Theory of everything. Theory of everything Housing Code of the Russian Federation Art. 44 48

1. The general meeting of owners of premises in an apartment building is a governing body apartment building. A general meeting of owners of premises in an apartment building is held for the purpose of managing the apartment building by discussing agenda items and making decisions on issues put to vote.

1.1. Persons who accepted from the developer (person providing construction apartment building) after issuing permission to put into operation an apartment building premises in this building under a transfer deed or other transfer document, has the right to take part in general meetings of owners of premises in an apartment building and make decisions on issues referred by this Code to the competence of the general meeting of owners of premises in an apartment building, in the manner prescribed by this Code, within a year from the date of issue of permission to put the apartment building into operation.

2. The competence of the general meeting of owners of premises in an apartment building includes:

1) making decisions on the reconstruction of an apartment building (including its expansion or addition), construction outbuildings and other buildings, structures, structures, major repairs common property in an apartment building, on the use of the fund overhaul, on the reconstruction and (or) redevelopment of premises that are part of the common property in an apartment building;

1.1) making decisions on choosing a method for forming a capital repair fund, choosing a person authorized to open a special account in a Russian credit organization, performing transactions with in cash located on a special account;

1.1-1) making decisions on the amount of the contribution for capital repairs in terms of the excess of its size over the established minimum amount of the contribution for capital repairs, the minimum amount of the capital repairs fund in terms of its excess over the established minimum amount of the capital repairs fund (if the law of the subject The Russian Federation has established a minimum size of the capital repair fund), placing temporarily free funds of the capital repair fund, formed in a special account, on a special deposit in a Russian credit institution;

2) making decisions about the limits of use land plot, on which the apartment building is located, including the introduction of restrictions on its use, as well as the conclusion of an agreement on the establishment of an easement, an agreement on the implementation of a public easement in relation to a land plot related to the common property in an apartment building;

2.1) making decisions on the improvement of the land plot on which the apartment building is located and which belongs to the common property of the owners of premises in the apartment building, including the placement, maintenance and operation of landscaping and landscaping elements on the specified land plot;

3) making decisions on the use of the common property of the owners of premises in an apartment building by other persons, including the conclusion of contracts for the installation and operation of advertising structures, if for their installation and operation it is intended to use the common property of the owners of premises in an apartment building;

3.1) making decisions on identifying persons who, on behalf of the owners of premises in an apartment building, are authorized to conclude agreements on the use of the common property of the owners of premises in an apartment building (including agreements for the installation and operation of advertising structures), to submit documents for approval of reconstruction and ( or) redevelopment of premises that are part of the common property in an apartment building, for the conclusion of an agreement on the establishment of an easement, an agreement on the implementation of a public easement in relation to a land plot related to the common property of the owners of premises in an apartment building, and on the persons authorized to sign these agreements , as well as the procedure for receiving funds provided for in these agreements on the terms determined by decision general meeting;

3.2) making decisions about using the system or other information systems when holding a general meeting of owners of premises in an apartment building in the form of absentee voting;

3.3) making decisions on identifying persons who, on behalf of the owners of premises in an apartment building, are authorized to use the system or other information systems when holding a general meeting of owners of premises in an apartment building in the form of absentee voting (hereinafter referred to as the administrator of the general meeting);

3.4) making a decision on the procedure for the administrator of the general meeting to receive messages about holding general meetings of owners of premises in an apartment building, decisions of owners of premises in an apartment building on issues put to vote, as well as the duration of voting on issues on the agenda of the general meeting of owners of premises in an apartment building in the form of absentee voting using the system;

3.5) making a decision on the procedure for financing expenses associated with convening and organizing a general meeting by the management organization, the board of a homeowners’ association, housing or housing construction cooperative, or other specialized consumer cooperative in accordance with;

4.1) decision making current repairs common property in an apartment building;

4.2) making a decision to grant the council of an apartment building the authority to make decisions on the current repairs of common property in an apartment building;

4.3) making a decision to vest the chairman of the council of an apartment building with the authority to make decisions on issues not specified in, with the exception of the powers falling within the competence of the general meeting of owners of premises in an apartment building;

4.4) making a decision on the conclusion by the owners of premises in an apartment building, acting on their own behalf, in the manner established by this Code, respectively, of an agreement for cold and hot water supply, sewerage, electricity supply, gas supply (including supply domestic gas in cylinders), heating (heat supply, including supplies solid fuel in the presence of stove heating) (hereinafter also referred to as an agreement containing provisions on the provision utilities), an agreement for the provision of services for the management of municipal solid waste with a resource supplying organization, regional operator on management of municipal solid waste;

4.5) making a decision on consent to transfer residential premises to non-residential premises;

5) other issues referred by this Code to the competence of the general meeting of owners of premises in an apartment building.

Commentary to Art. 44 Residential Complex of the Russian Federation

1. The plurality of subjects of ownership of the same property presupposes the need to coordinate their expression of will (clause 1 of article 246, clause 1 of article 247 of the Civil Code). When the number of such entities is small, the possibility of an insurmountable conflict of interests arising is less likely, and reaching agreement on the management of property that is in their common ownership generally does not cause great difficulties and does not require the establishment of a special form of coordination of their wills and making decisions on such management. Wherein this management, which allows a small number of owners to manage activities aimed at preserving, maintaining and developing the management object, does not always require the presence of a special body that carries out such management.

2. Privatization housing stock in the Russian Federation has created a situation where the majority apartment buildings do not have one owner. Such houses, as a rule, consist of many premises owned by citizens, legal entities, Russian Federation, subjects of the Federation, municipalities, which significantly complicates the management of common property in such houses. Taking into account this circumstance, the commented article establishes the specified special form of approval and decision-making in the form of a general meeting of owners of premises in an apartment building, and also defines such a general meeting as the management body of the apartment building.

3. The general meeting of owners of the premises of an apartment building, as the management body of the apartment building, is the only such body and exists throughout the entire “life” of the building as an apartment building - as long as there is a legal connection between the owners of the premises in a given building regarding the common property in it. The only exception, perhaps, is one case when all the premises in an apartment building belong to one owner (see).

4. The general meeting of owners of premises in an apartment building, as the management body of the apartment building, has its own historical retrospective.

