Trust management of property. Transaction management What property can be transferred to trust management

I don't know what you expect to see under this name - maybe something like that

If so, then you can get upset, Planfix miracles are different 🙂

Philosophical moment
I don’t want to philosophize for a long time about the misunderstanding of the term CRM, which is common in the market, but I’ll have to say briefly:

• in the classical sense of CRM, this is Customer Relationship Management, that is, a set of long-term measures that should bind a client to you and make his work with your company a continuous pleasant dream;
• in our country, CRM is usually understood as anything: from a notebook with clients' birthdays to an enterprise management system, taking into account warehouse balances, accounting and production support;
• but most often you come across a definition of CRM like “well, such a thing, so that customers from a landing page or by phone are received at the entrance and salespeople sell our goods / services to them.”

Today we will talk about this “thing for salespeople”, which, in my opinion, is more correct to consider only a part of CRM.

Configuration
Separately, I would like to note that today is the first time that I suggest that you do not look at the pictures in the blog and the description of the settings, but install the “Deal Management” configuration in your account and feel it with your hands:

• this can be done by the account owner in Account Management;
• after the end of the experiments, the configuration can be deleted (ibid.), so as not to clog the account with unnecessary settings;
• you can also register a separate account and experiment with the configuration in it so as not to scare your colleagues;
• owners of free accounts, in principle, only have the option of a new account, tk. the configuration contains a lot of entities and some of them will not fit in the limits of the free account (and in the new account within the trial period there are no such limits).

I also want to note right away that the “Deal Management” configuration is not:

• the most correct;
• the only one possible;
• complete and unchanged;
• and many more others.

Go
By itself, work with the “Deal Management” configuration is described in the instructions, but I will duplicate the general outline for you here.

Basically, all the work takes place in the “Deal Management” scheduler, a fragment of which is shown in the screenshot:

The task of the salesperson is to conduct a transaction from the first column, step by step, to a successful completion.

The first column contains contacts with whom no deals have been made yet. How they get there is up to you:

• you can enter them manually directly in the column;
• can be imported from available sources;
• contacts can get into the system from landing pages, mail, etc. - but then they will most likely appear immediately with the task-deal and will not be highlighted in this column, but will immediately appear in the next one.

The following columns characterize various stages deals. They display deal cards with basic information + the next scheduled tasks (phone call, prepare an offer, meet, etc.). Here is what the card looks like in the standard version:

Sales Officer:

• drags a contact to the column with deals and creates a potential deal for this contact;
• plans the next activity for this transaction;
• performs this activity at the scheduled time;
• if it leads to the promotion of the deal to the next stage, it drags the deal card to the corresponding column;
• if not, it fixes the result of the activity in the transaction (“They called, they ask for two more days to think”) and plans the next one (“Call on such and such a date”);
• and so on for all transactions, until the victorious (or not so) end.

As an additional tool for planning the work of a salesperson, you can use the standard "Daily Planner", in which he sees the activities planned for today (or any other day), can distribute them by time during the day, etc. Well, the rest of the Planfix functionality is also at hand if he needs it - notifications, Chronicle, task filters, and so on.

The manager can see all transactions of all employees in the "Manage transactions" scheduler. We have also prepared several reports that will help you get statistics on transactions and employees in different sections for any period - you will see them in the "Deal Management" report group, which will appear in your account after setting up the configuration.

As I mentioned above, the configuration can be customized by you according to the company's conditions - there is nothing unchanged in it, it's just a ready-made bundle of settings made by standard Planfix tools. I could describe them to you here in the form of screenshots and explanations and you would repeat them for yourself - but now there is no need for this, you get these settings in a few clicks by installing a ready-made configuration.

Let's move on to the conclusion. But rather - to the beginning of the discussion 🙂

• in full accordance with, we didn’t have to use any additional entities to manage transactions - everything was done on the basis of standard tools: custom statuses and fields, task and report templates;
• despite the fact that the standard configuration does not fit into a free account due to restrictions, you can squeeze it in there if you slightly reduce the number of stages of the transaction (well, you may need to fake some other little things);
• working on such configurations helps us to see by example what functionality is missing and how it should work in order to solve specific problems - for example, I don’t like the current funnel that turned out in the reports, and we agreed on what we need to do to make it more informative. The changes that we have planned will help solve not only this particular, but also many other tasks that have nothing to do with deal management;
• we expect you to get involved in this work and provide us with new suggestions, the implementation of which will help make your job of managing deals in Planfix more convenient. And not only her, in general.

Article 1012

1. Under a property trust management agreement, one party (the founder of the management) transfers the property to the other party (the trust manager) for a certain period of time in trust management, and the other party undertakes to manage this property in the interests of the founder of the management or the person indicated by him (the beneficiary).

The transfer of property for trust management does not entail the transfer of ownership of it to the trustee.

2. When carrying out trust management of property, the trust manager shall have the right to perform any legal and actual actions in relation to this property in accordance with the trust management agreement in the interests of the beneficiary.

The law or the agreement may provide for restrictions on certain actions for trust management of property.

3. Transactions with the property transferred to trust management are made by the trust manager on his own behalf, indicating that he acts as such a manager. This condition is considered to be met if, when performing actions that do not require written registration, the other party is informed of their commission by the trustee in this capacity, and in written documents, after the name or name of the trustee, a note "D.U." is made.

In the absence of an indication of the action of the trustee in this capacity, the trustee is obliged to third parties personally and is liable to them only with the property belonging to him.

1. An analysis of the text of the article, as well as specific types of transfer of property into trust management, allows us to highlight a number of distinctive features of the agreement:

a) this is a special agreement on the management of the property of the owner in the interests of the owner himself or another person named by him - the beneficiary. Although trust management under the Civil Code does not reach such a high degree of trust as in the Anglo-American system of law, nevertheless, the importance of the identity of the parties to the contract, as well as the identity of the third party - the beneficiary, is quite large for him. This is especially noticeable when analyzing the grounds for terminating the contract (see Art. 1024 and comments to it).

Trust management under this agreement must be distinguished from the "internal" management of a company, partnership, unitary enterprise by their director, as well as other statutory bodies. The director (management board of the company, etc.), although he has the right to dispose (to one degree or another) of the property of such organizations, but acts on his behalf, never accepts the property he disposes of on his separate balance sheet, and if bears civil liability to society (partnership, enterprise), then only in cases provided for by law or contract (clause 3, article 53 of the Civil Code).

The absence of direct management of the property of a subsidiary or dependent company, which is a mandatory feature of trust management, makes it possible to distinguish the latter from “external” management, in particular, by a holding company

(Articles 105–106 of the Civil Code, Article 6 of the Law on Joint Stock Companies; Appendix No. 1 to the Decree of the President of the Russian Federation of November 16, 1992 No. 1392 "On measures to implement industrial policy during privatization state enterprises"- SA RF, 1992, No. 21, item 1731);

b) the transfer of property for trust management is a form of exercise by the owner of his powers granted to him by paragraph 4 of Art. 209 GK. It is the owner who determines the purpose of the establishment of trust management, the scope of powers to be transferred, as well as the person in whose interests the trustee must act. As such, the owner may name himself, as well as, with certain exceptions, any other person. In the latter case, the property trust agreement becomes a type of agreement in favor of a third party (see Article 430 of the Civil Code).

In some cases, directly provided for by law (see, for example, Articles 38, 43 of the Civil Code), not the owner himself, but another person (guardianship and guardianship authority, executor, etc.) has the right to act as the founder of trust management. However, even in this case, these persons act solely in the interests of the owner, exercising one of the powers granted to him to dispose of property (for more details about the founder of the management, see Article 1014 and commentary to it);

c) this agreement gives rise to an obligation relationship between the founder of the management and the trustee. It does not involve the transfer of ownership to the latter;

d) the contract is of a "continuing" nature, i.e. is concluded for a certain period and for the performance of a whole series, and not one specific action (for more details, see paragraph 2 of article 1016 and comments to it);

e) the contract is property (for more details about the object of the contract, see Article 1013 and comments to it);

f) the trustee has the right to perform not only legal, but also any actual actions in the interests of the owner or beneficiary. The law or the agreement may provide for restrictions on certain actions on trust management.

By this possibility - to perform not only legal, but also actual actions - the trust management agreement differs significantly from the contract of agency, according to which the attorney has the right to perform only legal actions in the interests of the guarantor. At the same time, these agreements are similar in that both the attorney and the manager act not in their own interests, but in the interests of other persons. Therefore, in a number of cases, the law offers the owner himself to choose which of the contracts best suits his goals (see, for example, Article 41 of the Civil Code);

g) under a property management agreement, the trustee must act on his own behalf, necessarily indicating that he is the manager. In cases that do not require written formalization, he does it orally, and when signing written documents, including transactions, he puts the mark “D.U.” after his name or title.

2. An agreement on trust management of property is, as a general rule, paid.

Article 1013. Object of trust management

1. The objects of trust management may be enterprises and other property complexes, individual objects related to real estate, securities, rights certified by book-entry securities, exclusive rights and other property.

