Help 2-NDFL / 03.02.2021

On the election of the chairman of the general meeting of owners. How should the votes be counted at the general meeting of owners of an apartment building? Can a representative of the owner be the chairman of the meeting

The charter? The preparatory stage of the meeting includes several stages:

first you need to formulate an agenda: determine what topics will be discussed, what needs to be resolved, etc.,
The “second step” is to immediately determine whether the event will be held in full-time or in absentia;
appoint a date, exact time, as well as - if the full-time form is chosen - the venue;
if officials are elected at the meeting, select candidates;
prepare all the necessary documents: protocol forms, lists of residents, voting ballots and, if necessary, any additional papers (for more details here);
establish the share of each owner in the house.

After the preparatory activities are completed, it is necessary to inform the owners about the upcoming meeting.

Election of the chairman and secretary of the meeting of owners of an apartment building

However, it seems that this is not enough (residents can simply ignore such meetings or still not implement the decisions made). In this case, there is no alternative to an open tender for the selection of a managing organization.

Important

The main thing is to raise the legal awareness of citizens, and in this matter, coercive measures do not work. Therefore, Art. 161.1 of the RF LC may remain declarative.

The benefit from the introduction of the institution of council can only be in those houses where residents are initially involved in management and are interested in working together, but the creation of a homeowners association is not profitable. Unfortunately, there are very few such cases.

The leader of the general meeting of members of the condominium is not the owner.

Attention

The Housing Code bulletin indicates that the HOA voting ballot must contain the following information:

a list of questions to be voted on;
the date of the final vote count;
the address to which the completed ballot should be sent;
fields for entering data about the owner (name and data of the certificate of ownership).

The bulletin provides three options for each question: “for”, “against” and “abstained”. When holding a meeting in absentia, the bulletin (sample) must be sent to the owners together with the announcement of the meeting.

Info

In full-time form, this document is distributed to all participants at the stage of their registration at the very beginning of the event. The procedure for re-election of the Chairman of the HOA Chairman is elected by the board meeting, electing it from among its members.

That is, only a member of the HOA board can become the chairman.

In-person and absentee meetings of condominiums: how to conduct voting and how to keep minutes?

The participants of the meeting can elect not the chairman himself, but new members of the board. The latter, according to the traditional scheme, will elect a chairman from their circle.

Finally, one may not gather and vote at all, but leave the matter of re-election to the board (if there is no need to change the composition of this body). Power of Attorney If a homeowner cannot attend a meeting in person, the law allows him to issue a power of attorney to another person to attend.

The power of attorney should indicate all passport data and the address of both the owner and his representative. A power of attorney issued by an individual is certified only by his signature.
But if the principal is a legal entity, in addition to the signature of the head, you will need the seal of the HOA. Directly at the meeting, the presented power of attorney is signed by the chairman of the HOA.

General meeting of owners of an apartment building

Homeowners' association or the homeowners association's audit commission is carried out in two ways:

Full-time. All hosts, by prior agreement, meet at the appointed time in a certain place. They personally discuss all the problems on the agenda, and personally vote on the items that need to be resolved.
By correspondence. The owners of the premises, the owners of the apartments are not present in person, instead, they fill out a voting ballot (which contains complete information on all problematic and important points) and send it to the board of the HOA.

The responsibility of the HOA members is to hold general meetings at least once a year.

The timing and frequency of their implementation are fixed in the Charter of the HOA. But on any day, if the need arises, an extraordinary meeting can be called.

Board members ensure that the minimum frequency is observed.

How to hold a meeting in a condominium: notification of the meeting and drawing up minutes

This article will be useful to you if you are wondering how to choose the right chairman of the general meeting of owners, a secretary and a counting commission. You will find out if there are any requirements for the listed candidates and whether it is necessary to include the issue of their election in the agenda of each meeting.

Why the decision of the OSS may be considered null and void 1291 0 The issue of choosing the chairman of the general meeting on the agenda We have always recommended, regardless of what issue the OSS is going to consider, include three issues on the choice in the agenda:

chairman of the OSS,
Secretary of the OSS,
the counting commission of the OSS.

Community "brownie (housing rights and not only)"

The duties of the secretary include:

filling out the protocol according to the rules approved by order of the Ministry of Construction No. 937;
control over the accuracy of the entered data on the number of votes provided by the counting commission;
making additions and dissenting opinions at the end of the discussed issues as directed by the chairman.

IMPORTANT! The secretary who drew up the protocol signs it and is responsible for the consequences resulting from the distortion of information in any sections of the protocol due to negligence or intent equally. When holding an absentee meeting, with voting by apartment, the drawing up of the document is carried out by the members of the housing association who organized the absentee voting.
How to compose correctly? Compilation should begin with a title page. At the top, you need to indicate the name of the housing association, as well as the full name of the secretary and chairman who is leading the meeting.

Who can be the secretary of the general meeting of the condominium

Housing cooperative of the Russian Federation, owners of premises in an apartment building with more than four apartments (if an HOA is not created in such a house or this house is not managed by a housing cooperative (another specialized consumer cooperative)), are obliged at a general meeting to elect the council of an apartment building from among the owners of the premises (in other words , as a method of management, a managing organization or direct management was chosen). The chairman is elected from among the members of the council. Clause 2 of Art. 161.1 of the Housing Code of the Russian Federation provides for a compulsory procedure for the implementation of the above norm: if within a calendar year * (8) the decision on the election of the council is not made or is not implemented, the local government within three months convenes a general meeting, the agenda of which includes issues on the election of the council at home or the creation of a homeowners association.

Who can be the secretary of the congregation

It's fast and free! Table of contents:

What is the minutes of the HOA meeting?
What does the law say about this?
What is the content of the document?
Who Should Complete?
How to compose correctly?
The difference in content for the two types of voting
If the paper is compiled for the absentee form
What is an extract for?