Until 1917, the housing stock was mainly owned by homeowners, i.e. houses belonged, as a rule, to a narrow circle of owners, between whom there were no stable legal ties based on the right of common ownership. 80% of the housing stock of Russian cities consisted of one-story wooden and small-sized houses owned by citizens. Therefore, the management of the houses was carried out by their owners independently or through their managers, and the general meeting of owners as a body for managing the houses was not in demand.
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See: Dmitriev N. Housing issue. Two worlds - two approaches. M., 1973. P. 71.

After 1917, by the Decree of the All-Russian Central Executive Committee of August 20, 1918 “On the abolition of the right of private ownership of real estate in cities,” the bulk of the privately owned housing stock was nationalized and transferred to the jurisdiction of local Soviets, which were charged with the costs associated with maintenance of municipal houses. However, the local Councils, to which the entire municipalized housing stock was transferred, due to the lack of financial resources, were not able to maintain it in proper condition, carry out major repairs, etc. At the same time, the relocation of residents from one premises to another, widely practiced at that time, by order of housing authorities authorities, the possibility of forced consolidation of residents and the associated lack of confidence among citizens in further living in this premises reduced the interest of residents in the proper maintenance of the occupied premises and in making repairs. Taken together, all these factors had a detrimental effect on the safety of the housing stock. For example, in the very first years of Soviet power in Moscow, 7 thousand apartment buildings containing 41 thousand apartments were destroyed or fell into complete disrepair. Therefore, in order to prevent the destruction of houses, which had reached alarming proportions, the Council of People's Commissars of the RSFSR issued on May 23, 1921 the Decree “On measures to improve living conditions working population and measures to combat the destruction of housing." According to this Resolution, the relevant departments were instructed to the shortest possible time develop regulations on the management of houses in cities, assigning responsibility for the safety of residential premises to house managements. Residents living in the building should have been involved in monitoring the work of house management.
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SU RSFSR. 1918. N 62. Art. 674.

SU RSFSR. 1921. N 49. Art. 253.

This laid the foundation for the management of houses, including through decision-making by residents of a particular house at their general meeting. However, in contrast to the legal nature of the general meeting of owners of premises in an apartment building, the legal nature of the general meeting of residents was significantly different. The legal connection of the persons participating in such meetings did not arise on the basis of the right of common ownership, but was based on the mode of use of the residential premises (residence in it).

The regulation on the management of houses was ultimately approved by the Council of People's Commissars of the RSFSR on August 8, 1921 and provided for the entrustment of a number of issues related to the management of the house to the general meeting of residents. In particular, by decision of the annual general meeting of residents, the manager of the house was elected for a period of one year, who during this period exercised direct management of the house on an ongoing basis; The general meeting of residents also considered issues related to the reimbursement of part of the costs of current repairs of the house, remuneration of the house manager, early removal of the house manager from managing the house in case of improper performance of his duties, consideration of heating cost estimates and the solution of many other problems.
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Right there. N 60. Art. 411.

5. Over the past decades, management conditions for the most part apartment buildings were formed by bodies local government. Owners of premises in apartment buildings were essentially excluded from the management of their buildings, which led to widespread disregard for the rights of such owners to participate in decision-making related to the maintenance, use and disposal of common property in the corresponding apartment buildings (when in most cases such decisions were made by housing maintenance organizations without taking into account the legitimate interests of the owners); to the predominance of administrative methods of management, municipalization (essentially monopolization) of the management of apartment buildings; to the lack of economic and organizational prerequisites for the development of other forms of management of apartment buildings.

The concept of “housing stock management” contained in the Housing Code of the RSFSR was based on the fact that such management as a whole was carried out exclusively by state or local authorities (Articles 16, 17 of the Housing Code of the RSFSR), and directly - by housing maintenance organizations, whose role was limited to mainly to the “operation and maintenance of the housing stock” (Articles 22, 129, 141, 144, 148 of the RSFSR Housing Code, etc.). The management system for apartment buildings, which continued to be used during the period of active formation of property in the housing sector, was not able to take into account the fact that most apartment buildings no longer belonged to the state and the new realities of economic relations required not only taking into account the rights and legitimate interests of the owners of premises in apartment buildings, but also protection of their ownership rights to common property in apartment buildings, guaranteed primarily by the Constitution of the Russian Federation.

6. The principle of managing an apartment building laid down in the commented article, when the main and only body of such management is the general meeting of owners of premises in this building, is intended to radically change the current situation in the management of apartment buildings.

7. The general meeting of owners of premises in an apartment building, as a governing body, has its own competence. The nature of such competence is again related to the regime of property rights of owners to common property in an apartment building. At the same time, the constituent elements of the competence of the general meeting of owners of premises in an apartment building can be characterized as organizational and property-legal.

Organizational ones should include determining the main directions for managing common property in an apartment building, including the choice of management method, management organization, making decisions on the creation and liquidation of a homeowners’ association, the timing and procedure for holding annual general meetings of such owners, etc.

The property and legal components of the competence of the general meeting of owners of premises in an apartment building include making decisions on the procedure for use, within established limits - on the disposal of common property in an apartment building, on establishing fees for services and work on managing an apartment building, on the maintenance and current repairs of common property in an apartment building, the amount of payment for the costs of major repairs of an apartment building, on determining the terms of the management agreement for an apartment building, etc.

8. Housing Code The Russian Federation allocates the exclusive competence of the general meeting of owners of premises in an apartment building. In particular, reference to such competence is contained in.

Exclusivity is manifested in the fact that decisions on certain issues referred to the RF Housing Code within the competence of the general meeting of owners of premises in an apartment building cannot be made by another body or person (general meeting of members of a homeowners association, the board of such a partnership, management organization, etc.) .

If, on some issues of the competence of the general meeting of owners of premises in an apartment building, the Housing Code of the Russian Federation provides for the possibility of decisions being made by another body, for example, a general meeting of members of a partnership as the highest management body of such a partnership in terms of making a decision on leasing or transferring other rights to common property in an apartment building house, then decisions on such issues as the choice of method of managing an apartment building and the creation of a homeowners’ association can only be made by a general meeting of owners of premises in the apartment building.