2. Money cannot be an independent object of trust management, except as provided by law.

3. Property under economic management or operational management cannot be transferred to trust management. The transfer to trust management of property that was under economic or operational management is possible only after the liquidation of the legal entity in whose economic jurisdiction or operational management the property was located, or the termination of the right of economic management or operational management of the property and its receipt into the possession of the owner according to other stipulated by law grounds.

1. Most of the objects of civil rights listed in Art. 128 GK. These are, first of all, various types of property (enterprises, other property complexes, real estate, securities, etc.), property rights (for example, the right to lease), as well as exclusive rights (copyright to works of science, literature, art , trade name rights, etc.). Intangible benefits (Chapter 8 of the Civil Code), on the contrary, cannot be considered the object of this agreement.

The transfer of exclusive rights (intellectual property) to trust management should be distinguished from the transfer of them under a commercial concession agreement

(Chapter 54 of the Civil Code). In the latter case, exclusive rights are transferred to the user for his own business activities.

2. The law, with the exception of paragraph 2 of the commented article, does not contain a direct prohibition on the transfer to trust management of things defined by generic characteristics. However, the very structure of the contract, the nature of the relationship that develops between the participants, as well as the approximate list of objects of the contract given in the article itself, leave no doubt that, as a rule, individually defined property should be transferred to trust management.

In some cases, the object of the future contract is directly named in the law. Yes, according to

Art. 38 of the Civil Code, only immovable and valuable movable property of the ward can be transferred to trust management.

3. As a general rule, the transfer of funds for trust management is not allowed. Exceptions are cases provided for by law. So, in accordance with Art. 5 of the Banking Law, a credit institution, i.e. a legal entity that, on the basis of a special permit (license) from the Bank of Russia, has the right to carry out banking operations, among other things, has the right to conclude agreements for the trust management of funds and other property of individuals and legal entities. Trust management of funds of legal entities and citizens by organizations that are not credit organizations can be carried out only on the basis of a license issued in accordance with the procedure established by federal law (Article 7 of the Law of the Russian Federation of February 3, 1996 "On Amendments and Additions to the Law of the RSFSR "On banks and banking in the RSFSR).

4. State, municipal, and private property may be transferred to trust management. However, the state or municipal property that was previously transferred on the property right of economic management or operational management to a unitary enterprise or state or municipal institution, before its transfer to trust management, must lose its previous legal status. Strictly speaking, neither a unitary enterprise, nor a state or municipal institution are not entitled to transfer any property to trust management, since it is presumed that they have it either on the right of economic management or on the right of operational management. Such a function is only entitled to be performed by a special body that, on behalf of the owner, performs the functions of disposing of state or municipal property (see Article 1014 and commentary to it).

Article 1014

The founder of the trust management is the owner of the property, and in the cases provided for by Article 1026 of this Code, another person.

1. It should be added to the text of the article that both the sole owner and owners of property under the right of common or joint ownership can act as the founder of trust management. So, spouses have the right to transfer to trust management a residential building belonging to them on the right of joint ownership. In these cases, in addition to 53 of the Civil Code must also be guided by the rules of Ch. 16 of the Civil Code on the right of common property and Art. 35 of the Family Code of the Russian Federation.

2. In cases stipulated by law, not the owner himself, but another person, the body of guardianship and guardianship (Articles 38, 42, 43 of the Civil Code), the executor of the will (executor) ( 1026 of the Civil Code), etc. However, in this case, the founder of the management acts in the interests of the owner himself, realizing one of the provisions of paragraph 4 of Art. 209 of the Civil Code of powers.

3. A situation similar in content develops when state or municipal property is transferred to trust management. In this case, the founder of management on behalf of the owner of the property (the Russian Federation as a whole, the subject of the Russian Federation, the municipality) has the right to be only a body authorized by the owner to manage his property. In particular, when transferring blocks of shares of privatized enterprises owned by the state or a municipality to trust management, such a body is the appropriate property fund (Articles 6 and 7 of the Law on Privatization, Section 2 of the Agreement between the State Property Committee of the Russian Federation and Russian fund federal property dated October 28, 1992) The beneficiary under this agreement can also be named either the fund itself or the corresponding financial body that has the right on behalf of the owner to accumulate the funds belonging to it.

Section 1015. Trustee

1. An individual entrepreneur or a commercial organization, with the exception of a unitary enterprise, may be a trustee.

In cases where trust management of property is carried out on the grounds provided for by law, the trustee may be a citizen who is not an entrepreneur, or a non-profit organization, with the exception of an institution.

2. Property is not subject to transfer to trust management of a state body or local self-government body.

3. A trust manager cannot be a beneficiary under a property trust management agreement.

1. As a general rule, the transfer of property for trust management is the transfer of it into the hands of a professional. Such in economic circulation is the entrepreneur. It is he (an individual entrepreneur - Article 23 of the Civil Code or one of the commercial organizations listed in paragraph 2 of Article 50 of the Civil Code) who has the right to act as a trustee of someone else's property.

It is possible that the owner or another person interested in receiving the property will establish a special commercial organization, to which the property will be transferred in the future. Depending on the type of property and the nature of the activities of the trustee, the issue of obtaining a special permit (license) to engage in such activities will be decided (see Article 49 of the Civil Code).

2. By virtue of paragraph 1 of Art. 49 of the Civil Code, a unitary enterprise has special legal capacity. The latter does not cover the possibility of engaging in trust management of other people's property. In addition, the prohibition for a unitary enterprise to act as a trustee will help to avoid the hidden transfer of state or municipal property to "trust" management by any of the officials of the unitary enterprise.

For the same reasons, there is a ban on the transfer of property in trust to a state body (ministry, department, department, inspection, etc.) or local government (elected body, head of a municipality, other elected officials).

3. In certain cases provided for by law, trust management is established, mainly, not to increase the property of the owner, but to preserve or distribute it, i.e. for non-commercial purposes. These, in particular, are cases of trust management of the property of a ward (Article 38 of the Civil Code), missing person (Articles 42 and 43 of the Civil Code), etc. Here, a citizen who is not an entrepreneur and a non-profit organization (for example, foundation), with the exception of the institution.

Article 1016

1. An agreement on trust management of property must specify:

the composition of the property transferred to trust management;

the name of the legal entity or the name of the citizen in whose interests the property is managed (the founder of the management or the beneficiary);

the amount and form of remuneration to the manager, if the payment of remuneration is provided for by the contract;

contract time.

2. A property trust management agreement is concluded for a period not exceeding five years. For certain types of property transferred for trust management, the law may establish other deadlines for which an agreement may be concluded.

In the absence of a statement by one of the parties on the termination of the contract at the end of its validity period, it is considered extended for the same period and on the same conditions that were provided for by the contract.

1. The article directly lists those terms of the contract, without the agreement of which it is considered not concluded. This is the so-called. essential terms of the contract, directly named in the law. In accordance with Art. 432 of the Civil Code, the essential conditions also include the conditions on which an agreement must be reached at the request of one of the parties (negotiated conditions). Thus, when concluding a specific agreement on trust management of property, the parties must agree on all the conditions listed in paragraph 1 of the commented article, as well as those on which one of the parties insists under the threat of repudiation of the agreement. Recognition of the contract as not concluded entails the consequences of the invalidity of the transaction (Article 167 of the Civil Code).

2. One of the essential conditions of the contract is its term. On the one hand, a property trust agreement cannot be concluded to perform any one-time action (for example, to cover a transaction for the sale of a car), on the other hand, the term of the agreement, as a rule, should not exceed 5 years. The presence of a sufficiently long term of the contract creates additional guarantees for the trustee to fulfill his duties.

3. The continuing nature of trust management relations is once again emphasized by the possibility of its prolongation on the same terms. If the parties disagree with the previous terms of the contract, they have the right to change or terminate it according to the rules of Ch. 29 and Art. 1024 GK.

Article 1017

1. An agreement on trust management of property must be concluded in writing.

2. An agreement on trust management of immovable property must be concluded in the form provided for an agreement on the sale of immovable property. The transfer of immovable property for trust management is subject to state registration in the same manner as the transfer of ownership of this property.

3. Failure to comply with the form of a property trust management agreement or the requirement to register the transfer of real estate for trust management shall entail the invalidity of the agreement.

1. Paragraph 1 of the commented article requires that the contract of trust management of movable property be made in writing. The parties have the right not to draw up a single written document, it is enough that both the offer (proposal to conclude an agreement) and the acceptance comply with the rules of paragraphs. 2 and 3 Art. 434, Art. 435, 436 and paragraph 3 of Art. 438 GK.

The contract enters into force at the moment the person who sent the offer receives its acceptance (paragraph 1 of article 433 of the Civil Code).

