What is a contract for operational management of property? Are only state and municipal enterprises affected in this case, or is it applicable in private organizations? What is its essence, features, what are the features of implementation in practice?
Legislative regulation
The Civil Code contains the basic provisions on the right of ownership, forms of its implementation. In particular, there is a special article devoted to the operational management of property.
In addition to the Civil Code, issues of managing state and municipal property are governed by instructions and regulations adopted both by the federal government and its individual bodies (the Federal Property Management Agency) and at the regional level.
The Federal Property Management Agency has published a special letter on the disposal of state-owned real estate.
Federal authorities are only entitled to make recommendations regarding property owned by the region or municipalities.
Organizations not related to the state or municipalities are required to adhere exclusively to the provisions of the Civil Code. The application of clauses of other acts, for example, when concluding an agreement on the operational management of property, is possible at the request of the owner.
Arbitrage practice
The Constitutional Court of the Russian Federation and the Armed Forces of the Russian Federation periodically adopt acts affecting the right of operational management and the conclusion of relevant agreements. They serve as a guide when resolving disputes under operational management contracts. The Plenum issued general explanations in 2010 on the protection of property rights and other property rights.
What is the essence of this right
Operational management of property is, first of all, the possession and use of property transferred to a legal entity, and its use. The disposal of property is seriously limited, that is, a ban has been imposed on the sale, gift, pledge, transfer to the authorized capital.
Is the owner entitled to lease the property? The answer depends on what is written in the statutory documents and in the contract with the owner. Transactions with property of this kind are allowed to be concluded with the consent of the representative of the owner.
Additional restrictions are set by the owner using the rules of law and contract. In the case of state or municipal ownership, it is assumed that the property manager may provide additional instructions regarding it outside the norms of the contract.
In judicial practice, the right of the owner to seize property that is used for other purposes, or which is redundant, is noted.
Seizure of property
It is allowed to seize property if:
- it is not used;
- not used for its intended purpose.
The law extends this right to objects fixed by the owner or acquired at the expense of the funds that were allocated to him.
The owner has the right to dispose of the seized values as he sees fit.
Features of the conclusion
If the property is owned by the state or the municipality, then the contract is concluded on the basis of a resolution of the head of the municipality, or another official with authority.
On behalf of the state are representatives of either the Department of Property Relations (if the property belongs to the region) or the territorial administration of the Federal Property Management Agency.
Without their administrative acts, an agreement on the operational management of property is not concluded.If these acts were adopted, but with violations of the law, the contract may subsequently be declared invalid.
What to do with the property of a private organization transferred to management? Owner consent required. In a large company, this includes the consent of the director, as his representative, or even members of the board, depending on the amount of the transaction and other factors. The set of documents and the procedure are determined by the charter or memorandum of association.
Agreement structure
The agreement on the right of operational property management has approximately the following structure:
- information about the parties to the contract;
- list of transferred property, its characteristics;
- information about real estate is taken from the register of rights to immovable objects;
- value of the transferred property;
- a list of rights that a recipient legal entity receives;
- rights and obligations of participants;
- validity period, extension procedure;
- the procedure for amending the text of the agreement;
- conditions for its early termination.
The transfer of real estate entails a change in the status of the land on which the property is located. This includes the unity of the fate of the land and real estate located on it.
The transfer of rights to the site is made out in the same contract or a separate agreement. Registration of transactions is carried out simultaneously.
What documents are attached
An integral part of the contract for the right of operational management of property is an application describing the transferred property, its properties, features. Technical documentation included.
In the case of the transfer of real estate in the application is not necessary, the address and cadastral number is enough.
When signing the contract, an acceptance certificate is compiled. It notes the features, some nuances that may in the future have an impact on the rights of the parties.
State registration
All real estate transactions must be recorded and the agreements under discussion are no exception. An agreement on the transfer of property to operational management after conclusion is subject to registration with the Rosreestr or the cadastral chamber, depending on the structure of bodies in the region.
Evasion or refusal of registration makes the transaction not concluded, and does not give rise to any rights and obligations.
The procedure is carried out in a general manner: the parties submit documents, and Rosreestr officials conduct their verification. Despite the apparent ease of registering transactions with municipal or state real estate, this is not so.
On the contrary, transactions with such objects are checked even more thoroughly. In practice, there are situations when the administration is forced to sue registrars.
To avoid problems, work on the contract for the operational management of municipal property should be entrusted to the lawyers of the local municipal administration. They are well acquainted with the intricacies of such transactions.
Finally
Operational management of property is a type of right to another's property. It is mainly used in the management system of state or municipal property. At the same time, non-state structures are not limited in its use.
The transfer of property is carried out on the basis of the contract, in accordance with the approved form and the whole list of regulatory acts, if we are talking about budget organizations. Private companies are required to be guided only by the Civil Code.