The general thing that is typical for issues of the exclusive competence of the meeting is the fundamental nature of these issues, the long-term validity of decisions made on them, and the impossibility of resolving them in a different manner without prejudice to the interests of the owners.

9. The commented article 44 of the Housing Code of the Russian Federation directly determines the list of issues within the competence of the general meeting of owners of premises in an apartment building. At the same time, this list is essentially closed, since, despite the fact that not all issues of the specified competence are named in it, others can only be provided for by the Housing Code of the Russian Federation.

10. Clause 1 of Part 2 of the commented article refers to the competence of the general meeting of owners of premises in an apartment building to make decisions on the reconstruction of an apartment building (including its expansion or superstructure), the construction of outbuildings and other buildings, structures, structures, and the repair of common property in an apartment building.

11. Currently, the Housing Code of the Russian Federation directly stipulates that a decision on the reconstruction, repair of an apartment building, or its re-equipment can only be made by the owners of the premises in the apartment building at their general meeting.

The imperative nature of this norm makes it impossible to freely interpret it and make decisions on these issues by persons other than the said owners. Moreover, if the planned reconstruction of an apartment building will lead to a reduction in the size of the common property in this building, then, taking into account the decision of the general meeting of owners of premises in this building, it must be adopted unanimously by all indicated owners or unanimously by all owners participating in the meeting, with preliminary before holding this general meeting, obtaining consent in writing from the owners not participating in the meeting for such reconstruction (see commentary to Articles 36 and 40 of the Housing Code). This also applies to cases when one of the co-owners, without the permission of the others, reconstructs the common property in an apartment building, especially if this leads to a decrease in this property. Other co-owners have the right to demand that the common property be restored to its previous condition. The corresponding requirement can be stated in accordance with Art. 304 Civil Code of the Russian Federation.

If any of the owners of premises in an apartment building is deprived of the opportunity to use some part of the common property, including access to it (for example, to the attic of the house), i.e. deprived of possession, then he has the right to file a claim to recover the thing (Article 301 of the Civil Code). Such a claim can be brought against any of the owners of premises in a given house, if he owns this part of the property, or against third parties. Moreover, if a vindication claim is filed against a third party (illegal owner), then it is considered to be filed in the interests of all owners of premises in such a house. The satisfaction of this claim does not prejudge the issue of the order of use of the common property, but only ensures that the plaintiff obtains possession of the common property, for example, gives the right of passage to the attic.

12. The competence of the general meeting of owners of premises in an apartment building regarding the possibility of making decisions on the construction of outbuildings, other buildings, structures and structures is rather ambiguously formulated in paragraph 1 of part 2 of the commented article 44 of the Housing Code of Russia. The ambiguity is manifested in the fact that, firstly, it is not simultaneously specified on which land plot such construction will be carried out, and, secondly, the purpose of the named objects is not indicated.

At first glance, it may seem that the general meeting of owners of premises in an apartment building has the right to make a decision, for example, on the construction of an office building or other apartment building on a plot of land that does not belong to the common property in such a building.

However, we should not forget that in accordance with Part 1 of the commented article, the general meeting of owners of premises in an apartment building is its governing body - a form of coordinating their wills and making decisions on the management of common property in a given building, and the nature of the competence of this meeting is based on the regime of law ownership of these owners to the named property.

Accordingly, in this case we can talk about making decisions on the construction of outbuildings, buildings, structures, structures only within the framework of the formation and improvement of the parameters of common property in an apartment building.

In accordance with this, the common property in an apartment building includes, in particular, the land plot on which the house is located, with elements of landscaping and improvement, as well as objects located on the specified land plot and intended for the maintenance, operation and improvement of this house. Therefore, the adoption of a decision by the general meeting of owners of premises in an apartment building in terms of the competence of this meeting under consideration can be conditioned by the construction only within the established boundaries of the land plot that is part of the common property in the specified building, and only those outbuildings, buildings, structures, structures that will are intended for maintenance, operation and improvement of this house.

13. Clause 2 of Part 2 of the commented Article 44 of the Housing Code of the Russian Federation includes within the competence of the general meeting of owners of premises in an apartment building issues related to making decisions on the limits of use of the land plot on which the apartment building is located, including the introduction of restrictions on the use of this plot .

This competence of the general meeting of owners of premises in an apartment building is determined by the fact that, in contrast to the previously effective legislation, the Housing Code of the Russian Federation classified the land plot on which the apartment building is located, with elements of landscaping and landscaping, as the common property of the owners of premises in the apartment building (see commentary to Art. . 36 ZhK). At the same time, in accordance with Art. 16 of the Introductory Law to the Housing Code of the Russian Federation in the existing development of settlements, the land plot on which the apartment building and other real estate objects included in such a house are located is the common shared property of the owners of the premises in the apartment building; This article regulates two cases: when the land plot has already been formed at the time of entry into force of the RF Housing Code and when its formation is required. In the first case, the land plot passes free of charge into the common shared ownership of the owners of premises in an apartment building by virtue of the law. In the second case, on the basis of any person authorized by the said meeting has the right to apply to the authorities state power or local authorities with an application for the formation of a land plot on which an apartment building is located. From the moment the land plot is formed and its state cadastral registration is carried out, such a plot also passes free of charge into the common shared ownership of the owners of premises in an apartment building.

The named owners have the right to exercise their powers to own, use and dispose of such a plot within the limits established by law, including the Housing Code of the Russian Federation, regarding restrictions on the regime for disposing of common property in an apartment building.

14. Articles 6 and 11.1 of the Land Code of the Russian Federation define a land plot as an object of land relations - a part of the earth's surface, the boundaries of which are determined in accordance with federal laws. According to paragraph 2 of Art. 261 of the Civil Code of the Russian Federation, the right of ownership of a land plot extends to the surface (soil) layer located within the boundaries of this plot, water bodies, plants.

In relation to land plots, state cadastral registration is carried out in accordance with the procedure established by the Real Estate Cadastre Law. State cadastral registration of real estate recognizes the actions of the authorized body to enter information about real estate into the state real estate cadastre, which confirms the existence of such real estate with characteristics that make it possible to define this property as an individually defined thing.