What is the minutes of the HOA meeting? Minutes of HOAs at meetings of tenant-owners is a document that lists all the issues discussed at the meeting, indicating the number of those present who voted "for", "against" or abstained from voting. Among these questions there may be a proposal for the need to liquidate the partnership.

The date of filling in should indicate the date of the final counting of votes by the counting commission (paragraph 6 times. 2 of Order No. 937). In most cases, the counting of votes takes place on the day of the meeting, if the counting of votes is postponed to another day, then the attachment must indicate the place of storage of voting ballots and the full name of the responsible person-member of the partnership. According to clause 16 of the order of the Ministry of Construction No. 937, when drawing up agenda items, it is not allowed:

combining issues of different content into one;
vague and ambiguous formulations;
inconsistency of wording with legal requirements (if any).

At the end, it is imperative to indicate the storage location of the document, prescribed in the charter of the housing association, as well as the signature of the chairman and the secretary who filled out the document.
An extract is drawn up in two cases:

with a large volume of the main protocol;
if there is information in the text that is not subject to presentation to the person who requested the extract;

The text of the extract must contain the following information:

information about the originator of the document;
date of the meeting;
the sum of the shares of all members of the housing association;
the sum of the shares of those who voted;
Name of all members of the counting commission.

The photo below shows a sample of an extract from the general meeting of the HOA: The extract must be certified by the chairman of the meeting or a member of the board. The certifier writes the word "true", indicates his position in the HOA, personal signature with a transcript and indicates the date of certification with a note about the storage location of the main document.

TEXT: Anastasia Binkina, expert of the magazine "Management of an apartment building"

Finding a person who can count - what could be easier? But in order to count the votes of the owners at the general meeting, knowledge and the desire to communicate are needed. A general meeting of owners of premises in an MKD is a specific event where completely different and often unpleasant people meet each other. There they argue, swear and sometimes use foul language. The meeting must be conducted in such a way as to get a decision based on its results, and not a fight.

The leader of the general meeting in housing legislation is called the chairman; the person who prepares the papers is the secretary of the general meeting. The votes of the meeting participants are counted by the members of the counting commission. In the future, the chairman, secretary of the general meeting and members of the counting commission will be called responsible persons.

In this article, you will learn:

how to approach the selection of candidates;
what powers the responsible persons have;
how often to elect them;
than the absence of an elected counting commission threatens.

How to approach the selection of candidates

Requirements for those who can be elected as responsible persons of the general meeting are not established by law. Practice tells them.

Any natural or legal person can be elected to the role of the person in charge of the general meeting, even if it is not the owner of the premises in this MKD. We recommend that MAs and housing associations nominate their employees for election as responsible persons at the general meeting. It is even better if these people are visually known to the owners of the premises in the apartment building and are respected.

Let's figure out the quantity. The chairman is one person, the secretary is also. It can be the same person, but only for a “small” general meeting. For example, in an apartment building, where there are no more than 30 apartments. In a home with more rooms, it will be difficult for the chairman of the meeting to keep minutes at the same time. The counting commission may consist of one or several people - the legislation does not regulate this either.

Remember that the success of the meeting and its legitimacy will depend on the competence of those in charge.

We do not recommend giving general meeting attendees a wide choice. Offer one, maximum two surnames for voting. A larger number of candidates will cause unnecessary confusion of the voters, who will require clarification: who is this, in which apartment he lives, why exactly he (she), etc.

What authority does anyone have

The duties of the chairman, secretary of the general meeting, members of the counting commission are not defined by law. They are formed by the great practice of general meetings throughout the country.

The chairman is elected so that he will lead the meeting of owners, and the secretary - to keep and draw up the minutes.

The members of the counting commission at the general meeting are elected in order for them to count the votes of the participants and summarize the results of voting on each item on the agenda. Members of the counting commission identify invalid decision forms and check the credentials of the owners' representatives.

At the end of the meeting, the chairman, secretary and members of the counting commission who count the votes shall sign the minutes of the owners' meeting. It is determined nn. 3-5 Art. 181.2 of the Civil Code of the Russian Federation and p. 21.

Question

Do I need to pay for the work of the chairman, secretary and members of the counting commission?

The remuneration of the responsible persons at the general meeting of the RF LC does not provide for. But such a decision can be made by the general meeting of owners of premises in the MKD. To do this, the owners must determine the amount of remuneration and the procedure for its payment. Include these items on the owner meeting agenda. Include the costs of salaries of responsible persons in the costs of financing the general meeting. This approach is consistent with the provisions p. 3.5 h. 2 tbsp. 44 LCD RF.

How do they elect

The chairman and secretary of the general meeting, as well as members of the counting commission, are elected directly at the general meeting of owners of premises in the MKD. Such conclusions are confirmed in the Methodological Recommendations on the procedure for organizing and holding general meetings of owners of premises in apartment buildings, approved. by order of the Ministry of Construction of Russia dated July 31, 2014 No. 411 / pr(hereinafter - Methodical recommendations).

Question

Who will sign the minutes of the general meeting if the owners have not elected a chairman, secretary or counting board?

The minutes of the general meeting must always be drawn up, and it must be drawn up according to the rules.

If the issue of the election of the chairman, secretary of the meeting, members of the counting commission is included in the agenda of the meeting, but the owners rejected the proposed candidates, the minutes are signed by the initiators of the meeting. It is fixed p. 21 Requirements for the registration of minutes of general meetings of owners of premises in apartment buildings, approved. by order of the Ministry of Construction of Russia dated December 25, 2015 No. 937 / pr.

How often to elect

The Ministry of Construction of Russia recommends that the agenda of each general meeting include issues on the election of the chairman, secretary and members of the counting commission ( p. 2 sect. VI Methodical Recommendations; see figure). But these issues will overload the agenda of subsequent meetings and increase the risk of owners rejecting the proposed candidates in the future.