2. Paragraph 2 of the commented article presents special requirements to the form of a contract of trust management of real estate. It must comply with the form of the contract for the sale of real estate (Article 550 of the Civil Code), i.e. be written and drawn up in the form of a single document. In accordance with Art. 7 of the Introductory Law, until the entry into force federal law on registration of rights to real estate and transactions with it, for contracts provided for in Art. 550 of the Civil Code, the rules on their mandatory notarization established by law before the entry into force of part two of the Civil Code (purchase and sale of a residential building, dachas - article 239 of the Civil Code of 1964; in accordance with the Information Letter of the Moscow Property Committee and the Moscow City Notary Chamber dated March 15

1994 "On the procedure for registration of rights to real estate (buildings, structures, non-residential premises in Moscow)" in Moscow, in order to register ownership of acquired buildings, structures, non-residential premises, it is required that a contract of sale, exchange, etc. .P. of such objects was notarized - Bulletin of the Moscow Mayor's Office, 1994, No. 5, p. 63–64).

3. Another feature of the real estate trust management agreement is that the Civil Code, in addition to giving a special form to the agreement itself, requires state registration of the transfer of real estate for management. Such registration must comply with the procedure for state registration of the transfer of ownership of real estate (Article 551 of the Civil Code). For the current procedure for state registration of the transfer of ownership of real estate, see Art. 551 and comment. To her.

4. Failure to comply with any of the named forms of the contract of trust management of property entails its recognition as invalid with the consequences provided for in Art. 167 GK.

5. Failure to comply with the requirements for state registration of the transfer of real estate into trust management leads to the same consequences. If only one of the parties evades such registration, the other has the right to apply to the guilty party those measures that are provided for a similar situation in paragraph 3 of Art. 551 GK.

Article 1018

management

1. Property transferred to trust management shall be separated from other property of the founder of management, as well as from the property of the trust manager. This property is reflected in the trustee on a separate balance sheet, and independent accounting is maintained for it. For settlements on activities related to trust management, a separate bank account is opened.

2. Foreclosure on the debts of the founder of the management on the property transferred by him to trust management is not allowed, except for the insolvency (bankruptcy) of this person. In case of bankruptcy of the founder of the management, the trust management of this property is terminated and it is included in the bankruptcy estate.

1. After the conclusion of an agreement on trust management, the property that is its object must be actually transferred to the trust manager. Even in cases where the law does not require state registration of the transfer of such property, it is desirable that the parties draw up an act of acceptance and transfer (transfer act).

It is he, together with the contract, that will form the basis for the legal and actual separation of property both from the personal property of the trustee himself, and from the property of the owner (founder of the management). The means of such isolation are a separate balance sheet, independent accounting, a separate bank account.

2. There are three exceptions to the general rule on the complete legal separation of property held in trust:

a) if the founder of the management is recognized as insolvent (bankrupt), debt collection may be levied on his property transferred to trust management (Article 1018);

b) execution may be levied on the pledged property transferred to trust management (Article 1019 of the Civil Code);

c) if the property transferred to trust management is insufficient to cover losses from the activities of the manager, recovery in a subsidiary manner can be levied first on the property of the trust manager, and then on the property of the founder of the management (clause 3 of article 1022 of the Civil Code).

Article 1019

encumbered with a pledge

1. Transfer of pledged property to trust management does not deprive the pledgee of the right to foreclose on this property.

2. The trust manager must be warned that the property transferred to him for trust management is encumbered with a pledge. If the trust manager did not know and should not have known about the encumbrance of the property transferred to him in trust management, he has the right to demand in court the termination of the agreement on trust management of property and the payment of remuneration due to him under the agreement for one year.

1. P. 1 comment. Art. emphasizes the real nature of the right of pledge. Possessing the right to follow (see Articles 216, 353 of the Civil Code), the pledgee retains his right to the thing even when it passes to a new owner or owner. In this case, the property passes to the new owner, since the one who established the trust management remains its owner and mortgagor. The grounds and procedure for foreclosure on pledged property, including those transferred to trust management, are provided for in Art. 348–351 of the Civil Code.

2. Since the trust manager accepts property for a long period, he must have certain guarantees of the stability of his management (possession). One of these guarantees is the obligation of the founder of the management (owner) to notify him that the property is encumbered with a pledge. In the event of a possible dispute, the burden of proving that the manager knew about the pledge of property rests with the founder of the management (owner).

The trustee, on the contrary, is obliged to prove that he did not know and, due to the situation, professional skills, and other circumstances, should not have known about the pledge.

3. The grounds for rescission provided for in this article shall be covered by

sub. 2 p. 2 art. 450 GK. In the absence of the fault of the manager, he has the right to demand payment of the due remuneration for 1 year. Real losses should be assigned to the founder of the management (the owner of the property).

Article 1020. Rights and obligations of a trustee

1. The trust manager shall, within the limits provided for by law and the contract of trust management of property, exercise the powers of the owner in relation to the property transferred to trust management. The trust manager shall dispose of immovable property in cases stipulated by the trust management agreement.

2. The rights acquired by the trust manager as a result of actions for trust management of property shall be included in the composition of the property transferred to trust management. Obligations arising as a result of such actions of the trustee shall be discharged at the expense of this property.

3. In order to protect the rights to property held in trust management, the trustee has the right to demand any elimination of the violation of his rights (Articles 301, 302, 304, 305).

4. The trustee submits to the founder of the management and the beneficiary a report on his activities within the time limits and in the manner established by the property trust management agreement.

1. In accordance with paragraph 4 of Art. 209 and paragraph 1 of Art. 1012 of the Civil Code, the trustee does not acquire ownership of the transferred property. However, within the limits granted to him by law and the contract, the manager may own, use, dispose of this property, including transferring it to the ownership of other persons, renting it out, pledging it, etc.

The manager has the right to dispose of real estate (sell, lease, gratuitously use, pledge, etc.) only in cases provided for by the contract - under pain of applying to the relevant transaction the consequences of the invalidity of a void transaction (Articles 166-168 of the Civil Code) .

2. Since the owner continues to bear the overall burden of maintaining the property transferred to trust management (Article 210 of the Civil Code), it is he who bears the risk of increment and reduction of such property, including the emergence of rights and obligations from trust management. As a general rule, the fruits, products and income from property held in trust are at the disposal of the founder (Article 136 of the Civil Code).

3. Rep. 1 and 2 comments. Art. are devoted mainly to the relationship of the manager with third parties. As for his "internal" relations with the founder of the management, they should be clearly regulated in the contract. The general duty of the manager is to show due care for the interests of the founder of the management and the beneficiary and to submit a report on their activities in a timely manner; the basic right is to receive remuneration and cover the costs of property management (see art. 1023 and commentary to it). It should also be noted that after the conclusion of the contract, the manager has the right to demand from the founder of the department a real transfer of property to him (Article 398 of the Civil Code), and in relation to real estate - state registration of such a transfer (Articles 398, 551 and 1017 of the Civil Code).

4. Being the legal (titular) owner of the property transferred to him, the manager uses any proprietary legal means to protect his rights against any third parties, including the founder of the management, the owner of the property and the beneficiary. In particular, he may bring an action for the recognition of his right to property; on the recovery of property from someone else's illegal possession (vindication claim); about the elimination of any violations of one's right, even if these violations were not connected with the loss of possession (negotiable claim).

In the event that property defined by generic characteristics (for example, money) was transferred to trust management, these methods of protection do not apply.

Article 1021. Transfer of trust management of property

1. The trust manager carries out trust management of property personally, except for the cases provided for by paragraph 2 of this article.

2. The trust manager may instruct another person to perform on behalf of the trust manager the actions necessary to manage the property, if he is authorized to do so by the property trust management agreement, or has received the consent of the founder in writing, or is forced to do so by virtue of circumstances to ensure the interests the founder of the management or the beneficiary and at the same time does not have the opportunity to receive instructions from the founder of the management within a reasonable time.

The trustee is responsible for the actions of the attorney chosen by him as for his own.

1. Comment. Art. provides for three grounds for the transfer of trust management to a third party. This list is exhaustive and is not subject to expansion in specific property trust management agreements.

2. The main difference between this action and the subordination under Art. 187 of the Civil Code is that the trustee, even after the transfer of control, continues to be responsible for the actions of the attorney. In addition, the attorney performs legal and actual actions with the property transferred to him on behalf of the trustee, and not on his own behalf or on behalf of the founder of the management.

Article 1022. Liability of a trustee

1. The trust manager, who failed to show due care for the interests of the beneficiary or the founder of the trust during the trust management of the property, shall compensate the beneficiary for the lost profit during the trust management of the property, and the founder of the management - the losses caused by the loss or damage to the property, taking into account its natural wear and tear, as well as lost profit.

The trustee shall be liable for the losses caused, unless he proves that these losses occurred as a result of force majeure or the actions of the beneficiary or the founder of the management.

2. Obligations under a transaction made by a trustee in excess of the powers granted to him or in violation of the restrictions established for him, shall be borne by the trustee personally. If the third parties involved in the transaction did not know and should not have known about the excess of authority or about the established restrictions, the obligations that have arisen are subject to execution in the manner prescribed by paragraph 3 of this article. In this case, the founder of management may demand compensation from the trustee for the losses incurred by him.