The Town Planning Code of the Russian Federation, in order to determine the procedure for establishing boundaries and types of permitted use of land plots in settlements, provides for the adoption of town planning regulations (types of permitted use of land plots established within the boundaries of the corresponding territorial zone, as well as everything that is located above and below the surface of land plots and is used in the process of their development and subsequent operation of capital construction projects, the maximum (minimum and (or) maximum) sizes of land plots and limit parameters permitted construction, reconstruction of capital construction projects, as well as restrictions on the use of land plots and capital construction projects) (Article 1).

The Housing Code of the Russian Federation, in turn, establishes that the boundaries and size of the land plot on which the apartment building is located are determined in accordance with the requirements of land legislation and legislation on urban planning activities (clause 4, part 1, article 36).

15. The right to use a land plot as an element of the content of property rights means the possibility, secured by law, of the economic exploitation of such a plot by extracting its useful properties.

Such properties for the owners of premises in an apartment building are, first of all, the possibility of placing on the land plot they own (above or below the surface) landscaping elements and objects intended for the maintenance, operation and improvement of such a house, as well as the establishment of restrictions on the use of this plot by other persons. Therefore, the limits of use of a land plot mean the establishment of modes of use as in separate parts such a plot, and the plot as a whole, determining the purpose of specific areas of the land plot, establishing restrictions on the use of the land plot by other persons, etc. In particular, a situation often arises when one group of owners in an apartment building is interested in placing parking for their vehicles, another - in allocating a larger area for playgrounds, the third - in planting trees and shrubs, the fourth - in erecting a fence around the house and limiting free access to the site for persons not related to the house. All these and other issues related to the limits of use of a land plot can be resolved by making decisions by a general meeting of owners of premises in an apartment building.

16. Clause 3 of Part 2 of the commented article includes the competence of the general meeting of owners of premises in an apartment building to make decisions on the transfer for use of common property in an apartment building.

The exercise of powers to use property, including those in common ownership, represents the implementation of one of the elements that make up the content of property rights. Since the property is in common shared ownership, the decision to transfer it for use falls within the competence of the general meeting of owners of premises in an apartment building.

Touching upon the issue of subjects of law to whom individual objects of common property in an apartment building can be transferred for use, it should be noted that, within its competence, the said general meeting has the right to decide the issue of transferring this property for use to persons both from among the owners of this common property and and from among any other persons. The subject composition may be taken into account when establishing the amount of compensation for property provided for use. Accordingly, if any property from the common property is provided for use by one of the participants in the common property, then the size of his share in the common property in a given house can be taken into account when establishing the specified amount of compensation.

17. It is quite obvious that, although clause 3 of part 2 of the commented article 44 of the Housing Code of the Russian Federation provides for the possibility of transferring for use “common property in an apartment building,” this does not mean the possibility of transferring the entire composition of such common property, since this transfer will violate legal regime use of the main property in an apartment building - residential and non-residential premises. At the same time, Part 4 of Art. 36 of the Housing Code of the Russian Federation directly provides for the possibility of transferring for use to other persons precisely the objects of common property in an apartment building.

Thus, the general meeting of owners of premises in an apartment building, exercising the competence provided for in paragraph 3 of part 2 of the commented article, resolves issues related to the provision for use of specific objects of common property of owners of premises in an apartment building.

At the same time, it should be taken into account that not all parts of the common property, due to their functional purpose may be provided for use. Objects such as entrances, elevator and ventilation shafts, systems and technical metering devices, flights of stairs and sites and other similar objects that are inextricably linked with the life support systems of the entire apartment building and constantly provide functional purpose residential and non-residential premises in this house cannot be provided for use. Other objects, for example attic spaces, basements, land plots, etc., may be provided for use if this does not lead to infringement of the rights and legitimate interests of the owners of premises in an apartment building or disruption of the operation of such a house.

18. Practice shows that, despite the fact that even before the entry into force of the Housing Code of the Russian Federation, many elements of an apartment building were classified by the Civil Code of the Russian Federation (Article 290) as objects of the common property of the building, such objects were transferred by city administrations for use to third parties without the participation of the owners of these objects.

The placement of outdoor advertising on the walls and roofs of apartment buildings has become quite widespread. In force until July 1, 2006, Federal Law of July 18, 1995 N 108-FZ “On Advertising” provided that the placement of advertising, including on buildings, structures, and other objects, and the determination of the amount and procedure for paying fees for advertising placement are carried out on the basis of an agreement with the owner or with a person who has proprietary rights to the specified objects, subject to permission from the relevant local government body. Federal Law No. 38-FZ of March 13, 2006 “On Advertising” also provides that the installation and operation of an advertising structure is carried out by its owner under an agreement with the owner of the land plot, building or other real estate to which the advertising structure is attached, or with a person , authorized owner of such property.
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NW RF. 1995. N 30. Art. 2864.

NW RF. 2006. N 12. Art. 1232.

At the same time, local government bodies and state authorities of such subjects of the Federation as the federal cities of Moscow and St. Petersburg not only issued permits, but also entered into agreements for the placement of outdoor advertising without taking into account the provisions of both the previously existing and the newer ones. Federal laws and the Civil Code of the Russian Federation (Article 247), i.e. without the permission of the copyright holders of advertising locations.
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Thus, in some cities, authorized bodies made decisions obliging advertisers and advertising producers to enter into contracts for advertising not with the owners of common property in apartment buildings that are used for advertising, but with the city authorized body or with one created by it for these purposes unitary enterprise. At the same time, they introduced such non-legal concepts as “advertising space”, “advertising space”, which belong to them by right of ownership. For example, Decree of the Moscow City Government dated January 22, 2002 N 41-PP “On the development prospects and rules for the placement of outdoor advertising, information and city design” stipulated that the placement of outdoor advertising and information is carried out on the basis of a distribution permit outdoor advertising, an agreement with the Moscow Advertising, Information and Design Committee, if the amount of payment under the agreement exceeds 2 million rubles per year, or with the state unitary enterprise of Moscow “City Advertising and Information”, if the amount of payment under the agreement does not exceed 2 million rubles per year. At the same time, when the question arises about the need to coordinate the placement of outdoor advertising on the wall or roof of an apartment building with the citizens living in this building and owning the apartments as property rights, the said Committee obliges to coordinate such placement only with the directorate of the single customer, replacing the decision of the owners on the provision of the object common property in an apartment building for use by the decision of this organization as balance holder. Thus, this Committee unlawfully considered the so-called balance holder ( service organization) as the sole owner of an apartment building.