To avoid this problem, you can define the term of office of the elected persons. To do this, supplement the agenda with relevant items. Since the term of office of the responsible persons is not limited by law, the meeting can set any convenient period - for example, a year.

If the chairman or secretary, who has been elected for a specific term, is unable to attend any meeting, simply put on the agenda the issue of electing others. But if someone from the counting commission cannot participate, then its composition will need to be approved again.

Consequences of the absence at the meeting of the chairman, secretary and members of the counting commission

Information about the chairman, secretary and persons who counted the votes at the meeting, as well as their signatures in the minutes, are mandatory details of the minutes of the general meeting of owners. If this information is not in the protocol, it means that it was drawn up with violations.

A significant violation of the rules for drawing up the minutes, including the rules on the written form of the minutes, may result in the invalidity of the decision of the meeting ( sub. 4 p. 1 art. 181.4 of the Civil Code of the Russian Federation).

The court, taking into account all the circumstances of the case, has the right to uphold the decision if ( h. 6 art. 46 LCD RF):

considers that the absence of the signatures of these persons in the protocol is not a material violation;
the decision did not entail any damage to the owners, who would appeal against it.

A general meeting of owners is a usual thing for managing organizations and owners of premises. Nevertheless, when holding meetings of the Criminal Code, mistakes are often made that can lead to litigation and invalidation of the decisions of such meetings.

Today we will tell you what you need to know to avoid these mistakes.

Violation of the procedure for notification of an upcoming meeting

The first step to holding a general meeting of owners is to notify the owners of the upcoming event. The initiator must notify all owners of the premises in the MKD about the holding of the meeting no later than 10 days before its start (part 4 of article 45 of the RF LC).

The main mistake of meeting initiators is the choice of notification method. The most popular way to inform owners about the upcoming meeting is to place a notice on information stands or on the doors of the apartment blocks.

information about the person participating in the voting;
details of the document confirming the ownership of the premises of the person participating in the voting;
decisions on each item on the agenda, expressed in the formulations “for”, “against”, “abstained”.

If the owner did not mark any position in any of the agenda items, or vice versa, put several checkmarks in it, such an issue in this decision should be recognized as invalid and not taken into account when summing up the results of the meeting (part 6 of article 48 of the RF LC ).

Incorrect vote count

If one person or legal entity owns several premises in an apartment building, he can vote only once. In this case, the bulletins indicate the total area of the premises that belong to such a person.

Incorrectly executed powers of attorney

When the owner does not have the opportunity to take part in the voting, his representative can vote for him by proxy. Before admitting a representative to participate in the OSS, make sure that the power of attorney is drawn up correctly and contains information about the owner and his representative:

surname, name, patronymic - for individuals, full name - for legal entities;
place of residence or location;
passport documents or details of constituent documents.

The power of attorney to vote must be drawn up in accordance with paragraphs 3 and 4 of Art. 185.1 of the Civil Code of the Russian Federation or certified by a notary. According to paragraphs 3 and 4 of Art. 185.1 of the Civil Code of the Russian Federation, the power of attorney does not need to be notarized if the document:

assured by the organization in which the principal works or studies;
issued by the administration of the inpatient medical institution in which the principal is undergoing treatment.

Error in choosing the meeting form

The forms of holding general meetings of owners are listed in Art. 44.1 LCD RF. There are three of them: full-time, part-time and part-time.

It happens that the initiator in the notification indicates that the meeting will be in-person. Few owners come to the meeting, the quorum is not recruited. Then the initiator decides to conduct the correspondence part. At the same time, he does not notify the owners about the absentee part and draws up one protocol for both parts. This is the wrong approach. If the declared face-to-face meeting did not take place, a separate absentee meeting can be held. In this case, the owners must be notified about it and a separate protocol must be drawn up (part 1 of article 47 of the RF LC).

The advantage of the part-time form is that part of the owners will be able to discuss the problem with the initiator in person, and at the part-time part you will gain the missing votes. With this form of meeting of owners, you do not have to notify each part separately and you have to draw up only one protocol.

Outdated information about the ownership of the premises

Make sure that the current information is reflected in the register of premises owners. The owners do not always provide the management organization with up-to-date data on the change of owners of real estate objects, on the change in the area of premises.

For the data to be correct, contact Rosreestr for extracts, which stores up-to-date information about the owners of premises in the MKD. Then you won't have any problems with counting votes.

Violation of the procedure for transferring documents to GZI

Conducting meetings with a similar agenda

When the owners are unhappy with the decision of the meeting, they decide to hold a new one on similar issues as soon as possible in order to change the previous one. The management company does not oppose this. But this can lead to negative consequences for the MA.

If, within three months, GZI receives two or more minutes of meetings of one MKD containing decisions on similar issues on the agenda, the GZI body is obliged to conduct an unscheduled check in order to establish the fact of compliance with the requirements of the law when organizing, holding and registering the results of such a meeting.

Changing the agenda

It so happens that during a meeting, an issue appears that the owners want to discuss, and it is additionally included in the agenda. It is forbidden to do so, according to Part 2 of Art. 46 LCD RF. During the meeting, you cannot make decisions on issues not included in the agenda, as well as change the agenda of the meeting.

If the questions that come up during the meeting are important, write them down and put them on the agenda for the next meeting.

Meeting quorum violation

Another difficulty in holding a meeting is to figure out how many votes at the meeting a particular decision is made.

A general meeting of owners of premises in an apartment building is considered legitimate if more than 50% of owners of premises in an apartment building attended it. But 50% of the votes do not provide a quorum on all issues brought up to the OSS.

