HOA Board: rights and obligations

Partnerships of homeowners (abbreviated as HOA) are unique forms of home management. Their activities are regulated by many regulatory legal acts. The Housing Code can be considered the main document defining the powers and the entire work of HOAs. The general meeting with the HOA board is required to act within the framework of modern legislation, and today in the proposed article we will consider in the most detailed way all that relates to the rights and obligations of the HOA and its board.

What is HOA entitled to do?

In short, it is to carry out work related to the management of the house, that is, to carry out the activity that used to be the focus of the management company (in the form of a commercial organization or housing department).

And now let's take a closer look at the entire scope of activities included in this concept. What exactly do tenants authorize their representatives to in the HOA board elections?

The 137th article of the Housing Code, devoted to the regulation of such issues, reads:

1. HOA has the right to enter into agreements with management and operating companies related to servicing an apartment building and providing the full range of utilities.
2. It has the right to carry out certain works without resorting to the services of the Criminal Code (for example, hiring cleaners for access or organizing independent garbage removal).
3. HOA is engaged in the calculation of income and expenses with the determination of the necessary funds for the maintenance of the house, payment for the activities of contractors, the formation of a reserve fund, as well as those intended for overhaul.

And also?

Other rights of the HOA board include the following:

1. The partnership may conduct settlements under contracts with both individuals and legal entities for the services provided.
2. According to the procedure established by law, the HOA may apply to the bank or to individuals for credit funds.
3. He is responsible for the sale, exchange and leasing of property, including real estate. For example, the HOA has the right to collect fees from entrepreneurs who want to rent office space in the building or for trade.
4. HOA calculates rents based on cost estimates.
5. It also collects this rent from the owners and tenants of the premises of the apartment building.
6. Also among his rights is the adoption of legal measures against persons who owe rent or rent, which must certainly be reflected in the minutes of the meetings of the HOA board.

HOA Charter as the main document

The whole and complete list of the powers possessed by the HOA is required to be listed in the Charter of this organization. This list, for example, may include permission to carry out reconstruction, make changes to the local area in the form of parking equipment for cars, etc. All rights of this organization listed in its Charter cannot conflict with the content of the Housing Code. They can only complement and expand its main provisions in specific situations.

The exercise of the majority of rights by the board of the partnership is carried out in the working order - the rent is calculated, funds are allocated to bank accounts, the protocol of the board of the HOA is kept. These actions are for current work. The observance of the legality of all the mentioned operations is monitored by a special commission, called the audit committee, in the amount of three to four people. Its composition is not among the members of the board or other HOA employees.

If you need to make major changes (for example, to reorganize the structure of the HOA, change the ratio of funds allocated to various funds, and re-equip the building), the board is required to organize a general meeting of all residents with the question put to the vote. The right to carry out the declared activities of the HOA will receive only with the majority of positive votes.

About the features of the HOA

Quite often, in the process of exercising their rights, members of the HOA board have a host of questions related to a number of controversial or problematic topics. Below we give examples of the most relevant of them.

One of the pressing issues is the refusal of the board to issue tenants certificates (on family composition or extended statements) based on rent arrears. Natural question: does the board of the partnership have the right to refuse to issue any certificates to its members in the presence of debt?

This practice is against the law. At the same time, such actions are universally used by HOA authorities with the aim of encouraging residents to cover the debt or part of it. You should be aware that the issuance of the required certificates is considered not a right, but an obligation of the HOA. This also applies to cases when residents have any size of debts for utilities.

Is access to the apartment legal?

Another frequently asked question from the category of problematic ones is about the powers of the chairman or the board of the partnership to enter the apartment and inspect it. Similar situations are not uncommon for a typical HOA board protocol. Our Constitution, as a fundamental law, enshrines the right of any citizen to the inviolability of his own home. In practice, this means that without the permission of the apartment owners, no one is allowed to enter it. The exception applies only to cases where there is a warrant or a threat of terrorist attack or cataclysm (man-made or natural).

In other cases (including in emergency situations, for example, a pipe break), passage into the apartment is possible only with the permission of the tenant. That is why any excuses for the right of access to the room (for checking meters or taking readings, measuring pressure, measuring temperature, etc.) are illegal.

About penalties and fines

Another, no less acute issue is the authority of the HOA in the calculation of interest. The partnership has the right to this in the event that such a function is prescribed in the Charter, which was adopted by the general meeting of residents. This measure refers to the compelled, intended to stimulate the debtors to the early payment of funds for housing.

The procedure by which fines are awarded is strictly regulated and prescribed in the Charter. In this case, one should focus on the provisions of the Tax Code of the Russian Federation relating to the upper limits of penalties. For example, it is forbidden to charge a fine of more than 1/30 of the refinancing rate for each overdue payment day.

Are we obligated to sign an agreement with the HOA?

Sometimes residents may be outraged by the proposal by the HOA to sign a service agreement. Should such agreements be concluded and are the HOAs obliged to do this? This practice is absolutely normal. The right of homeowners associations to conclude contracts, as well as the provision governing the calculation of payments, is prescribed in article 137 of the RF Housing Code.