The Housing Code of the Russian Federation directly provides that a decision on the transfer of common property in an apartment building for use can be made only by the owners of the premises in the apartment building at their general meeting. Decisions of other bodies and persons cannot replace the decision of such a general meeting. At the same time, the provision by owners for a fee of individual structural elements of apartment buildings for the purpose of using them for advertising, communication equipment, etc. can serve as an additional financial source for maintaining the common property of an apartment building.

At the same time, the continued numerous and widespread violations of the rights of owners of premises in apartment buildings regarding the placement of advertising served as the basis for introducing additional changes into legislation, including the commented article. Now the competence of the general meeting of owners of premises in an apartment building directly includes making decisions on concluding agreements for the installation and operation of advertising structures. At the same time, clause 3.1, part 2 of the commented article, the competence of the said meeting includes the issue of determining the circle of persons who, on behalf of the owners of premises in an apartment building, are authorized to conclude agreements on the use of the common property of the owners of premises in an apartment building (including agreements for the installation and operation of advertising structures) on the terms determined by the decision of the general meeting. The document confirming the consent of these owners to install and operate an advertising structure is the minutes of the general meeting of such owners.
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Changes clarifying the competence of the general meeting in matters of decisions on advertising placement by owners of premises in apartment buildings came into force on September 29, 2009.

See: clause 2, part 11, art. 19 of the Federal Law of March 13, 2006 N 38-FZ “On Advertising” // SZ RF. 2006. N 12. Art. 1232.

19. Clause 4 of Part 2 of the commented Article 44 of the Housing Code of the Russian Federation includes within the competence of the general meeting of owners of premises in an apartment building the issue related to the choice of method of managing an apartment building.

The general meeting of owners of premises in an apartment building, for all its importance as the only governing body of such a building and as a form of expression of the will of these owners, is still not a flexible enough tool for managing all current activities in managing this building. In this regard, it obliges the owners of premises in an apartment building to choose at their general meeting how to manage such a building. At the same time, the Housing Code of the Russian Federation provides for the possibility of choosing one of several methods of managing an apartment building: direct management, management of a homeowners’ association or a housing cooperative or other specialized consumer cooperative created to meet the housing needs of citizens in accordance with the federal law on such a cooperative, or management managing organization (see commentary to articles Section VIII of the LC).

The choice of management method does not mean the termination of the general meeting of owners of premises in an apartment building as the governing body of this building or the loss of its powers. Part 1 of the commented article does not provide for any exceptions in this case. In addition, an annual general meeting must be held accordingly. At the same time, the imperative nature of this norm also does not depend on the chosen method of management.

20. It is necessary to note that part 2 of the commented article has been supplemented with a new clause - clause 4.1, in connection with which the requirements for voting are “delimited” when the general meeting decides on major repairs and on current repairs of common property in an apartment building. If in order to resolve the issue of major repairs it is necessary to obtain a majority of at least 2/3 votes from the total number of votes of the owners of premises in an apartment building, then the issue of routine repairs of common property in an apartment building is adopted by a majority vote of the total number of votes of the owners of premises taking part in this meeting in an apartment building.

21. If a direct method of management is chosen, the general meeting of owners of premises in an apartment building continues to exercise its powers as the management body of the apartment building.

When choosing a method for managing an apartment building by a homeowners' association or housing cooperative, the general meeting of owners of premises in the apartment building entrusts another subject of law with the exercise of part of its powers. It should be borne in mind that the specified management body of an apartment building does not transfer its powers (they remain with it), but the ability to implement them. Such a transfer is a method of exercising the powers of the named management body of an apartment building, and not a method of their alienation, in which this body would lose these powers. In this case, it should be remembered that the direct holder of the right to manage an apartment building is the owner of the premises in this building and his right to manage the apartment building follows from his ownership of the premises in this building. Since each such owner is only the owner of a share in the ownership of the common property of the house (Article 289 of the Civil Code), then, as already indicated, there is an objective need for collective decision-making on issues affecting common interests. Such a collective body is the general meeting of these owners, therefore it is the collective of owners that has full rights to manage their property (the common property of an apartment building). Other persons, such as a homeowners' association or a housing cooperative, receive the opportunity to exercise certain powers to manage an apartment building from the owners of the premises in this building based on a decision of the general meeting of owners. This principle underlies the concept of managing an apartment building.

Owners of premises in an apartment building, choosing a method of managing their home with vesting another subject of law with a certain part of their powers to manage it, essentially undertake the obligation to refrain from active actions that impede the execution of these powers.

22. Clause 5 of part 2 of the commented article provides for the possibility of referring to the competence of the general meeting of owners of premises in an apartment building and other issues directly assigned to the competence of the said management body of the apartment building by the Housing Code of the Russian Federation. In particular, the Housing Code of the Russian Federation includes the following issues:

- establishing the timing, procedure for holding an annual general meeting of owners of premises in an apartment building and the procedure for notifying these owners about the decisions made by them, determining the method of delivery of the message about the general meeting (see commentary to Article 45 of the Housing Code);

— making decisions on the creation of a homeowners’ association (see.

1. The general meeting of owners of premises in an apartment building is the management body of the apartment building. A general meeting of owners of premises in an apartment building is held for the purpose of managing the apartment building by discussing agenda items and making decisions on issues put to vote.

1.1. Persons who have 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, have the right to participate in general meetings of owners of premises in an apartment building and make decisions on issues referred by this Code to the competence of the general meeting of owners of premises in an apartment building, in the manner prescribed by this Code, within a year from the date of issue of permission to put the apartment building into operation.