The RF JK divides issues according to the degree of importance. The issues of choosing the chairman, secretary and counting commission of the meeting, the method of management and the ICM Council are decided by 50% of all votes who took part in the voting.

The method of forming a capital repair fund is chosen by 50% of the number of votes of all owners of premises in an apartment building (clause 1.1, part 2, article 44 of the RF LC).

Other issues are decided by a qualified number of votes - this is ⅔ of the number of votes of all owners of premises in MKD. One of these questions is about the use of the fund for capital repairs in apartment buildings (part 1 of article 46 of the RF Housing Code).

The absolute majority (100%) resolve only issues related to the reduction of the area of common property of an apartment building.

In order for the initiator to be sure that the meeting is being held in accordance with all the rules, he must be guided by Art. 44 - 48 of the RF LC, which indicate the main nuances of the OSS.

Prepare and conduct a successful general meeting of owners of premises in MKD using the service. The service helps to draw up the documents necessary for the meeting in accordance with order No. 937 / pr, form the agenda, count the votes and prepare the OSS protocol.

The leader of the general meeting in housing legislation is called the chairman; the person who prepares the papers is the secretary of the general meeting. The votes of the meeting participants are counted by the members counting commission of an apartment building... In the future, the chairman, secretary of the general meeting and members of the counting commission will be called responsible persons.

In this article, you will learn:

how to approach the selection of candidates;
what powers the responsible persons have;
how often to elect them;
than the absence of an elected counting commission threatens.

How to choose members of the counting commission

Requirements for those who can be elected as responsible persons of the general meeting are not established by law. Practice tells them.

Let's figure out the quantity. The chairman is one person, the secretary is also. It can be the same person, but only for a “small” general meeting. For example, in an apartment building, where there are no more than 30 apartments. In a house with many rooms, it will be difficult for the chairman of the meeting to keep minutes in parallel. The counting commission may consist of one or several people - the legislation does not regulate this either.

Remember that the success of the meeting and its legitimacy will depend on the competence of those in charge.

You can download an example of the minutes on our website: Minutes of the general meeting of owners of premises in MKD

What are the powers of those responsible at the general meeting

The chairman is elected so that he will lead the meeting of owners, and the secretary - to keep and draw up the minutes.

At the end of the meeting, the chairman, secretary and members of the counting commission who count the votes shall sign the minutes of the owners' meeting. This is defined in paragraphs. 3-5 tbsp. 181.2 of the Civil Code of the Russian Federation and clause 21 of the Requirements for the registration of minutes of general meetings of owners of premises in apartment buildings, approved. by order of the Ministry of Construction of Russia dated December 25, 2015 No. 937 / pr.

Question

Do I need to pay for the work of the chairman, secretary and members of the counting commission of an apartment building?

The remuneration of the responsible persons at the general meeting of the RF LC does not provide for. But such a decision can be made by the general meeting of owners of premises in the MKD. To do this, the owners must determine the amount of remuneration and the procedure for its payment. Include these items on the owner meeting agenda. Include the costs of salaries of responsible persons in the costs of financing the general meeting. This approach complies with the provisions of clause 3.5, h. 2, Art. 44 LCD RF.

How do they elect

The procedure for choosing a management company: an algorithm of actions of the owners

Question

Who will sign the minutes of the general meeting if the owners have not elected a chairman, secretary or counting board?

The minutes of the general meeting of the owners of an apartment building must always be drawn up, and it must be drawn up according to the rules.

If the issue of the election of the chairman, secretary of the meeting, members of the counting commission is included in the agenda of the meeting, but the owners rejected the proposed candidates, the minutes are signed by the initiators of the meeting. This is enshrined in clause 21 of the Requirements for the registration of minutes of general meetings of owners of premises in apartment buildings, approved. by order of the Ministry of Construction of Russia dated December 25, 2015 No. 937 / pr.

How often to select members of the Court of Accounts

The Ministry of Construction of Russia recommends that the agenda of each general meeting include issues on the election of the chairman, secretary and members of the counting commission (clause 2, section VI of the Methodological Recommendations; see figure). But these issues will overload the agenda of subsequent meetings and increase the risk of owners rejecting the proposed candidates in the future.

Consequences of the absence at the meeting of the chairman, secretary and members of the counting commission of an apartment building

A significant violation of the rules for drawing up the minutes, including the rules on the written form of the minutes, may result in the invalidity of the decision of the meeting (subparagraph 4 of paragraph 1 of article 181.4 of the Civil Code of the Russian Federation).

The court, taking into account all the circumstances of the case, has the right to uphold the decision if (part 6 of article 46 of the LC RF):

considers that the absence of the signatures of these persons in the protocol is not a material violation;
the decision did not entail any damage to the owners, who would appeal against it.

GENERAL PROVISIONS

Remember that we have the main obstacle - Part 6 of Article 46 of the LC RF about the 6-month limitation period:

The owner of the premises in an apartment building has the right to appeal to the court against a decision taken by a general meeting of owners of premises in this building in violation of the requirements of this Code, if he did not participate in this meeting or voted against such a decision and if such a decision violated his rights and legitimate interests. An application for such an appeal may be filed with the court within six months from the day when the specified owner learned or should have learned about the decision. The court, taking into account all the circumstances of the case, has the right to uphold the contested decision if the voting of the said owner could not affect the voting results, the violations committed are not material and the decision made did not entail any damage to the said owner.

We go around the obstacle pointing out the nullity of the decision of the meeting... But at the same time, it is absolutely necessary not to mention the mass of other violations, so as not to give the enemy the opportunity to raise before the court the question of the non-materiality of the violations mentioned - we focus only on THREE violations

Failure to comply with a quorum (eligibility; certain types of evidence are not provided)

The established requirements have been violated - the protocol does not have proper requisites (the signature of the secretary unelected by the meeting; absence of the secretary's signature, the chairman's signature is forged, etc.)