3. Debts on obligations arising in connection with the trust management of property shall be repaid at the expense of this property. In case of insufficiency of this property, execution may be levied on the property of the trustee, and in case of insufficiency of his property, on the property of the founder of the management, not transferred to trust management.

4. An agreement on trust management of property may provide for the provision by the trustee of a pledge to secure compensation for losses that may be caused to the founder of the management or the beneficiary by improper performance of the agreement on trust management.

1. P. 1 comment. Art. provides for the general grounds and procedure for the liability of the trustee in his "internal" relations with the founder of the trust and the beneficiary.

It should be noted that the content of this paragraph is somewhat contradictory. On the one hand, we are talking about the responsibility of the trustee for the lack of due care for the interests of the beneficiary or the founder of the management, i.e. about culpability. On the other hand, there is a rule according to which the trustee is released from liability only in the presence of force majeure circumstances or relevant actions of the beneficiary or the founder of the management, i.e. about liability without fault.

It seems that the general rule of liability of a trustee is liability without fault. However, the manager has the right to prove that the losses occurred not only as a result of force majeure, but also due to the actions of the founder of the management and (or) the beneficiary. This rule will correspond to paragraph 3 of Art. 401 of the Civil Code, which provides for the general liability of entrepreneurs (and mainly entrepreneurs act as trustees) without fault. An exception to this rule may be provided for by a special law.

2. Another characteristic feature of the liability of the trustee under the contract is the obligation to compensate for losses not only to the founder of the management, but also to the beneficiary - in the form of lost profits. When determining the amount of damages caused, it is necessary to be guided by Art. 15 and 393 of the Civil Code.

3. P. 3 comments. Art. establishes a general procedure for liability for transactions lawfully made by the manager with third parties. The grounds for such liability will largely depend on who acted as a trustee - an entrepreneur or a citizen (non-profit organization) (Article 401 of the Civil Code).

However, if the manager himself or the attorney appointed by him (clause 2 of article 1021 of the Civil Code) when making such transactions went beyond the powers granted to the manager or acted in violation of the restrictions established for him, the manager of his personal property bears responsibility.

The possibility of executing such transactions before third parties is made dependent on the subjective factor - the good faith behavior of third parties. If the latter, in the event of a dispute, manage to prove that they did not know about the excess of their powers by the manager or about the restrictions established for him, then they can receive compensation directly from the property transferred to trust management (clause 3 of article 1022). At the same time, the founder of the management recovers the damage caused to him from the trustee by way of recourse.

Article 1023. Remuneration to a Trustee

The trustee has the right to remuneration provided for by the contract of trust management of property, as well as to reimbursement of the necessary expenses incurred by him during the trust management of property at the expense of income from the use of this property.

1. Comment. Art. provides for the payment of remuneration and reimbursement to the trustee of the expenses incurred by him, which allows us to conclude that the contract as a whole is of a compensatory nature.

2. At the same time, the norm contained in the article is not mandatory, therefore, firstly, the trustee has the right to perform his duties free of charge, and, secondly, the procedure for paying him remuneration and covering expenses can be changed in the contract. In particular, it is hardly possible to talk about making a profit or income from managing the property of a ward (Article 38 of the Civil Code), missing (Article 43 of the Civil Code), under patronage (Article 41 of the Civil Code), etc. Rather, it is about maintaining or distributing it, which nevertheless involves significant effort and expense on the part of the manager.

The remuneration payment system proposed in the article is suitable mainly for managers - entrepreneurs. As for expenses, only the necessary ones, supported by the relevant documents or the report of the manager, are subject to reimbursement.

Article 1024

1. The agreement on trust management of property is terminated due to:

death of a citizen who is a beneficiary, or liquidation of a legal entity - beneficiary, unless otherwise provided by the contract;

refusal of the beneficiary to receive benefits under the contract, unless otherwise provided by the contract;

death of a citizen who is a trustee, recognition of his incapacity, limited capacity or missing, as well as recognition of an individual entrepreneur as insolvent (bankrupt);

refusal of the trust manager or the founder of the management from the implementation of trust management due to the impossibility for the trust manager to personally carry out trust management of property;

refusal of the founder of the management from the contract for other reasons than the one specified in the fifth paragraph of this clause, subject to the payment to the trustee of the remuneration stipulated by the contract;

declaring insolvent (bankrupt) a citizen-entrepreneur who is the founder of the department.

2. In case of refusal of one party from the agreement on trust management of property, the other party must be notified of this three months before the termination of the agreement, unless the agreement provides for a different notice period.

3. Upon termination of the trust management agreement, the property held in trust management shall be transferred to the founder of the management, unless otherwise provided by the agreement.

2. The article names three forms of refusal of the contract, which lead to its termination. Despite certain specifics, they comply with the general requirements that apply to refusals to execute the contract, paragraph 3 of Art. 450 GK. These include:

a) the refusal of the beneficiary to receive benefits under the contract, unless the contract provides otherwise;

b) the refusal of the trustee or the founder of the management from the performance of the contract due to the impossibility for the trustee to perform his duties personally. At the same time, the latter is not entitled to demand payment of remuneration to him for the entire period;

c) refusal of the founder of the management to execute the agreement due to circumstances other than impossibility of execution of the agreement by the trust manager personally. In this case, the manager has the right, upon termination of the contract, to demand payment of the entire amount of remuneration due to him.

Unless the contract provides for a different period, the notice of refusal to execute it must be received by the other party no later than three months before the moment of its termination. This rule does not apply to the withdrawal of the contract by the beneficiary.

Article 1025

When transferring securities for trust management, provision may be made for the pooling of securities transferred for trust management by different persons.

The powers of the trustee to dispose of securities are determined in the trust management agreement.

Features of trust management of securities are determined by law.

The rules of this article shall respectively apply to rights certified by paperless securities (Article 149).

1. The transfer of securities into trust management has a number of specific features. One of them is that the trustee must be recognized as a professional participant in the securities market, and this is confirmed by the presence of an appropriate license. At present, the list of bodies entitled to issue such licenses (the Federal Commission for Securities and the Stock Market under the Government of the Russian Federation and other bodies authorized by it), as well as the procedure for issuing them, is established by Decrees of the President of the Russian Federation dated November 4, 1994 No. 2063 "On measures on State Regulation of the Securities Market in the Russian Federation" (SZ RF, 1994, No. 28, Art. 2972) and No. 2203 dated December 20, 1994 "On Certain Measures to Streamline Activity on the Securities Market in the Russian Federation" (SZ RF, 1994, No. 35, item 3689).

2. In accordance with Art. 6 of the Law on Banks, banks licensed by the CBR to carry out banking operations are entitled to conclude agreements on trust management of securities with individuals and legal entities. In this case, securities are understood to mean all those that perform the functions of a payment document, confirm the attraction of funds to deposits and bank accounts, as well as other securities, the implementation of transactions with which does not require, in accordance with federal laws, obtaining a special license.

Other credit organizations have the right to carry out professional activities in the securities market only in accordance with federal laws.

3. One of the main such laws could be the law on the securities market, the draft of which is under discussion in the Federal Assembly of the Russian Federation.

Article 1026

prescribed by law

1. Trust management of property may also be established:

due to the need for constant management of the property of the ward in the cases provided for in Article 38 of this Code;

on the basis of a will in which the executor of the will (executor) is appointed;

on other grounds provided by law.

2. The rules provided for by this chapter shall apply accordingly to relations on trust management of property established on the grounds specified in paragraph 1 of this article, unless otherwise provided by law and does not follow from the essence of such relations.

In cases where trust management of property is established on the grounds specified in paragraph 1 of this article, the rights of the founder of management, provided for by the rules of this chapter, belong respectively to the guardianship and trusteeship body, the executor of the will (executor) or other person specified in the law.

1. In the comment. Art. special cases of trust management of property are listed. Their list can be supplemented with cases of trust management of the property of a missing person (Articles 42 and 43 of the Civil Code) and the property of a person over whom guardianship has been appointed in the form of patronage (Article 41 of the Civil Code). The list is not exhaustive and may be supplemented by a special law.

2. Despite the specifics that everyone has, these cases have certain common features: a) they are provided separately in the Civil Code or a special law; b) the basis for the emergence of a legal relationship in these cases is, as a rule, not just a contract, but a complex legal structure - the decision of the body of guardianship and guardianship on the appointment of guardianship and the contract, will and contract of the executor with the trustee, etc.; c) in such cases, as a rule, trust management is established not by the owner himself, but by another person (body of guardianship and guardianship, executor, etc.); d) the content of the legal relationship on trust management is formed as a whole according to the rules of Ch. 53 of the Civil Code, unless otherwise provided by law and follows from the essence of such relations. Yes, Art. 37 and 38 of the Civil Code provide for additional limits on the actions of the trustee, arising from the essence of the trusteeship relationship. It also speaks of a special case of termination of the contract - the termination of the guardianship itself.

