Article 162. 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.

Forms of management of an apartment building

According to Part 2 of Art. 161 Housing Code of the Russian Federation, MKD can be controlled by:

directly by the owners themselves, if the building has no more than 30 apartments;
Homeowners' association, residential complex, housing cooperative or other consumer cooperative;
management organization based on a license.

The choice of form of management is the responsibility of the owners of premises in the house (clause 4, part 2, article 44 of the Housing Code of the Russian Federation). For this purpose, in accordance with Art. Art. 44 – 46 of the RF LC, a general meeting of owners is held, at which a majority of the total number of votes of the owners participating in this meeting must vote for the chosen method (Part 1, Article 46 of the RF LC).

Regardless of the chosen form, the management of the house must ensure proper maintenance of the common property of the owners and safe living conditions, as well as resolving issues regarding the use of common property (Part 1 of Article 161 of the Housing Code of the Russian Federation).

Owners can change the way the house is managed at any time, and the decision of the OSS on this issue is mandatory for all owners in the apartment building (Part 3 of Article 161 of the Housing Code of the Russian Federation).

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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.

Management agreement for an apartment building with the owners

If at the general meeting the owners chose a specialized organization to manage the house, then they enter into a management agreement for the apartment building with the management company.

A management agreement is an agreement concluded between the owners of premises in an apartment building and the management organization. The management authority, on the instructions of the owners, HOA or residential complex, during the term of the contract, is obliged to provide services for a fee and carry out work on the proper maintenance and repair of the common property of the house.

Also, according to the management agreement, the management authority must ensure the readiness of in-house engineering systems to provide utilities and provide utilities if this is stipulated in the management agreement (part 2 of article 162 of the Housing Code of the Russian Federation).

The parties to the agreement with the management organization are the owners who have more than 50% of the votes of the total number of votes of the owners of premises in a given building (Part 1 of Article 162 of the Housing Code of the Russian Federation).

The agreement can be signed by both the owners themselves and the chairman of the MKD board, if he has powers of attorney to do so. The agreement is concluded in writing or in electronic form using the GIS Housing and Communal Services (Part 1 of Article 162 of the Housing Code of the Russian Federation).

Jurisdiction and place of execution of the MKD management agreement
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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.

Unilateral termination of the management agreement by the management company

According to Part 2 of Art. 310 of the Civil Code of the Russian Federation, a management organization carrying out business activities to manage apartment buildings does not have the right to unilaterally terminate the management agreement concluded with the owners.

The management company cannot refuse to provide services under the contract if it is possible to perform them (decision of the Constitutional Court of the Russian Federation dated 06.06.2002 No. 115-O). But it is still possible to terminate the management agreement with the owners, although it is very difficult: the management company can file a claim in court for early termination of the management agreement and prove that

the circumstances from which the owners of the premises in the house and the management organization proceeded when concluding the contract have changed significantly (Article 451 of the Civil Code of the Russian Federation);
Residents of an apartment building significantly violate the terms of the management agreement, causing damage to the management company and depriving it of profit.

The management company may also terminate the management agreement unilaterally upon expiration of its validity period. This method of severing contractual relations with MKD is confirmed by the decision of the Federal Arbitration Court of the Moscow District dated 03/07/2013 in case No. A41-9806/12.

If you conclude a management agreement with the owners for a period of one year with the condition of extension, the management company, if necessary, can terminate the agreement unilaterally. The main thing is to specify in detail in the contract the procedure for canceling the contract: approve the template for notifying the owners, the methods and timing of its delivery and other important points.

How can a management organization terminate a house management contract?

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.

Termination of the management agreement for an apartment building

The management agreement can be terminated early by mutual agreement of the parties in accordance with the requirements of Art. 450 of the Civil Code of the Russian Federation (Part 8 of Article 162 of the Housing Code of the Russian Federation). This can be done by initiating a general meeting of owners of premises in the apartment building on the issue of termination of the management (part 3 of article 161 of the Housing Code of the Russian Federation).

The contract is unilaterally terminated by a court decision if one of the parties has committed a gross violation of the essential terms of such an agreement (Part 1 of Article 450 of the Civil Code of the Russian Federation).

The law recognizes as significant a violation of the contract by one of the parties, due to which the other party, due to the damage caused, lost what it had the right to count on when concluding the contract (Part 2 of Article 450 of the Civil Code of the Russian Federation).

If the management entity does not comply with the terms of the concluded agreement for the management of an apartment building, then the owners have the right at a general meeting to decide to terminate the agreement unilaterally. The decision is approved by a majority of the total number of votes taking part in the meeting (Part 1 of Article 46 of the RF Housing Code). In this case, a new management system or a new method of managing the house is selected at the OSS (Part 8.2 of Article 162 of the Housing Code of the Russian Federation).