We indicate the nullity of the decision of the meeting in documents of various forms

In a lawsuit - in the form of an Objection to a claim or in the form of an Additional Explanation in a lawsuit;

In appeals to supervisory or law enforcement agencies;

In complaints about procedural decisions taken on our appeals

Section 1. Ineligibility of the Meeting

EXAMPLE # 1 - NOT PROVEN QUORUM

To court

Federal judge

Participant in the case

ADDITIONAL EXPLANATION

The defendant claims that there is a decision of the general meeting from DATE, at which a decision was allegedly made to elect the LLC as the managing organization. In fact, there is no evidence of the adoption by the meeting (if it took place) of any decision due to the lack of proof of the quorum

According to Part 3 of Art. 45 LCD RF:

"The general meeting of owners of premises in an apartment building is competent (has a quorum) if the owners of premises in this building or their representatives who have more than fifty percent of the votes of the total number of votes took part in it."

According to Part 5 of Art. 181.2 of the Civil Code of the Russian Federation The minutes of the meeting must contain information about the persons who took part in the voting (clause 2). In violation of these requirements, the minutes of the meeting do not contain information about the persons who took part in the meeting, and therefore there is no evidence that the participants in the meeting actually possessed, in aggregate, a sufficient number of votes, giving the right to make decisions.

In the decision of the owner on issues put to a vote, in accordance with Part 3 of Art. 47 of the RF LC must indicate:

1) information about the person participating in the voting;

2) information on the document confirming the ownership of the person participating in the voting to the premises in the corresponding apartment building;

3) decisions on each question rake the days of the day, expressed by the wording "for", "against" or "abstained".

According to Part 1 of Art. 46 LCD RF

State policy and legal regulation in the field of housing and communal services is carried out by the Ministry of Construction and Housing and Utilities. In the Methodological Recommendations on the procedure for organizing and holding general meetings of owners of premises in apartment buildings, approved by order of the Ministry of Construction and Housing and Communal Services of the Russian Federation of July 31, 2014 No. 411 / pr, in paragraph 5 of Section VI, it is established that the presence of a quorum is confirmed

a registration sheet for the participants of the general meeting (owners of premises in an apartment building or their representatives) indicating the surname, first name, patronymic, address, details of the certificate of ownership of the premises in this apartment building, share in common ownership of common property in this apartment building, signature the owner or the owner's representative with a power of attorney attached, if the owner's representative takes part in the general meeting.

In full accordance with article 60 of the Code of Civil Procedure of the Russian Federation, the above requirements for "information about persons" indicate that proof of the legality of a meeting is allowed only by information about the persons who took part in the voting:

i) the original Registration Sheet (Register of Participants) of the meeting with their signatures

ii) original Bulletins - Decisions of the participants of the meeting with their signatures, -but by no other means of proving I;

non-partnership owners of premises

in an apartment building have the right to familiarize themselves with the following documents:

6) minutes of general meetings of the members of the partnership,… .;

7) documents confirming the results of voting at the general meeting of members of the comrades tva,

Our legal position is that the general meeting at the specified time did not take place at all, there were no participants in the meeting, they did not make decisions on the agenda and did not fill out decision forms. In the absence of voting ballots (decisions) and the Register of meeting participants, it is impossible to verify the presence of the fact of participation in the meeting of owners holding more than fifty percent of the votes of the total number of votes.

According to paragraph 2 of Art. 185.5 of the Civil Code of the Russian Federation

Since the opposing party has not presented evidence of the legality of the meeting, I PLEASE in the reasoning part of the judgment to reflect this circumstance, which is decisive for the correct resolution of the case.

EXAMPLE 2. EXCEEDING THE COMPETENCE OF THE MEETING WHEN FORMING THE ACCOUNTING COMMISSION

To court

Federal judge

Party de la

ADDITIONAL EXPLANATION

regarding the formation of the counting commission

According to Part 5 of Art. 181.2 of the Civil Code of the Russian Federation obtain information about the persons who carried out the counting of votes (subparagraph 4) and the persons who signed the protocol (subparagraph 5). The literal interpretation of the above provisions of the law boils down to the fact that the counting of votes is carried out by some persons, and the protocol is signed by others. It should be noted that according to Part 3 of Art. 181.2 of the Civil Code of the Russian Federation, the minutes are signed by the chairman of the meeting and the secretary of the meeting. Consequently, the procedure for holding the meeting, established by law, excludes the inclusion of the chairman and secretary of the meeting in the composition of the counting commission.

According to Part 1 of Art. 46 LCD RF

The decisions of the general meeting of owners of premises in an apartment building are drawn up in protocols in accordance with the requirements established by the federal executive body responsible for the development and implementation of state policy and legal regulation in the field of housing and communal services.

State policy and legal regulation in the field of housing and communal services is carried out by the Ministry of Construction and Housing and Utilities. In the Methodological Recommendations on the procedure for organizing and holding general meetings of owners of premises in apartment buildings, approved by order of the Ministry of Construction and Housing and Communal Services of the Russian Federation of July 31, 2014 No. 411 / pr, in paragraph 13 of Section VII, it is established that "to summarize the results of the general meeting in the form a counting commission is created by absentee voting, the members of which are elected at the general meeting. "

The "complicity" of the chairman and secretary of the meeting in the work of the counting commission deprives the vote counting of legitimacy. According to paragraph 17 of Section VII of the above Methodological Recommendations, the members of the counting commission sign the Protocol separately about the Chairman and the Secretary of the meeting.

Taking into account the requirements for certain means of proof (Article 60 of the Code of Civil Procedure of the Russian Federation), proving the legality of the counting commission is allowed only by electing other persons to it, except for the chairman and secretary elected by the meeting. No such evidence has been presented, therefore there is no reason to trust the voting results calculated with the participation of the chairman and secretary of the meeting.

