based on an open competition

In the first case, the developer usually holds an absentee vote through a general meeting of owners to conclude a management agreement for the apartment building with a controlled organization. Large construction companies have a controlled operating company in their structure. This is done in order to prevent competitors from entering their territory. To vote in favor of a controlled organization, ballots are used, which are signed by citizens in parallel with the execution of the act of acceptance and transfer of apartments. In addition to the newsletter, a contract for the operation of the building is also endorsed. If the construction organization has unsold apartments with registered ownership, the developer also votes at the general meeting of owners in favor of the operating organization. This is beneficial for residents because the level of service provided by the management company under its control is much higher than that brought in from outside, and issues related to the developer are also resolved much faster.

This method of determining the MA has a limitation - it is necessary to organize a vote and meet the deadline no more than 60 days from the moment the apartment building is put into operation, otherwise a municipal competition will be held.

The second method, as has already become clear, is to determine the operating organization through an open tender. It is carried out by a local government body (mayor’s office or district administration)

Procedure for action of self-government bodies:

Within 20 days from the date of commencement of operation of the MKD, an open competition is announced to select the management company
40 calendar days are allotted for the implementation of the competition
Within 10 days from the date of completion of the competition, shareholders are informed about the results of the selection of a management company for the new building.

According to clause 2 of PP No. 75, the winner of the open competition is the organization that offered to carry out the proposed amount of work at the lowest cost.