Claim procedure for resolving disputes in a management agreement
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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

Duration of the management agreement for an apartment building

After concluding a management agreement, the management company is obliged to begin work within 30 days (Part 7 of Article 162 of the Housing Code of the Russian Federation). The duration of the contract depends on the method of choosing the MA:

The management organization was chosen by the owners at a general meeting - the management agreement is concluded for a period of 1 to 5 years (clause 1, part 5, article 162 of the Housing Code of the Russian Federation).
The management authority received the house based on the results of a municipal open competition - the contract period is from 1 to 3 years (clause 2, part 5, article 162 of the Housing Code of the Russian Federation).
The contract with the developer, as we have already written, is valid for no more than three months.

An MKD management agreement concluded for any of the specified periods is automatically extended for the same period with the same conditions, unless either party has declared in writing its termination (Part 6 of Article 162 of the Housing Code of the Russian Federation).

Standard management agreement. Legal norms
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Contract time

Under standard conditions, the management agreement for an apartment building is concluded for a period of up to 5 years (Article 162 of the Housing Code of the Russian Federation.) Depending on the situation, the period of cooperation between the residents and the selected management company may be:

from 1 to 5 years, if the management company was elected by a majority vote of the general meeting of owners or by decision of the authorized board of the HOA;
from 1 to 3 years, if the management company was selected based on the results of an open competition in the case where the apartment owners were unable to make a decision or did not implement it before the end of the validity period of the previous contract;
from 30 to 90 days, if the agreement was concluded with the developer.

According to the norms of the Housing Code of the Russian Federation, if neither party objects, the contract is automatically extended for the same period as was originally concluded.

Grounds for invalidating a contract

In accordance with the requirements of civil law, only transactions whose legality is recognized by the court are invalid (Article 166 of the Civil Code of the Russian Federation). This means that the parties are obliged to return the benefits received to each other or reimburse their value in monetary terms.

Based on the same rules, a management agreement for an apartment building can be declared invalid on the following grounds:

the provisions of the agreement contradict accepted laws and the fundamentals of law and order;
the agreement has signs of imaginary or feigned transactions;
the contract was concluded on behalf of an incapacitated or minor person;
the consent of local authorities has not been obtained or there is no license;
there was an intentional misconception, for example, if one of the parties is prohibited from conducting this type of activity.

Briefly about the main thing

An apartment building management agreement is a document regulating the relationship between the organization managing the building and the customer of its services. The customer can be:

owners of premises in apartment buildings;
HOA, TSN, residential complex, housing cooperative or other consumer cooperative;
developer after receiving permission to put a new house into operation.

The term of the management agreement depends on how the organization received the apartment building for management:

by decision of the owners of premises in an apartment building,
at the developer's choice
based on the results of an open competition organized by a local government body.

The management agreement can be terminated by agreement of its parties or unilaterally by proving a violation of its essential terms by one of the parties. In this case, the MA will have to prove violations in court. But it is better to reach agreement on this issue with the owners of premises in the apartment building by raising the issue of terminating the management agreement at a general meeting of owners. The “OSS 100%” service will help you hold such a meeting in a legally correct manner.

[Housing Code] [Title VIII]
. An apartment building management agreement is concluded with a management organization that has been granted a license to carry out activities for managing apartment buildings in accordance with the requirements of this Code, in writing or electronically using the system by drawing up one document signed by the parties. When choosing a management organization by a general meeting of owners of premises in an apartment building, a management agreement is concluded with each owner of premises in such a building on the terms specified in the decision of this general meeting. In this case, the owners of premises in this building, having more than fifty percent of the votes of the total number of votes of the owners of premises in this building, act as one party to the concluded agreement. Each owner of premises in an apartment building independently fulfills the obligations under the management agreement for the apartment building, including the obligation to pay for residential premises and utilities, and is not responsible for the obligations of other owners of premises in this building.

1.1. In the case provided for in Part 13 of Article 161 of this Code, with each person who has accepted from the developer (the person providing the construction of an apartment building) after issuing permission to put an apartment building into operation, premises in this building under a transfer deed or other transfer document shall be concluded management agreement for an apartment building. Moreover, such persons act as one party to the concluded agreement if they constitute more than fifty percent of their total number.

. Under an agreement for the management of an apartment building, one party (the management organization) on the instructions of the other party (the owners of the premises in the apartment building, the management bodies of the homeowners' association, the management bodies of a housing cooperative or the management bodies of another specialized consumer cooperative, the person specified in paragraph 6 of part 2 of Article 153 of this Code, or in the case provided for in Part 14 of Article 161 of this Code, the developer) within an agreed period for a fee undertakes to perform work and (or) provide services for the management of an apartment building, provide services and perform work on the proper maintenance and repair of common property in such a house, provide utility services to the owners of premises in such a house and persons using the premises in this house, or in cases provided for in Article 157.2 of this Code, ensure the readiness of engineering systems, and carry out other activities aimed at achieving the goals of managing an apartment building.