Within the competence of the meeting in Part 2 of Art. 44 of the Housing Code of the Russian Federation does not specify the right of the general meeting of owners to establish its own procedure for counting votes and does not provide for the right to vest the chairman and secretary of the meeting with the rights to count votes.

According to h. 5 art. 46 LCD RF only if the decision becomes binding on all owners of premises in an apartment building, if it is adopted in accordance with the established procedure and on issues within the competence of such a meeting... Direct violation of the procedure for the formation of the counting commission established by law indicates the nullity of the decision due to the excess of the powers of the meeting to establish a special procedure for counting votes, which is different from the statutory procedure, when it is adopted. Such the decision has not acquired legal force, it is not binding on the owners of the premises

Since the opposing party did not provide evidence of compliance with the requirements of the law when forming the counting commission, I PLEASE reflect this circumstance, which is decisive for the correct resolution of the case, in the reasoning part of the court decision.

Section 2. VIOLATION OF THE REQUIREMENTS FOR THE STATED ORDER OF THE MEETING OF THE MEETING

EXAMPLE # 3 - RELATING TO SIGNING THE PROTOCOL

To court

Federal judge

Participant in the case

According to h. 5 art. 46 LCD RF only if the decision becomes binding for all owners of premises in an apartment building, if it is accepted in accordance with the established procedure. The established procedure requires a signature in the Protocol the chairman of the meeting and the secretary of the meeting (part 3 of article 181.2 of the Civil Code of the Russian Federation), however, in violation of this requirement, the minutes of the general meeting were not signed by the chairman of the meeting.

According to Part 1 of Art. 46 LCD RF

The decisions of the general meeting of owners of premises in an apartment building are drawn up in protocols in accordance with the requirements established by the federal executive body in charge of developing and selling tion of state policy and legal regulation in the field of housing and communal services.

State policy and legal regulation in the field of housing and communal services is carried out by the Ministry of Construction and Housing and Utilities. In the Methodological Recommendations on the procedure for organizing and holding general meetings of owners of premises in apartment buildings, approved by order of the Ministry of Construction and Housing and Communal Services of the Russian Federation of July 31, 2014 No. 411 / pr, in paragraph 15 of Section VII, it is established that "the minutes of the general meeting in the form of absentee voting is drawn up in writing, signed by the chairman of the general meeting and the secretary of the general meeting, as well as members of the counting commission. "

In violation of the accepted procedure, the minutes of the meeting were not signed by the chairman of the meeting

chairman - K.Yu. BEKETOV.

secretary - A.S. CUZIN.

DATE does not have the property of an official document that the decision was made in violation of the established procedure, and therefore the decisions contained in it have no legal force

EXAMPLE # 4 -NOTSIGNATURE OF THE PROTOCOL and CERTIFICATION OF SIGNATURES

To court

Federal judge

Participant of cases but

ADDITIONAL WRITTEN EXPLANATION

as proof of the lack of legal force of the minutes of the meeting from DATE

The minutes of the general meeting from DATE was drawn up in violation of Part 3 of Art. 45 and h. 1, 2 of Art. 46 LCD RF. The protocol is certified by the seal of the Company and signed by the employees of the Company AA, BB, BB as members of the counting commission, and by the General Director of the SG.

The protocol does not contain a single signature of the owner of the premises in the house. By virtue of Part 1 of Art. 46 of the Housing Code of the Russian Federation, decisions of the general meeting of owners are drawn up in minutes in the manner prescribed by the general meeting of owners of premises in this house.

The protocol is a document reflecting the decisions taken by the owners, which excludes the signing of this document by other persons who are not the owners, unless the owners, by their decision, have not established such a special procedure for drawing up the protocol. Proofs of the owners' acceptance of a special procedure for the registration of the minutes were not presented.

According to the law, the minutes are signed by the chairman of the meeting and the secretary of the meeting (part 3 of article 181.2 of the Civil Code of the Russian Federation), however, in violation of this requirement, there is no signature of the chairman of the meeting under the minutes of the general meeting.

By virtue of Part 1 of Art. 46 of the Housing Code of the Russian Federation, decisions of the general meeting of owners are drawn up in minutes in the manner prescribed by the general meeting of owners of premises in this house. The meeting did not establish a procedure in which the protocol is not signed by the chairman.

The decision of the owners to elect AA, BB, and BB as members of the counting commission grants these persons the right to count the votes only. No decision was made on the right of these persons to sign the minutes of the general meeting of owners on behalf of the owners.

The certification on the Minutes of the meeting of signatures of the members of the counting commission AA, BB and BB with the seal of the managing organization indicates that the document belongs to the managing organization, but the general meeting of owners of premises in an apartment building is the management body of an apartment building not subordinate to any legal entity (part 1 of article 44 of the RF LC RF ).

According to clause 23 of GOST R 51141-98, only a document drawn up and certified in accordance with the established procedure is recognized as an official document. According to clause 4.9 of GOST R 6.30-2003 "Organizational and administrative documentation. Requirements for paperwork ..."

“The protocol is signed according to the scheme

chairman - K.Yu. BEKETOV.

secretary - A.S. CUZIN.

The words "chairman" and "secretary" are printed to the left of the zero position of the tabulator, separated by two spaces from the title and from each other ... The minutes are drawn up by the secretary of the meeting, the minutes are legally valid only if there are two signatures - the chairman and the secretary. signatures are placed, separated from the text by two or three line spacing, from the border of the left margin. the first copy of the protocol is signed, which is filed by the secretary in the case and kept in accordance with the period determined by the nomenclature of cases.