3. In separate practical comments on part two of the Civil Code, in essence, the opinion was expressed that the cases of trust management of property provided for by law, along with the listed ones, should also include: a) the actions of the liquidation commission (liquidator) during the liquidation of a legal entity (Article 62 GK); b) actions of the provisional administration to manage the credit institution for up to 18 months

(Part 2, Article 75 of the Law on the Central Bank; Temporary Regulations on the Interim Administration for the Management of Commercial Banks and Other Credit Institutions - Economics and Life, 1994, No. 39, p. 5); c) actions of an arbitration manager appointed by the arbitration court for the purpose of conducting external management of the property of the debtor enterprise (Article 12 of the Bankruptcy Law); d) actions of the bankruptcy trustee appointed by the arbitration court (Article 2 of the Bankruptcy Law).

These conclusions appear to be inaccurate and are based on the desire to cover all non-standard forms enterprise management with the help of the norms of Ch. 53 GK. Firstly, none of the cases cited here meets the entire sum of the signs of an agreement on trust management of property (see Article 1012 and comments to it). In particular, neither the liquidation commission nor the provisional administration for the management of a credit institution make transactions with the property of an enterprise (bank) on their own behalf; secondly, in none of the listed cases there is a separation of property. In other words, none of the named subjects of management puts the received property on a separate balance sheet and does not open a separate bank account for settlements on it; thirdly, even taking into account the norm of the second paragraph of paragraph 1 of Art. 1015 of the Civil Code, which allows the exercise of the functions of a trustee by a citizen who is not an entrepreneur, the legal status of the provisional administration remains unclear. In accordance with paragraph 7 of the Provisional Regulations on the provisional administration for the management of commercial banks and other credit institutions, it is a group of persons who do not have the status of a legal entity. Fourth, even in those cases where a separate agreement with the manager is nevertheless concluded (for example, with a member of the temporary administration who is not an employee of the Bank of Russia), the possibility of using a trust management agreement raises certain doubts. This can be especially clearly seen in the example of a bankruptcy trustee, whose appointment and control is carried out by the arbitration court, permission for particularly important transactions is given by the meeting of creditors. And besides, up to the exclusion from the state register of legal entities, the liquidated enterprise itself remains active, which also has the right to claim both the role of the founder of the management and the role of the beneficiary under the contract.

In view of the foregoing, it should be concluded that: a) in each of the above cases, there is a special type of enterprise (bank) management. This type of management, neither in content nor in form, does not coincide with the trust management of the property complex; b) management is carried out by a person who temporarily replaces the traditional management bodies of an enterprise (bank); c) in cases where a contract is concluded with these persons, its content, as a rule, corresponds to a civil law contract of a contract type.

21May

Hello! In this article we will talk about trust management.

Today you will learn:

1. What can be transferred to trust management;
2. How to open a trust management agreement;
3. How to choose the right management company.

Trust management and its features

Today there are a huge number of intermediaries in various spheres of life. You can enter into an agreement with some company that will make a wholesale purchase for you or deliver goods to the addressee.

This is a common type of business that is gaining momentum. It is convenient not only for intermediaries, but also for the customers of the service themselves: you don’t need to delve into the essence of the issue, you can just pay money and make a deal on favorable terms.

Intermediaries may manage property in order to preserve it or increase assets. This is called trust management.

For example, you want to, but do not know how to do it. A qualified manager will cope with this task. This option is also suitable for busy people who have no time to deal with their own property: it is easier to transfer it to a third party for temporary disposal with some restrictions.

You can transfer money or other property as an individual (working as an individual entrepreneur) or. They must have a license to carry out such activities, otherwise you can lose part of your property or even contact scammers.

Participants in trust management can be individuals and entire organizations. In both cases, a contract is concluded, which specifies all the nuances of the transaction.

For their work, management companies charge a certain fee. Usually it is calculated as a percentage of the profit that was obtained during the limited disposal of property. Its size depends on the type of property transferred for management, the policy of the company itself and the profit received.

An important factor here is that these intermediaries do not give guarantees of profitability (hence the concept of “trust”). This important stipulation is contained in the legislation.

Intermediaries can disclose to you the profit received for the previous period of activity when interacting with other clients.

Typically, a trust management agreement is concluded for a period of not more than 5 years. If the parties, upon its completion, did not take the initiative to terminate the agreed conditions, then such an agreement is extended by default for a new period.

At the same time, the manager does not need a power of attorney to perform any actions with the transferred property. In order for the actions to be legal, it is enough to mark each document with the mark “D. U."

The procedure for interaction between the manager and the owner of any asset is regulated by the Civil Code of the Russian Federation. Failure to comply with legal regulations may result in penalties.

Trust management classification

The trust management service is gaining popularity: more and more people are transferring their own funds on favorable terms to intermediaries.

Depending on the object of the agreement, there is trust management:

• cash. You transfer your own funds to a management company that builds capital over a certain period of time;
• Securities. If you have a package of shares or bonds, the manager will help you profitably purchase and sell on;
• real estate. Buildings, structures, land plots or entire complexes;
• assets. These are various inventories, vehicles and other property of enterprises;
• property. For example, an organization may transfer its own equipment or copyrights to an intermediary.

Each type of property will have its own management company. Universal intermediaries involved in, for example, managing both money and real estate are extremely rare today.

If you need to transfer securities and equipment, you will have to contact different companies. This division is due to the narrow specialization of most companies. They employ professionals in one area, whose knowledge is at a high level.

However, the management of cash and securities can be handled by the same company.

Trust management by the nature of the interaction between the manager and the client can be:

• Complete. In this case, an agreement is concluded in which the owner completely transfers the initiative to the intermediary. The manager is responsible for all actions with assets. However, he does not guarantee a profit, and the losses incurred through his fault cannot be challenged in court. This is possible only if you prove the intention of his actions, which is practically impossible in practice, especially if you do not know the basics of this activity;
• By agreement. The manager informs the client about favorable market conditions for making transactions with the transferred property. The owner, at his discretion, can give a positive or negative answer. In this case, the responsibility for the operations falls on the shoulders of the client. If the transaction turns out to be unprofitable, then the intermediary will not be to blame;
• By order. The owner of the assets transferred for trust management, at his own discretion, transfers the action plan to the intermediary. In this case, the intermediary's right to manage is limited, he cannot independently make decisions on transactions with the managed object.

Full trust management is in great demand in our country. For the most part, this is due to financial illiteracy and unwillingness to delve into complex financial issues.

Trust money management

The transfer of funds to trust management is not yet a guarantee of profit. In case of adverse events, you can generally lose the invested money. Usually, some guarantees of income or return of funds are stipulated in the contract.

The money management agreement may state that, as a result of the transaction, the client receives:

• A certain guaranteed amount of invested funds as a percentage of the initial capital + profit. For example, in case of an unsuccessful development of events, only 70% of the capital will return to you, and in case of a successful transaction, you will take your own funds and 13% per annum is guaranteed;
• Full investment amount + interest. This can be attributed. Only restrictions on deposit insurance should be taken into account. In one management company (in a bank), it is recommended to place no more than 1,400,000 rubles;
• Unpredictable trade outcome. There are no guarantees, the work of an intermediary can only be judged by previous income or losses. This is the riskiest type of trust management, which, if won, can bring a return exceeding 100%.

The objectives of trust management of money are:

• Saving money from uncontrolled spending;
• Preservation of monetary assets in ownership during the procedure;
• Tax evasion, hiding the identity of the owner of the money;
• Capital accumulation.

The most common ways to manage funds:

In both cases, you transfer funds to a management company that distributes assets.

Mutual funds are the most profitable option for owners of small amounts. If you don't know how to make a profit on a small capital, buy several shares, which you can then sell profitably.

Mutual funds allow you to invest in a variety of areas of life. With your money, combined with other assets of investors, securities will be purchased, carried out or. It all depends on the direction of the management company (MC).

PAMM accounts are a common tool for investing in stock and. You open a special account, which is combined with the accounts of other participants.

An experienced manager controls the placement of the entire amount of funds and closely monitors the process. Since the amount of investment is impressive, then the income can be appropriate.

Trust management of property

Property management involves solving a whole range of tasks and depends on the specifics of the transferred object.

The last one could be:

• The property;
• Exclusive rights (for example, managing a share in);
• Securities;
• Movable property;
• Other.

As you can see, the range of control in this case is very wide. The intermediary can dispose of, within the framework stipulated by the contract, all property: from securities to real estate complexes.

Such types of management are convenient in cases where the owner of the assets went for temporary residence in another country. During his absence, things will not stand still: a competent specialist (and in most cases, a group of them) will dispose of the property at his own discretion or clarify the action plan with the client.

The transfer of property to trust management is often carried out in the course of guardianship or recognition of the owner as missing. In this case, often the property is not in the hands of the right holder, but in the possession of guardianship authorities.

Here, the manager will not necessarily be an organization, more often it will be an individual in the role of a guardian. In this case, the manager will not be considered the beneficiary under the contract.