2. The competence of the general meeting of owners of premises in an apartment building includes:

1) making decisions on the reconstruction of an apartment building (including its expansion or superstructure), construction of outbuildings and other buildings, structures, structures, major repairs of common property in an apartment building, on the use of the capital repair fund, on reconstruction and (or) redevelopment of premises that are part of the common property in an apartment building;

1.1) making decisions on choosing a method for forming a capital repair fund, choosing a person authorized to open a special account in a Russian credit institution, and performing transactions with funds located in a special account;

2) making decisions on the limits of use of the land plot on which the apartment building is located, including the introduction of restrictions on its use, as well as on concluding an agreement on the establishment of an easement, an agreement on the implementation of a public easement in relation to the land plot related to the common property in the apartment building ;

3.1) making decisions on identifying persons who, on behalf of the owners of premises in an apartment building, are authorized to conclude agreements on the use of the common property of the owners of premises in an apartment building (including agreements for the installation and operation of advertising structures), to submit documents for approval of reconstruction and ( or) redevelopment of premises that are part of the common property in an apartment building, for the conclusion of an agreement on the establishment of an easement, an agreement on the implementation of a public easement in relation to a land plot related to the common property of the owners of premises in an apartment building, and on the persons authorized to sign these agreements , as well as the procedure for receiving funds provided for by these agreements on the terms determined by the decision of the general meeting;

3.2) making decisions on the use of the system or other information systems when holding a general meeting of owners of premises in an apartment building in the form of absentee voting;

4) choosing a method of managing an apartment building;

4.1) making decisions on current repairs of common property in an apartment building;

4.2) making a decision to grant the council of an apartment building the authority to make decisions on the current repairs of common property in an apartment building;

4.3) making a decision to vest the chairman of the council of an apartment building with the authority to make decisions on issues not specified in Part 5 of this Code, with the exception of the powers falling within the competence of the general meeting of owners of premises in an apartment building;

4.4) making a decision on the conclusion by the owners of premises in an apartment building, acting on their own behalf, in the manner established by this Code, respectively, of an agreement for cold and hot water supply, sewerage, electricity supply, gas supply (including the supply of domestic gas in cylinders), heating (heat supply , including the supply of solid fuel in the presence of stove heating) (hereinafter also referred to as an agreement containing provisions on the provision of municipal services), contracts for the provision of services for the management of municipal solid waste with a resource supplying organization, a regional operator for the management of municipal solid waste;

4.5) making a decision on consent to transfer residential premises to non-residential premises;

5) other issues referred by this Code to the competence of the general meeting of owners of premises in an apartment building.

The provisions of Article 44 of the RF LC are used in the following articles:

The procedure for holding a general meeting of premises owners in an apartment building
3. The general meeting of owners of premises in an apartment building is valid (has a quorum) if the owners of premises in this building or their representatives with more than fifty percent of the votes of the total number of votes took part in it, with the exception of the general meeting of owners of premises in an apartment building, carried out on the issue specified in clause 4.5 of part 2 of article 44 of the RF Housing Code. If there is no quorum for holding an annual general meeting of owners of premises in an apartment building, a repeat general meeting of owners of premises in an apartment building must be held. A general meeting of owners of premises in an apartment building, held on the issue specified in clause 4.5 of part 2 of Article 44 of the Housing Code of the Russian Federation, is competent (has a quorum):
Decisions of the general meeting of owners of premises in an apartment building
1. Decisions of the general meeting of owners of premises in an apartment building on issues put to vote are adopted by a majority vote of the total number of votes of the owners of premises in an apartment building participating in this meeting, with the exception of the decisions provided for in paragraphs 1.1, 4.2 of part 2 of Article 44 of the Housing Code of the Russian Federation, which are adopted by more than fifty percent of the votes of the total number of votes of the owners of premises in an apartment building, and decisions provided for in paragraphs 1, 1.1-1, 1.2, 2, 3, 3.1, 4.3 of part 2 of Article 44 of the Housing Code of the Russian Federation, which are adopted by a majority of at least two-thirds votes from the total number of votes of the owners of premises in an apartment building, as well as the decision provided for in paragraph 4.5 ...
General meeting of owners of premises in an apartment building in the form of absentee voting using the system
1. If the general meeting of owners of premises in an apartment building makes decisions provided for in paragraphs 3.2 - 3.4 of part 2 of Article 44 of the Housing Code of the Russian Federation, the system is used to post messages about the holding of a general meeting of owners of premises in an apartment building, decisions adopted by the general meeting of owners of premises in an apartment building house, voting results, for storing minutes of general meetings of owners of premises in an apartment building on the agenda of the general meeting of owners of premises in an apartment building, for posting electronic images of decisions of owners of premises in an apartment building on issues put to vote, as well as for voting on issues on the agenda of the general meeting of owners of premises in an apartment building. Open article
Special account
6. Money held in a special account cannot be recovered for the obligations of the owner of this account, with the exception of obligations arising from agreements concluded on the basis of decisions of the general meeting of owners of premises in an apartment building, specified in clause 1.2 of part 2 of Article 44 Housing Code of the Russian Federation, as well as contracts for the provision of services and (or) performance of work on major repairs of common property in this apartment building, concluded on the basis of a decision of the general meeting of owners of premises in the apartment building to carry out major repairs or on other legal grounds.
Special deposit
4. Money placed on a special deposit cannot be recovered for the obligations of the owner of the special account, with the exception of obligations arising from agreements concluded on the basis of decisions of the general meeting of owners of premises in an apartment building, specified in paragraphs 1.1-1 and 1.2 Part 2 of Article 44 of the Housing Code of the Russian Federation, as well as contracts for the provision of services and (or) performance of work on major repairs of common property in this apartment building, concluded on the basis of decisions of the general meeting of owners of premises in the apartment building on carrying out major repairs or on other legal grounds.

2. The competence of the general meeting of owners of premises in an apartment building includes:

Information about changes:

Federal Law of December 25, 2012 N 271-FZ, part 2 of article 44 of this Code was supplemented with clause 1.2

Information about changes:

Part 2 was supplemented by clause 2.1 from December 31, 2017 - Federal Law of December 20, 2017 N 416-FZ

Information about changes:

Federal Law of July 21, 2014 N 263-FZ, part 2 of article 44 of this Code was supplemented with clause 3.2

3.2) making decisions on the use of the system or other information systems when holding a general meeting of owners of premises in an apartment building in the form of absentee voting;

Information about changes:

Federal Law of July 21, 2014 N 263-FZ, part 2 of article 44 of this Code was supplemented with clause 3.3

Information about changes:

Federal Law of July 21, 2014 N 263-FZ, part 2 of article 44 of this Code was supplemented with clause 3.4

Information about changes:

Federal Law of June 29, 2015 N 176-FZ, part 2 of article 44 of this Code was supplemented with clause 3.5

4) choosing a method of managing an apartment building;

4.1) making decisions on current repairs of common property in an apartment building;

Information about changes:

Federal Law of June 29, 2015 N 176-FZ, part 2 of article 44 of this Code was supplemented with clause 4.2

4.2) making a decision to grant the council of an apartment building the authority to make decisions on the current repairs of common property in an apartment building;

Information about changes:

Federal Law of June 29, 2015 N 176-FZ, part 2 of article 44 of this Code was supplemented with clause 4.3

4.3) making a decision to vest the chairman of the council of an apartment building with the authority to make decisions on issues not specified in Part 5 of Article 161.1 of this Code, with the exception of the powers falling within the competence of the general meeting of owners of premises in an apartment building;

Information about changes:

Part 2 was supplemented by clause 4.4 from April 3, 2018 - Federal Law of April 3, 2018 N 59-FZ

4.4) making a decision on the conclusion by the owners of premises in an apartment building, acting on their own behalf, in the manner established by this Code, respectively, of an agreement for cold and hot water supply, sewerage, electricity supply, gas supply (including the supply of domestic gas in cylinders), heating (heat supply , including the supply of solid fuel in the presence of stove heating) (hereinafter also referred to as an agreement containing provisions on the provision of municipal services), contracts for the provision of services for the management of municipal solid waste with a resource supplying organization, a regional operator for the management of municipal solid waste;

Information about changes:

Part 2 was supplemented with clause 4.5 from June 9, 2019 - Federal Law of May 29, 2019 N 116-FZ

4.5) making a decision on consent to transfer residential premises to non-residential premises;

5) other issues referred by this Code to the competence of the general meeting of owners of premises in an apartment building.

Full text of Art. 44 Housing Code of the Russian Federation with comments. New current edition with additions for 2019. Legal advice on Article 44 of the RF Housing Code.

1. The general meeting of owners of premises in an apartment building is the management body of the apartment building. The general meeting of owners of premises in an apartment building is held for the purpose of managing the apartment building by discussing agenda items and making decisions on issues put to vote. (Part as amended, entered into force on June 30, 2015 Federal law dated June 29, 2015 N 176-FZ.

2. The competence of the general meeting of owners of premises in an apartment building includes:
1) making decisions on the reconstruction of an apartment building (including its expansion or superstructure), construction of outbuildings and other buildings, structures, structures, major repairs of common property in an apartment building, on the use of the capital repair fund;
1.1) making decisions on the choice of the method of forming the capital repair fund, the amount of the contribution for capital repairs in terms of its excess over the established minimum amount of the contribution for capital repairs, the minimum amount of the capital repair fund in terms of its excess over the established minimum size of the capital repair fund (in in the event that the law of a constituent entity of the Russian Federation establishes a minimum size of the capital repair fund), the selection of a person authorized to open a special account and carry out transactions with funds located in the special account, a Russian credit organization in which a special account should be opened, a Russian credit organization , in which a special account must be opened; (The clause was additionally included on December 26, 2012 by Federal Law of December 25, 2012 N 271-FZ; as amended by Federal Law of June 29, 2015 N 176 -FZ.

1.2) making decisions on the receipt by a homeowners’ association or a housing construction cooperative, a housing cooperative or another specialized consumer cooperative, a management organization and, in the direct management of an apartment building, by the owners of premises in this building by a person authorized by a decision of the general meeting of such owners, a loan or a loan for capital repair of common property in an apartment building, on determining the essential terms of a credit agreement or loan agreement, on the receipt by these persons of a guarantee, surety for this loan or loan and on the conditions for obtaining the specified guarantee, surety, as well as on repayment at the expense of the capital repair fund of the loan or loan , used to pay for the costs of major repairs of common property in an apartment building, and for the payment of interest for the use of this credit or loan, payment from the capital repair fund for the costs of obtaining the specified guarantees and sureties;
2) making decisions on the limits of use of the land plot on which the apartment building is located, including the introduction of restrictions on its use;
3) making decisions on the use of the common property of the owners of premises in an apartment building by other persons, including the conclusion of contracts for the installation and operation of advertising structures, if for their installation and operation it is intended to use the common property of the owners of premises in an apartment building;
3.1) making decisions on identifying persons who, on behalf of the owners of premises in an apartment building, are authorized to conclude agreements on the use of the common property of the owners of premises in an apartment building (including agreements for the installation and operation of advertising structures) on the terms determined by the decision of the general meeting;
3.2) making decisions on the use of the system or other information systems when holding a general meeting of owners of premises in an apartment building in the form of absentee voting; (The clause was additionally included on July 22, 2014 by Federal Law of July 21, 2014 N 263-FZ)
3.3) making decisions on identifying persons who, on behalf of the owners of premises in an apartment building, are authorized to use the system or other information systems when holding a general meeting of owners of premises in an apartment building in the form of absentee voting (hereinafter referred to as the administrator of the general meeting); (The clause is additionally included with July 22, 2014 Federal Law of July 21, 2014 N 263-FZ)
3.4) making a decision on the procedure for the administrator of the general meeting to receive messages about holding general meetings of owners of premises in an apartment building, decisions of owners of premises in an apartment building on issues put to vote, as well as the duration of voting on issues on the agenda of the general meeting of owners of premises in an apartment building in the form of absentee voting using the system; (The clause was additionally included on July 22, 2014 by Federal Law of July 21, 2014 N 263-FZ)
3.5) making a decision on the procedure for financing expenses associated with convening and organizing a general meeting by the management organization, the board of a homeowners’ association, housing or housing construction cooperative, or other specialized consumer cooperative in accordance with Part 6 of Article 45 of this Code; (The clause is additionally included from June 30, 2015 by Federal Law of June 29, 2015 N 176-FZ)
4) choosing a method of managing an apartment building;
4.1) making decisions on current repairs of common property in an apartment building;
4.2) making a decision to grant the council of an apartment building the authority to make decisions on the current repair of common property in an apartment building; (The clause was additionally included from June 30, 2015 by Federal Law of June 29, 2015 N 176-FZ)
4.3) making a decision to vest the chairman of the council of an apartment building with the authority to make decisions on issues not specified in Part 5 of Article 161.1 of this Code, with the exception of the powers falling within the competence of the general meeting of owners of premises in an apartment building; (The clause was additionally included from June 30, 2015 Federal Law of June 29, 2015 N 176-FZ)
5) other issues referred by this Code to the competence of the general meeting of owners of premises in an apartment building.