In the presence of such signed agreements, the board has the right to conclude on behalf of the residents all kinds of transactions with utility providers. If there is no agreement between the owner and the HOA, the residents will have to conclude the necessary agreements independently at the representative office of the operating company.

Attention: violation!

The next problem, which often occurs in apartment buildings, is posting for public display by the HOA board a list of debtors. In this case, the indignation of the residents is quite justified and logical.By law (we are talking about personal data), it is forbidden to directly disclose such information. The board does not have the right to publish any data on residents without their written consent. This applies not only to addresses, full name and passport data of residents, but also to the size of the existing debt.

Such lists can be compiled by the board for internal use and taking measures to influence debtors. They should be stored indoors in a safe. In the case of such illegal publication, the debtor has the full right to appeal to the court for compensation for moral damage. The maximum possible action for the HOA in this case is to post an announcement of the accumulated total communal debt and a warning about an upcoming appeal to the court.

Responsibilities of the Board of HOAs

Their list is given in the articles of the Civil Code of the Russian Federation No. 148-149. What exactly does the HOA board owe to the apartment owners who choose it?

1. Comply with legal regulations and the provisions of the Charter.
2. Supervise the residents' performance of their own duties regarding the maintenance of the facility.
3. Directly manage an apartment building or control the company that carries out this management.
4. Conclude contracts with utility providers and subcontractors.
5. Engage in contracts regarding the repair and maintenance of the building.
6. Keep lists of residents who are members of the partnership.
7. Engage in accounting, make estimates of income and expenses, charge rents.
8. Keep records and issue the necessary certificates to residents - members of the HOA.
9. To hold general meetings of residents with the provision of reports from the HOA board on the work done.
10. To control the activities of the chairman of the partnership.

What are the immediate responsibilities of the chairman of the HOA?

1. He hires and dismisses the necessary staff, gives orders to other HOA officials.
2. Within its own powers, acts on behalf of the partnership, without resorting to prior notification of all its members.
3. Submits any document developed by him to the decision of the meeting of residents.

About liability for non-fulfillment of duties

Such a measure is not registered either in the LC or in the Civil Code of the Russian Federation. But this does not mean that it is impossible to hold violators accountable. This issue, as a rule, is also regulated by the Charter of the partnership, which provides for certain types of punishment for specific misconduct. In a more general case, there may be a note about actions under existing law.

The general civil liability is in case of the following offenses:

1. Negligence (for example, the lack of notification by a member of the HOA board of tenants in due time about the upcoming meeting).
2. Fraud - this may be a false testimony of metering devices or documents relating to the owners of the premises.
3. Rastraty or appropriation of funds of owners - sometimes there are cases of malicious unlawful distribution of funds of a general or reserve fund.
4. Deception of the owners, including the entire meeting.
5. Official forgery.
6. Excess of own authority (this includes the above examples with hanging lists of residents, etc.).

Any member of the partnership, including representatives of the HOA board and the chairman himself, is obliged to bear financial responsibility for his own actions. In the event of damage to common property through the fault of the owner (for example, due to flooding), the latter is obliged to compensate it. A special act is drawn up to determine the extent of such damage. Assessment, if necessary, is carried out with the involvement of professionals. Moreover, a description of a number of specific situations relating to offenses may be contained in the charter of the HOA.

Powers of the Board of HOAs

What kind of powers are we talking about? The task of the partnership management is to engage in its direct activities. The entire list of powers necessary for this is regulated by the same Housing Code (its article 147). In the Charter of the organization must necessarily distinguish between actions falling within the competence of the board and the general meeting of residents. That is, there should be clear indications that it is the chairman and his deputies who can decide at a meeting of the HOA board without resorting to prior notification of residents.

In most cases, these are the powers of the board:

1. The direct management of the partnership with the appointment of specific performers for specific work and the formation of HOA staff.
2. Concluding public service agreements on behalf of homeowners.
3. Fundraising for the repair and maintenance of an apartment building.
4. Conducting paperwork with the issuance of all necessary papers and certificates.
5. Conducting banking and accounting with the transfer of funds under contracts for the remuneration of contractors.
6. Conducting general meetings of residents with filling out the relevant protocol.
7. Protection in court of the interests of the members of the partnership.
8. In a situation of non-payment by residents of debts for communal services - appeal to official authorities (from the city administration to the court and prosecutors).

findings

This shows that the entire list of powers of the HOA board is determined by its direct functions arising from the main purpose of the partnership - the maintenance of an apartment building.

In addition to the above, the HOA authority may include a number of additional ones, which must certainly be fixed in the Charter of the partnership. We can talk about arranging the adjacent territory, self-servicing the building, collecting rents from people who are the tenants of the commercial and residential premises of the house, as well as disposing of common house property, which includes cellars, elevators, etc.

The Housing Code confirms that both the rights and obligations of the HOA are inextricably linked with their functions and arise from the task of maintaining the apartment building and all property related to it in full order.