Judicial practice confirms that the improper execution of the minutes of the general meeting as a document having legal force - in particular, the absence of the signature of the chairman of the meeting - is a significant circumstance for the recognition of such a protocol as null and void - see. for example, the Cassation ruling of the Judicial Collegium for Civil Cases of the Supreme Court of the Republic of Karelia dated December 27, 2011 in case No. 33-3868 / 2011.

It follows that the Protocol fromDATE does not have the property of an official document, and therefore the decisions contained in it have no legal force

Section 3. ABSENCE OF QUORUM WHEN EXCESSING COMPETENCIES IN THE PART OF FORMING MEETING BODIES

Example No. 5

To court

Federal judge

Participant in the case

ADDITIONAL EXPLANATION

The defendant claims that there is a decision of the general meeting of March 28, 2013, at which a decision was allegedly made to elect OOO UK Zhilishchny Standard as the managing organization. In fact, there is no evidence that the meeting (if it took place) made any decision on three grounds.

1. LACK OF TRUE INFORMATION ABOUT VOTING PARTICIPANTS

According to Part 3 of Art. 45 LCD RF:

“The general meeting of owners of premises in an apartment building is competent (has a quorum), if it was attended by premises owners in this house or their representatives holding more than fifty percent of the votes of the total number of votes. "

According to paragraph 2 of part 5 of Art. 181.2 of the Civil Code of the Russian Federation The minutes of the meeting must contain information about the persons who took part in the voting. In violation of these requirements, the minutes of the meeting do not contain information about the persons who took part in the meeting, and therefore there is no evidence that the participants in the meeting actually had a sufficient number of votes in aggregate, giving the right to make decisions.

In full compliance with Article 60 of the Code of Civil Procedure of the Russian Federation, the above requirements for

"information about persons" indicate that proof of the legality of the meeting is allowed only by information about the persons who took part in the voting:

i) the original Register of meeting participants with their signatures and

ii) original Bulletins - Decisions of the participants of the meeting with their signatures - but no other means of proof;

This evidence is not presented, thus quorum has not been proven.

From the content of the agenda of the meeting it is clear that the issue of electing the counting commission was not submitted to the decision of the voting participants. Meanwhile, according to Part 5 of Art. 181.2 of the Civil Code of the Russian Federation The minutes of the meeting must contain information about the persons who carried out the counting of votes (clause 4) and about the persons who signed the minutes (clause 5). The literal interpretation of the above provisions of the law boils down to the fact that the counting of votes is carried out by some persons, and the protocol is signed by others.

In the Methodological Recommendations on the procedure for organizing and holding general meetings of owners of premises in apartment buildings approved by order of the Ministry of Construction and Housing and Communal Services of the Russian Federation of July 31, 2014 No. 411 / pr, it is established in paragraph 13 of Section VII that "to sum up the results of the general meeting in In the form of absentee voting, a counting commission is created, the members of which are elected at the general meeting. "

According to paragraph 17 of Section VII of the above Methodological Recommendations members of the counting commission sign the Protocol separately about the Chairman and the secretary of the meeting.

Taking into account the requirements for certain means of proof (Article 60 of the Code of Civil Procedure of the Russian Federation), proving the legality of the counting commission is allowed only by electing other persons to it, in addition to the chairman and secretary elected by the meeting. No such evidence has been presented, therefore there is no reason to believe that the voting results were determined in the manner prescribed by law

According to Part 5 of Art. 46 of the RF LC only if the decision becomes binding for all owners of premises in an apartment building, if it is made in the prescribed manner and on issues within the competence of such a meeting. Direct violation of the procedure established by law for the formation of the counting commission deprives the summing up of the results of the meeting of legitimacy, such a decision did not acquire legal force, it is not mandatory for the owners of the premises

3. EXCEEDING THE COMPETENCE OF THE MEETING IN FORMATIONBODIES OF THE MEETING

According to Part 3 of Art. 181.2 Code of Civil Procedure of the Russian Federation

Vasilyeva D.R. is indicated in the Minutes as the secretary of the meeting, but she cannot be either a participant in the meeting, much less elected to the elective position of secretary of the meeting, since she was not the owner of the premises at the time of the meeting. The representative of Yarunova's organization, in support of Vasilyeva's authority to participate in the meeting, submitted on November 7, 2016, a power of attorney certified by LLC "Management Company Zhilishchny Standard" for participation in the meeting by Vasilyeva D.R. from her relative Shafigullin R.V., who received a certificate of ownership of the apartment in December 2013 - 8 months after the meeting.

It follows, firstly, that at the time of issuing the power of attorney specified in the power of attorney, the principal did not have ownership and transferred powers that he did not have. And secondly,

LLC "UK Zhilishchny Standard" did not have the right of a managing organization at the time of issuing the power of attorney; this organization acquired the status of a managing organization after the meeting.

According to Part 1 of Art. 46 LCD RF

The minutes of the general meeting of owners of premises in an apartment building is an official document.

Since the Minutes are not signed by the secretary who has the right to participate in the meeting, he acquired the characteristics of an official document, such a document is considered null and void regardless of whether it is recognized as such by the court.

Conclusion

According to the current legislation, the decision of the meeting can be challenged; in this case, the term "voidable transaction" is used. But in this case, only our indication of the nullity of the decision of the meeting is sufficient - in paragraph 1 of Art. 185.3 of the Civil Code of the Russian Federation states:

The decision of the meeting is invalid on the grounds established by this Code or other laws, by virtue of its recognition as such by the court (a contested decision) or regardless of such recognition (void decision).

According to paragraph 2 of Art. 185.5 of the Civil Code of the Russian Federation

Unless otherwise provided by law, the decision of the meeting is void if it ... is adopted in the absence of the required quorum

There was no evidence of a quorum. According to Art. 60 of the Code of Civil Procedure of the Russian Federation, failure to present evidence of a certain type cannot be compensated for by any other means of evidence.