Commentary on Article 44

1. The rules established in Art. Art. 44 - 48 of the Code are fundamentally new; they were absent from the LC 1983 and the Fundamentals. At the same time, these articles devoted to the management body of an apartment building are included in Chapter 6 of Section 2 “Ownership and other proprietary rights to residential premises,” which does not seem entirely logical. The corresponding provisions, from our point of view, should have been established in Section 8 of the Code “Management of Apartment Buildings”.

Part 1 of Art. 44 of the Code introduced the concept of “management body of an apartment building”. The general meeting of owners of apartment building premises is recognized as such a body. This provision is formulated in a mandatory norm and does not provide for exceptions. In other words, the specified governing body must operate in all apartment buildings, the premises of which are in state, municipal, or private ownership.

2. A list of issues falling within the competence of the general meeting has been established (Part 2 of Article 44 of the Code). This list is not exhaustive, since the meeting has the right to decide other issues specified in other articles of the Code. Let us draw your attention to the fact that the literal interpretation of the norm established in paragraph 5 of Part 2 of Art. 44, allows us to assert that the general meeting of premises owners is deprived of the right to consider issues that are not directly within its competence by the Code.

For other questions other than those specified in Part 2 of Art. 44, referred by the Code to the competence of the general meeting of owners of premises in an apartment building, include, in particular:
determining the timing and procedure for holding the annual general meeting, as well as the procedure for notifying decisions taken by it (Part 1, Article 45);
determining the procedure for documenting decisions of the general meeting (Part 1, Article 46);
determination of a specific premises in an apartment building in which messages about decisions made by the general meeting and the results of voting on relevant issues are posted (Part 3 of Article 46);
determination of the place or address for storing minutes of general meetings (part 4 of article 46).

It is easy to see that these issues are mainly of a technical, procedural nature and essentially do not add anything to the competence of the general meeting, directly provided for in paragraphs 1 - 4 of Part 2 of Art. 44 of the Code.

Taking this into account, this legal construction does not look entirely convincing. For example, it is quite obvious that in the case of direct management of an apartment building by the owners of premises in such a building (see Article 164 of the Code) general meeting In practice, the indicated owners will need to resolve many other issues, in addition to those directly assigned by the Code to its competence, in particular, issues similar to those resolved by the sole and collegial executive bodies of legal entities. Therefore, from our point of view, the wording of the provisions of clause 5, part 2, art. 44 of the Code requires clarification by introducing appropriate changes into it.

Consultations and comments from lawyers on Article 44 of the RF Housing Code

If you still have questions regarding Article 44 of the RF Housing Code and you want to be sure of the relevance of the information provided, you can consult the lawyers of our website.

You can ask a question by phone or on the website. Initial consultations are held free of charge from 9:00 to 21:00 daily Moscow time. Questions received between 21:00 and 9:00 will be processed the next day.

Do you think you are Russian? Were you born in the USSR and think that you are Russian, Ukrainian, Belarusian? No. This is wrong.

Are you actually Russian, Ukrainian or Belarusian? But do you think that you are a Jew?

Game? Wrong word. The right word"imprinting".

The newborn associates himself with those facial features that he observes immediately after birth. This natural mechanism is characteristic of most living creatures with vision.

Newborns in the USSR saw their mother for a minimum of feeding time during the first few days, and most of the time they saw the faces of the maternity hospital staff. By a strange coincidence, they were (and still are) mostly Jewish. The technique is wild in its essence and effectiveness.

Throughout your childhood, you wondered why you lived surrounded by strangers. The rare Jews on your way could do whatever they wanted with you, because you were drawn to them, and pushed others away. Yes, even now they can.

You cannot fix this - imprinting is one-time and for life. It’s difficult to understand; the instinct took shape when you were still very far from being able to formulate it. From that moment, no words or details were preserved. Only facial features remained in the depths of memory. Those traits that you consider to be your own.

3 comments

System and observer

Let's define a system as an object whose existence is beyond doubt.

An observer of a system is an object that is not part of the system it observes, that is, it determines its existence through factors independent of the system.

The observer, from the point of view of the system, is a source of chaos - both control actions and the consequences of observational measurements that do not have a cause-and-effect relationship with the system.

An internal observer is an object potentially accessible to the system in relation to which inversion of observation and control channels is possible.

An external observer is an object, even potentially unattainable for the system, located beyond the system’s event horizon (spatial and temporal).

Hypothesis No. 1. All-seeing eye

Let's assume that our universe is a system and it has an external observer. Then observational measurements can occur, for example, with the help of “gravitational radiation” penetrating the universe from all sides from the outside. The cross section of the capture of “gravitational radiation” is proportional to the mass of the object, and the projection of the “shadow” from this capture onto another object is perceived as an attractive force. It will be proportional to the product of the masses of the objects and inversely proportional to the distance between them, which determines the density of the “shadow”.

The capture of “gravitational radiation” by an object increases its chaos and is perceived by us as the passage of time. An object opaque to “gravitational radiation”, the capture cross section of which is larger than its geometric size, looks like a black hole inside the universe.

Hypothesis No. 2. Inner Observer

It is possible that our universe is observing itself. For example, using pairs of quantum entangled particles separated in space as standards. Then the space between them is saturated with the probability of the existence of the process that generated these particles, reaching its maximum density at the intersection of the trajectories of these particles. The existence of these particles also means that there is no capture cross section on the trajectories of objects that is large enough to absorb these particles. The remaining assumptions remain the same as for the first hypothesis, except:

Time flow

An outside observation of an object approaching the event horizon of a black hole, if the determining factor of time in the universe is an “external observer,” will slow down exactly twice - the shadow of the black hole will block exactly half of the possible trajectories of “gravitational radiation.” If the determining factor is the “internal observer,” then the shadow will block the entire trajectory of interaction and the flow of time for an object falling into a black hole will completely stop for a view from the outside.

It is also possible that these hypotheses can be combined in one proportion or another.