It is important to understand that the disposal of the owner's property is temporary. The manager, according to the law, does not transfer ownership of the assets.

Trust management of real estate

Many of us turn to real estate companies. This is one of the varieties of trust management of real estate.

There are countless such intermediaries on the market, and they have existed for a long time. Their activities are based on the conclusion of an agreement with the client, as a result of which the sale of real estate will be carried out, or supervision of it during the absence of the owner.

The management company, depending on the subject of the agreement, provides several services:

• Payment of utility bills;
• Room cleaning;
• Timely repair;
• Purchase necessary furniture, technology, etc.;
• Search for a client suitable for the role of a buyer or tenant;
• Insurance;
• Safety from encroachments of third parties;
• Decision conflict situations with representatives of the law or residents;
• Representing the interests of the owner in the regional chamber;
• Transfer of funds received as a result of the transaction to the account of the property owner.

Trust management of an apartment, building and other real estate is recorded in the regional chamber in the same way as a regular sale and purchase transaction. An agreement signed on other terms is null and void.

If the agreement is concluded for a period of more than one year, then all real estate transactions must also be registered with the state body.

Trust management of securities

If you want, then the initiative in this matter can be transferred to a brokerage company. She will competently draw up an investment portfolio, predict possible risks and profitability.

For example, you can open an individual account, on which funds will be controlled by an intermediary.

As you know, shares are a rather risky instrument of the stock market, which can deprive the owner of the invested funds in a short period of time. And if there is a high risk, then the profit can exceed expectations. To operate in the stock market requires special knowledge and trading skills. Without them, you can lose capital.

The management company is aimed at receiving income from them. At the same time, the broker often combines the client's invested funds with personal ones. For the owner of the capital, this is the confidence that each transaction will be carried out very carefully: after all, failure threatens the loss of funds for the trader himself.

An important concept in securities trust management is diversification. It is necessary to distribute the available capital among several instruments of the securities market.

Example. You can invest in stocks large companies, government bonds and not most into securities market newcomers. This will help increase the efficiency of investments and increase the chances of receiving a large income.

Trust management of securities usually takes 12 months. Some clients withdraw funds after six months. The main purpose of the transfer of management of stock market instruments is precisely the increase in capital in short time.

Trust management of shares and other securities is very popular in our country, since a small number of people still understand the intricacies of trading in the stock market.

The terms of the contract may provide that the client will observe the actions of the manager in the "online" mode. This will allow you to recognize some of the nuances of the market and understand many concepts. In the future, if desired, the client will be able to conclude the first transactions independently.

The owner of the purchased securities has the right to be interested in the actions performed by the trustee and clarify the situation on the market. If for some reason the owner of the capital considers it necessary to withdraw his funds, he cannot be denied this.

Trust asset management

Every organization has different assets at its disposal. To manage them more efficiently and bring profit in a short time, this activity is entrusted to a third-party company.

The following property of a legal entity can be transferred for trust management:

• Building;
• Various kinds of structures;
• Equipment;
• Vehicles;
• Commodity values;
• Copyrights and available patented technologies;
• bank deposits.

An important feature when transferring the assets of an enterprise to trust management is that they are not combined with the funds of the manager. Separate accounting is kept for the received property, which is negotiated at the stage of concluding a transaction.

An intermediary can make transactions with the company's assets on his own behalf. At the end of the term of the agreement, the proceeds are transferred to the account of the owner of the assets.

In this case, the object of the agreement may be the opening of an account for:

• stock market;
• Forex;
• Purchase of metals.

The most risky of these options is the Forex market. Making transactions on it, the company runs the risk of being left with nothing. Investments in the foreign exchange market are suitable only for firms with an aggressive policy.

Another area for the placement of assets is the real sector of the economy. This is the purchase of real estate, equipment and other large objects. This activity has a long process that takes funds out of the organization’s turnover for a long time, and therefore is available only large enterprises with free capital.

The most common way to invest assets is to invest in stock market instruments. Moreover, here companies may have the goal of generating income or acquiring other firms through the purchase of a controlling stake.

At the conclusion of the contract, an investment declaration is mandatory. It contains in detail all areas of investment.

During the term of the agreement, the owner of the assets has the right to withdraw his own money in part or in full. However, you can withdraw the funds received as income only during the periods specified by the terms of the management company.

Enterprise asset management involves handling large sums. Typically, intermediaries conclude contracts in the amount of 1,000,000 rubles.

Instructions for those wishing to use trust management

In order for the accumulation process to go smoothly and without involving the owner of the capital in the process, it is better to find a competent manager. In this case, an agreement is concluded that specifies all the nuances of the intermediary's actions and excludes fraudulent tricks.

To transfer your own property, assets, funds to trust management, you will need to go through several steps:

1. Decide what exactly will be transferred to the intermediary. The further search for a manager, the amount of his remuneration, the term for concluding an agreement and potential profit depend on this. It is important not to transfer to management those funds that you may need in the near future. Intermediaries do not guarantee income, and therefore it is possible to be left without the required funds;
2. Choosing an intermediary. It is important to find a management company whose name is well known. It must have an excellent reputation, and besides, it must have a license for the services provided. Do not trust your own property to dubious individuals who call themselves representatives of financial companies. Check all the documents, and most importantly - read reviews on the Internet;
3. We collect the necessary documentation. Each company submits its own list. It depends on the nature of the further actions of the intermediary and the degree of participation in it of the owner of the capital;
4. Conclusion of an agreement. Be sure to ask the manager if you don't understand any part of the agreement. Phrases should not be perceived in two ways, and therefore, in case of any doubt, ask to redo the line of the contract. Here, pay attention to the term of the agreement, the amount of remuneration and your rights. Most often, the form of the contract has a single sample established for all customers;
5. Payment for intermediary services. This can be a fixed amount paid immediately after the conclusion of the contract or a percentage of the income received. If possible, choose the second payment method. It acts as a motivation for the manager to make more money, which means that you will receive a considerable income;
6. Control over the activities of the manager. Please note that there must be a clause in the contract that addresses this issue. For example, an intermediary may report income and losses for specified periods. This is important, as you will be able to determine the effectiveness of management and save funds in a timely manner from possible loss.

How to choose a management company

Entrust your own funds to an outsider, even if he is an employee of a large financial company, is not an easy task. Therefore, the selection of a management company should be taken very carefully. Your income and the safety of capital or other property depend on this action.

• Pay attention to the company's analytics database. Market analysis is an extremely important indicator by which you can predict asset purchase and sale transactions. If the management company does not maintain analytical and news blocks on its website, this is a reason to be wary. Any large and self-respecting company spends a lot of money on this, which a small intermediary without experience cannot afford;
• Determine the level of reliability of the intermediary. Contact various rating agencies. Their reviews can be easily found on the Internet. The management company should occupy the top lines of the rating - this will speak of its high reliability and extensive experience;
• Find company reviews. Don't ignore customer feedback. They have a lot to say. From their words, one can draw a conclusion about further cooperation;
• Find out how many investment strategies the management company offers. If there are three or more of them, then this company can be considered for the transfer of its own funds. If there are only two strategies or one at all, then you should not contact such an intermediary;
• Analyze the investment portfolio offered by the management company. It is believed that in practice the share of an asset of one type in the diversification of investments should not exceed 15%. If this figure is much higher, and besides, it corresponds to risky assets, then you may lose your capital;
• Find out if the intermediary provides the service of a personal manager. In this case, you will have a personal financial intermediary with whom you can agree on various nuances and consult on any issue;
• Specify whether you will have the right to restrict the actions of the manager. For example, it is important to set the percentage of assets in a diversified portfolio. Thus, you can protect yourself from inappropriate actions of the intermediary and save the money invested;
• Find out on what basis you can request a report on the actions of the manager (on paid or free) . In reliable companies, upon your request, information is provided free of charge, and for any period.

By following our recommendations, you will be able to find a quality manager who will not only save your capital, but also bring high returns. The main thing is to ask all the questions you are interested in before concluding the contract, so that the nature of the company's activities is clear to you at the initial stages.

recreation and health complex in a person acting on the basis of , hereinafter referred to as " Management Founder”, on the one hand, and in the person acting on the basis of , hereinafter referred to as “ Trustee”, on the other hand, hereinafter referred to as the “Parties”, have concluded this agreement, hereinafter “ Treaty" about the following:

1. THE SUBJECT OF THE AGREEMENT

1.1. The Trustee transfers to the Trustee the real estate belonging to him on the right of ownership for trust management, and the Trustee undertakes to manage this property in the interests of the Trustor.

1.2. A description of the property transferred to trust management, including buildings (hereinafter referred to as the “Property”), is contained in Appendix No. to this agreement. This Appendix also indicates electrical equipment, water supply systems, sewerage, telephone lines and other property installed in the transferred buildings. The property is located at: . The property is transferred for the implementation of trust management in order to organize a complex with health procedures (hereinafter referred to as the "Complex"). The complex is designed for organizing recreation and recreation.