According to Part 1 of Art. 46 LCD RF

The minutes of the general meeting of owners of premises in an apartment building is an official document.

Since the formed Minutes did not acquire signs of an official document due to the absence of the signature of the secretary of the meeting and the absence of signatures of the members of the counting commission. Such a document is considered null and void regardless of its recognition as such by the court.

Under the aforementioned circumstances, there was no reason to believe that

That the meeting actually took place;

That it was attended by the proper number of participants in the meeting;

That the meeting formed in the proper order the bodies of the meeting (counting commission; chairman and secretary);

That the decision forms were actually handed out to the participants;

That the participants noted in the decision forms all the necessary details, including their registered ownership;

That the commission elected by the meeting carried out the counting of votes;

That the members of the counting commission signed the results of the vote;

That the chairman and the secretary, who has the right to participate in the meeting, have drawn up the minutes with their signatures

I PLEASE in the reasoning part of the judgment to reflect this circumstance, which is of decisive importance for the correct resolution of the case.

EXAMPLE # 6 -SIGNING OF THE PROTOCOL BY AN UNLAWFUL PERSON AND THE COUNTING OF VOTES BY AN UNElected COUNTING COMMISSION

To court

Plaintiffs

Homeowners' association defendant

STATEMENT OF CLAIM

on the application of the consequences is void noah deal

We became aware of the existence of Protocol No. 4 of the decision of the meeting held from 12 to 26 May 2015 on the approval of the conclusion of the audit commission, on the approval of the estimate, on renaming the fund and other issues (Appendix No. 2). We consider that the decision of this meeting is void and we put before the court the question of applying the consequences of the invalidity of the void decision, in support of which we give the following arguments

1 - According to Part 5 of Art. 46 of the Housing Code of the Russian Federation, the decision of the general meeting of owners of premises in an apartment building becomes “mandatory for all owners of premises in an apartment building, including for those owners who did not participate in the voting”, only if it was adopted “in accordance with the procedure established by this Code, on issues within the competence of such a meeting ”. However, when holding a general meeting of owners, the procedure established by law was violated, moreover, many times in the form

Failure to comply with the procedure for registration of the protocol (ii)

i) From the content of Protocol No. 4 it follows that the agenda did not provide for the election of members of the counting commission. At the same time, the Protocol contains an entry:

Members of the counting commission (owners of premises who took part in the counting of votes)

1. Vorobyeva Olga Nikolaevna (room 147);

2. Barshina Olga Yurievna (room 78)

Whence it follows that the counting commission was not elected by the meeting, and the participants of the meeting were O.N. Vorobyova. and Barshina O.Yu. do not have the authority to count the votes cast by the meeting participants. Housing legislation provides for the scope of competence of the general meeting of owners - part 2 of Art. 44 LCD RF. Within the competence, the powers of the general meeting of owners to violate the established procedure for counting votes are not indicated and the right of any persons who do not have special powers to perform the duties of members of the counting commission is not indicated.

Since the issue of electing members of the counting commission was not included in the agenda at all, the appearance of any voting results was excluded; no voting results have been properly summed up on any issues on the agenda, and therefore no decisions have legal consequences.

ii) According to Part 3 of Art. 181.2 Code of Civil Procedure of the Russian Federation

The minutes of the meeting are signed by the chairman and the secretary

The meeting is opened and chaired by the Chairman of the Board of the Privolnoye HOA - VM Mzhelsky. Secretary of the meeting - L.L. Yarkova

Since the participants of the meeting did not elect the secretary of the meeting, L.L. Yarkova. did not receive the authority from the meeting to participate in the preparation and signing of the minutes of the meeting. Without the signature of the secretary, the Protocol is deprived of the mandatory details of the document.

According to term No. 8 from GOST 7.0.8 - 2013 "System of standards ... Terms and definitions"

Official document: A document created by an organization, official or citizen, drawn up in the prescribed manner ke

According to Part 1 of Art. 46 LCD RF

Minutes of the general meeting of the owners of the premises th in an apartment building is an official document.

Since the formed Protocol has not acquired the signs of an official document, such a document is considered null and void regardless of whether it is recognized as such by the court.

2 - The competence of the general meeting is limited by Part 2 of Art. 44 LCD RF; the meeting does not have the right to accept for its consideration any issue included in the agenda; the meeting has the right to consider only those issues that are affected by the LCD of the Russian Federation. But the housing legislation does not allow the adoption of decisions by the meeting without the formation of a counting commission and without the election of a secretary of the meeting. According to paragraph 3 of Art. 185.5 of the Civil Code of the Russian Federation

Unless otherwise provided by law, the decision of the meeting is void if it ... is taken on an issue that does not fall within the competence of the meeting

3 - According to the current legislation, the decision of the meeting can be challenged; in this case, the term "voidable transaction" is used. But in this case, only our indication of the nullity of the decision of the meeting is sufficient - in paragraph 1 of Art. 185.3 of the Civil Code of the Russian Federation states:

Simultaneously with the indication of the nullity of the decision of the meeting, we put before the court the question of the application of the consequences of the invalidity of the null and void decision in full accordance with Art. 12 of the Civil Code of the Russian Federation

Based on the above, guided by art. eighteen; 46 of the Constitution of the Russian Federation, Articles 1, 4, 8, 44, 45; 46 LCD RF; article 16 of the Consumer Protection Law; Articles 8, 12, 166-169; 182.1; 185.1 of the Civil Code of the Russian Federation; Articles 131-132 of the Code of Civil Procedure of the Russian Federation

In the procedure for applying the consequences of the invalidity of the void decision of the general meeting, RECOGNIZE the decision of the general meeting as having no legal consequences

ATTACHMENT

1. Receipt for payment of state duty 300 rubles

2. Minutes of the meeting (copy)

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