2.1. The management agreement for an apartment building, concluded in the manner established by this article, must be placed by the management organization in the system in the manner established by the federal executive body exercising the functions of developing and implementing state policy and legal regulation in the field of information technology, together with the federal an executive body that carries out the functions of developing and implementing state policy and legal regulation in the field of housing and communal services.

. The management agreement for an apartment building must indicate:

1) the composition of the common property of the apartment building in respect of which management will be carried out, and the address of such a building;
2) a list of works and (or) services for the management of an apartment building, services and works for the maintenance and repair of common property in an apartment building, the procedure for changing such a list, as well as a list of utilities provided by the management organization, with the exception of utility services provided in in accordance with Article 157.2 of this Code;
3) the procedure for determining the price of the contract, the amount of payment for the maintenance and repair of residential premises and the amount of payment for utility services, as well as the procedure for making such payment, with the exception of payment for utility services provided in accordance with Article 157.2 of this Code;
4) the procedure for monitoring the management organization’s fulfillment of its obligations under the management agreement.

. The terms of the management agreement for an apartment building are established the same for all owners of premises in the apartment building.

. The management agreement for an apartment building is concluded:

1) in the case specified in part 1 of this article, for a period of not less than one year, but not more than five years;
2) in the cases specified in parts 4 and 13 of Article 161 of this Code, for a period of no less than one year, but not more than three years;
3) in the case specified in Part 14 of Article 161 of this Code, for a period of no more than three months.

. In the absence of an application from one of the parties to terminate the management agreement for an apartment building at the end of its validity period, such an agreement is considered extended for the same period and on the same conditions as provided for in such an agreement.

. The management organization is obliged to begin executing the management agreement for an apartment building from the date of making changes to the register of licenses of a constituent entity of the Russian Federation in connection with the conclusion of a management agreement for such a building.

. Changes and (or) termination of the management agreement for an apartment building are carried out in the manner prescribed by civil law.

8.1. Owners of premises in an apartment building unilaterally have the right to refuse to execute an agreement for the management of an apartment building, concluded as a result of an open competition provided for in parts 4 and 13 of Article 161 of this Code, after each subsequent year from the date of conclusion of the said agreement if, before the expiration of the term validity of such an agreement, the general meeting of owners of premises in an apartment building made a decision to choose or change the method of managing this building.

8.2. Owners of premises in an apartment building, on the basis of a decision of the general meeting of owners of premises in an apartment building, unilaterally have the right to refuse to fulfill the management agreement for an apartment building if the management organization does not comply with the terms of such agreement, and decide to select another management organization or change the method of managing this home.

. Management of an apartment building, which is owned by a housing cooperative or in which a homeowners' association has been created, is carried out taking into account the provisions of sections V and VI of this Code.

. The management organization, within three working days from the date of termination of the management agreement for an apartment building, is obliged to transfer technical documentation for the apartment building and other documents related to the management of such a building, keys to the premises that are part of the common property of the owners of premises in the apartment building, electronic access codes for equipment , which is part of the common property of the owners of premises in an apartment building, and other technical means and equipment necessary for the operation and management of an apartment building, a newly selected management organization, a homeowners' association or a housing or housing-construction cooperative or other specialized consumer cooperative, and in the case of direct management of such a house by the owners of the premises in such a house, to one of these owners indicated in the decision of the general meeting of these owners on the choice of the method of managing such a house, or, if this owner is not specified, to any owner of the premises in such a house.

. Unless otherwise established by the management agreement for an apartment building, the management organization annually, during the first quarter of the current year, submits to the owners of premises in the apartment building a report on the implementation of the management agreement for the previous year, and also places the specified report in the system.

. If, based on the results of the execution of the management agreement for an apartment building in accordance with the report on the implementation of the management agreement posted in the system, the actual expenses of the management organization turned out to be less than those that were taken into account when establishing the amount of payment for the maintenance of residential premises, subject to the provision of services and (or) performance of management work apartment building, provision of services and (or) performance of work on the maintenance and repair of common property in an apartment building, provided for by such an agreement, the specified difference remains at the disposal of the management organization, provided that the savings received by the management organization did not lead to inadequate quality of services provided and (or ) work performed on the management of an apartment building, services provided and (or) work performed on the maintenance and repair of common property in an apartment building, provided for by such an agreement, confirmed in the manner established by the Government of the Russian Federation. In this case, the management agreement for an apartment building may provide for a different distribution of the savings received by the management organization.