1.3. Ownership of the Founder of the Department for the specified in paragraph 1.2. property is confirmed by the following documents: .

1.4. The Trustee owns and uses the transferred property solely for the benefit of the Settlor.

1.5. The transfer of property for trust management does not entail the transfer of ownership of it to the Trustee.

2. TRUST NATURE OF THE CONTRACT

2.1. By entering into this agreement, the Trustor of the Management places special trust in the Trustee as the person who is best able to manage the property belonging to the Trustor of the Management.

2.2. When exercising the rights and fulfilling the obligations arising from the agreement, the trustee is obliged to act in good faith and in the manner that is best for the interests of the Trustor.

2.3. The trustee has the exclusive right to determine what way of his action in relation to the managed property is the best from the point of view of the interests of the Settlor.

2.4. The trustee makes transactions with property on his own behalf, while performing actions that do not require written execution, he must inform the other party about this, and in written documents, after his name, make a note “D.U.”.

3. RIGHTS AND OBLIGATIONS OF THE PARTIES. CONTROL OVER THE ACTIVITIES OF THE TRUSTEE

3.1. The trustee must:

3.1.1. Carry out property management in accordance with the purpose specified in clause 1.2. actual agreement. To this end, the Trustee will manage the property to standards comparable to those in European practice for similar projects, as well as in accordance with local characteristics and traditions.

The trustee may use the property for all habitual purposes, in accordance with the concept of management, subject to the limitations set out in this agreement, to establish conditions for access, fees for services and for the rental of property to third parties, for performances and entertainment, sports and recreation, food and drink, as well as all stages of advertising the Complex.

The trustee must effectively manage the property, including providing all services, and also has the right to lease part of the property for the organization of restaurants, casinos and other similar establishments. Lease agreements are concluded by the Trustee with the prior consent of the Settlor. Rent is included in property management income.

The trustee is obliged to maintain the property in proper condition, organize its maintenance and pay the costs of maintaining the property, timely eliminate the consequences of accidents.

The trustee has the right to carry out the necessary improvements to the property, including repairs, only with the prior written consent of the Trustor and only after justifying these actions for the development of the Complex and / or obtaining additional income.

These actions are carried out by the Trustee at the expense of income received from property management. The expenses incurred are the expenses of the Trustor. The Trustee has the right to receive income from the property by any means that comply with the current legislation of the Russian Federation and the interests of the Trustor. specified in this agreement.

The trustee is not entitled to sell, exchange, donate property, pledge property, transfer it for free use, transfer property as a contribution to authorized capital business companies and partnerships or a share contribution to a cooperative, a contribution to a fund, another legal entity, as well as.

The trustee has the right to determine the pricing policy, conclude any contracts at its discretion for the implementation of services and for the supply necessary goods, form a staff for the implementation of trust management, develop a system of internal functional schedules, obtain licenses to carry out activities related to property management, carry out advertising, independently form a recreation program for guests.

3.1.2. Ensure the safety of property held in trust.

3.1.3. Account for property transferred to trust management, as well as income received from this property, on a separate balance sheet. At the same time, income is understood as all receipts, including non-property, received as a result of the use of the said property.

3.1.4. For settlements on activities related to trust management, open a current account in.

3.1.5. Transfer to the Founder of the management all income received from the trust management of property, with the exception of funds used to cover the costs associated with management, remuneration due to the Trustee, other payments and expenses provided for in this agreement. The amounts due to the Trustor of the Department must be transferred to the current account no later than the date of each period.

3.1.6. Submit a report on its activities to the Founder of the Department no later than the day of each month at the monthly reporting meeting, agree on the budget of monthly expenses for the next month at each such meeting. Date, meeting procedure to be determined financial director Trustee in agreement with the Trustee.

3.1.7. Ensure a high professional level of trust management of the Founder's property.

3.1.8. At the end of the trust management, transfer to the Trustor of the management the property and documents on it, as well as undistributed income from the property under the deed of transfer.

3.2. The founder of the management is obliged to transfer to the Trustee all the documents and information necessary for the performance of obligations and the exercise of rights under this agreement.

3.3. During the period after the transfer of property to the Trustee (before the transfer of property), the property must be insured by the Trustor at his own expense and in his favor for a period of the following risks: . Before the expiration of the insurance period, the Trustee must insure the property at the expense of income from trust management in favor of the Trustor of the management for the same risks so that from 00:00 on the day following the expiration date of the previous insurance contract, a new insurance contract comes into force (i.e. e. that the property is always insured). The trustee extends the term of this insurance agreement (concludes new insurance agreements) on the same terms until the expiration of this agreement.

3.4. The rights acquired by the Trustee as a result of actions for trust management of property are included in the transferred property. The obligations arising as a result of such actions of the Trustee shall be discharged at the expense of this property. In case of insufficiency of this property, foreclosure may be levied on the property of the Trustee, and in case of insufficiency of his property, on the property of the Trustor of the Management, not transferred to trust management.

3.5. The Trustee is not entitled to entrust another person to perform on his own behalf the actions necessary for the management of property, except in cases when he is forced to do them due to circumstances to ensure the interests of the Trustor and does not have the opportunity to receive instructions from the Trustor within a reasonable time.

3.6. The remuneration to the Trustee is retained by him on a monthly basis at the expense of income from property transferred to trust management in the amount of % of the amount of income from property for the past month.

3.7. The rights and obligations of the Trustee under this agreement arise from the moment of state registration of the transfer of property specified in clause 1.2. of this agreement, in trust management.

3.8. In order to control the activities of the Trustee, the Trustor has the right to inventory the property, check the financial activities of the Trustee in the performance of this agreement, exercise control over the activities of the Trustee through his permanent representative, receive information about the work, projects and other information. Also, the Trustor of the Department has the right to carry out work on the repair, reconstruction, completion of property in agreement with the Trustee.

4. LIABILITY OF THE TRUSTEE

4.1. The trustee, who failed to show due care for the interests of the Trustor during the trust management of the property, shall compensate the latter for the lost profit during the trust management of the property, as well as the damage caused by the loss or damage to the property, taking into account its natural wear and tear. The Trustee shall be liable for the losses caused, unless he proves that these losses occurred as a result of force majeure or the actions of the Settlor.

4.2. Obligations under a transaction made by the Trustee in excess of his authority or in violation of the restrictions established for him, shall be borne by the Trustee personally. If the third parties involved in the transaction did not know and should not have known about the excess of authority or about the established restrictions, the obligations that have arisen are subject to execution in the manner prescribed by clause 3.4. actual agreement. In this case, the Settlor may demand compensation from the Trustee for the losses incurred by him.

5. TERM OF AGREEMENT AND CONDITIONS OF ITS EARLY TERMINATION

5.1. This agreement is concluded for a period of time. This agreement may be extended for the same period and under the same conditions if, prior to its expiration, one of the parties sends a written proposal to the other party to extend the validity of the agreement.

5.2. The Agreement is terminated before the expiry date specified in clause 5.1. period under the following circumstances:

5.2.1. Refusal of the Trustee or the Settlor to exercise trust management due to the impossibility for the Trustee to personally carry out trust management of property.

5.2.2. Refusal by the Settlor of the Management from the agreement in the event that the Trustee commits actions that are clearly directed to the detriment of the interests of the Settlor of the Management.

5.2.3. Refusal of the founder of the management from the contract for reasons other than those provided for in paragraphs. 5.2.1 and 5.2.2 of this agreement, subject to the payment to the Trustee of the remuneration stipulated by the agreement for the entire term of the agreement.

5.2.4. Destruction of property transferred to management.

5.2.5. By agreement of the parties.

5.2.6. On other grounds, if such grounds are provided for by law, this agreement or additional agreements thereto.

5.3. The founder of the management undertakes not to alienate the property in whole or in part to the ownership of a third party until the termination of this agreement.

5.4. If one party withdraws from the trust management agreement, the other party must be notified at least three months before the termination of the agreement.

6. TRANSFER AND RETURN OF PROPERTY

6.1. The transfer of property is carried out according to the act of transfer of property, signed by both parties. The act must contain a list of the transferred property, indicating its book value, condition and other necessary characteristics at the time of transfer. The deed of transfer is drawn up in two copies, one of which is handed over to the Trustor, and the second - to the Trustee. When transferring property to trust management, the Trustor shall transfer to the Trustee the technical documents necessary for the implementation of property management.

6.2. Together with the property specified in clause 1.2. of this Agreement, the Trustor of the Management transfers to the Trustee the electrical equipment, water supply, sewerage systems, telephone lines and other property installed in the transferred buildings. This property is indicated in the act of transfer specified in clause 6.1. actual agreement.

6.3. In case of termination of the agreement for any reason, the Trustee shall return to the Trustor the property, including electrical equipment, water supply, sewerage systems, telephone lines and other property installed in the transferred buildings, no later than from the date of termination of the agreement under the act of transfer. The act must contain a list of the transferred property, indicating its book value, condition and other necessary characteristics at the time of transfer. The deed of transfer is drawn up in two copies, one of which is handed over to the Trustor, and the second - to the Trustee.

7. FORCE MAJEURE

7.1. The parties are released from liability for partial or complete failure to fulfill obligations under this agreement if the failure was the result of natural phenomena, the actions of external objective factors and other force majeure circumstances for which the parties are not responsible and to prevent the adverse impact of which they are unable to.

7.2. The party for whom such circumstances have occurred shall immediately notify the other party of the occurrence of these circumstances. The fact of the occurrence of these circumstances must be confirmed by a certificate from the relevant state body, which is sent by the party for which force majeure circumstances have occurred to the other party to this agreement immediately after receiving it.

8. PRIVACY

8.1. The terms of this agreement and agreements (protocols, etc.) to it are confidential and not subject to disclosure.

8.2. The parties take all necessary measures to ensure that their employees and agents do not inform third parties about the details of this agreement and its annexes without the prior consent of the other party.

9. DISPUTES RESOLUTION

9.1. All disputes and disagreements that may arise between the parties will be resolved through negotiations.

9.2. If disputes are not resolved during the negotiation process, disputes are resolved in the Arbitration Court of the city of .

10. FINAL PROVISIONS

10.1. In all other respects that are not provided for by this agreement, the parties are guided by the current legislation of the Russian Federation.

10.2. All notices and communications under this agreement must be sent by the parties in writing. Messages will be considered duly executed if they are sent by registered mail, by telegraph, teletype, telex, telefax, or delivered personally to the postal addresses of the parties with receipt against receipt.

10.3. This agreement and the transfer of property for trust management are subject to state registration in the manner prescribed by law. The contract is considered concluded from the moment of state registration. State registration costs are borne by

Under a property trust management agreement, one party (the founder of the management) transfers the property to the other party (the trustee) for a certain period of time in trust management, and the other party undertakes to manage this property in the interests of the founder of the management or the person specified by him (the beneficiary).

The transfer of property for trust management does not entail the transfer of ownership of it to the trustee.

A property trust management agreement is one of the types of property management. In addition to contractual property management, there is management based on the law (Article 1026 Civil Code). This is a new type of contract for domestic legislation.

Characteristics of the property trust management agreement: real; can be both paid and free of charge; mutual if it is reimbursable; can be both free and mandatory; can be both in favor of the founder of trust management, and in favor of the person appointed by him.

This agreement is regulated only by the Civil Code of the Russian Federation (Articles 1012–1026).

The founder of trust management of property may be:

Any owner of property (in relation to his property - Article 1014 of the Civil Code);
person authorized by law:
a) the body of guardianship and guardianship (in relation to the property of an incapacitated person);
b) arbitration court (in relation to the property of a person declared bankrupt);
c) the testator in relation to his property (by appointing an executor in his will - Article 1026 of the Civil Code);
d) authors of works of science, art, literature, as well as creators of objects related to copyright in relation to their property rights in relation to works created by them.

Only entrepreneurs, both collective (commercial legal entities) and individual, can act as a trustee of property management based on an agreement. In cases where trust management is based on the law, any citizens and non-profit organizations can act as a trustee, with the exception of institutions, state bodies and local governments (clauses 1, 2 of article 1015 of the Civil Code).

Any person appointed by the founder of the trust management, with the exception of the trustee (clause 3 of article 1015 of the Civil Code), can act as a beneficiary. Their number is not limited.

Under a property trust management agreement, one party (the founder of the management) transfers the property to the other party (the trustee) for a certain period of time in trust management, and the other party undertakes to manage this property in the interests of the founder of the management or the person specified by him (the beneficiary) (Article 1012 of the Civil Code RF).

The transfer of property for trust management does not entail the transfer of ownership of it to the trustee. When carrying out trust management of property, the trustee has the right to perform any legal and actual actions in relation to this property in the interests of the beneficiary, unless restrictions are provided for by law or an agreement with respect to certain actions for trust management of property.

Trust management of property is established in accordance with the law, including Art. 1026 of the Civil Code of the Russian Federation on the grounds:

- due to the need for constant management of the property of the ward in the cases provided for in Art. 38 of the Civil Code of the Russian Federation;
- on the basis of a will in which the executor of the will (executor) is appointed;
- on other grounds provided by law. These include, in particular:
- recognition of a citizen by a court as missing (Article 43 of the Civil Code of the Russian Federation);
- patronage (Article 41 of the Civil Code of the Russian Federation).

The trust management agreement can be both paid and free of charge (Article 1016 of the Civil Code of the Russian Federation).

The trust management agreement is real, since the fact of transfer of property is necessary for its conclusion. However, in some by-laws, the specified agreement is considered concluded from the moment of its signing (that is, it is considered as consensual).

The contract of trust management of property is urgent and is concluded for a period not exceeding five years. For certain types of property transferred for trust management, the law may establish other deadlines for which an agreement may be concluded.

In the absence of a statement by one of the parties to terminate the contract at the end of its validity period, it is considered extended for the same period and on the same conditions that were provided for by the contract (Article 1016 of the Civil Code of the Russian Federation).

The trust management agreement is bilateral, since both the trust manager and the founder of the trust management have rights and obligations.

According to Art. 1017 of the Civil Code of the Russian Federation, an agreement on trust management of property must be concluded in writing. The law does not require that the contract must be concluded in the form of a single written document. It is enough that the founder of the management and the trustee exchange documents by postal, telegraph, teletype, telephone, electronic or other communication, which makes it possible to reliably establish that the document comes from the party under the contract (clause 2 of article 434 of the Civil Code of the Russian Federation). To conclude a trust management agreement, a credit institution may publish general terms and conditions (public offer).

The contract for the trust management of real estate must be concluded in the form provided for the contract for the sale of real estate, i.e. drawn up in the form of a single document (Article 550 of the Civil Code of the Russian Federation).

The transfer of immovable property for trust management is subject to state registration in the same manner as the transfer of ownership of this property. State registration of trust management related to real estate is regulated by Federal Law No. 122-FZ “On State Registration of Rights to Real Estate and Transactions with It”. Failure to comply with the form of an agreement on trust management of property or the requirement to register the transfer of real estate to trust management shall entail the invalidity of the agreement.

According to paragraph 1 of Art. 1013 of the Civil Code of the Russian Federation, objects of trust management can be both movable and immovable property (enterprises and other property complexes, individual objects related to real estate), as well as securities, rights certified by book-entry securities, exclusive rights. It should be emphasized that the Civil Code of the Russian Federation does not provide an exhaustive list of objects of trust management.

With regard to property transferred to trust management, the law establishes a special legal regime, which is as follows:

1) the property transferred to trust management is separated from other property of the founder of management, as well as from the property of the trust manager. This property is reflected in the trustee on a separate balance sheet, and independent accounting is maintained for it. For settlements on activities related to trust management, a separate bank account is opened (clause 1 of article 1018 of the Civil Code);
2) he is not levied for the debts of the founder of the management. The exceptions are: a) recognition of this person as insolvent (bankrupt). In case of bankruptcy of the founder of the management, the trust management of this property is terminated and it is included in the bankruptcy estate (Article 1018 of the Civil Code of the Russian Federation); b) foreclosure on property transferred to trust management, encumbered with a pledge (clause 1, article 1019 of the Civil Code of the Russian Federation); c) subsidiary liability of the founder of the department in case of insufficiency of the property transferred for management to pay off debts on obligations to third parties (clause 3 of article 1022 of the Civil Code of the Russian Federation). In this case, the founder of the management has the right to demand, by way of recourse, compensation for the losses incurred by him from the trustee.

In paragraph 2 of Art. 1013 of the Civil Code of the Russian Federation establishes a provision according to which money cannot be an independent object of trust management, except as otherwise provided by law.

Such cases are established in Part 2 of Art. 5 of the Banking Law, according to which a credit institution has the right to exercise trust management of funds and other property under an agreement with individuals and legal entities. According to Art. 5 of Federal Law No. 39-FZ “On the Securities Market” “under the activity of managing securities, it is recognized that a legal entity, on its own behalf, for a fee, for a certain period of trust management of funds transferred to its possession ... funds intended for investment in securities; cash and securities received in the course of securities management”.

The transfer of securities into trust management is regulated by a separate article of the Civil Code of the Russian Federation (Article 1025).

Features of trust management of securities are determined by law. Laws regulating such features include: Federal Law No. 39-FZ “On the Securities Market”; Federal Law No. 111-FZ "On investing funds to finance the funded part of labor pensions in the Russian Federation"; Federal Law No. 152-FZ "On Mortgage Securities"; Federal Law No. 156-FZ "On Investment Funds".

Features of trust management of securities are also determined by by-laws: Instruction of the Bank of Russia No. 63 “On the Procedure for Carrying out Trust Management Operations and Accounting for These Operations by Credit Institutions of the Russian Federation”.

When transferring securities for trust management, provision may be made for the pooling of securities transferred for trust management by different persons. The powers of the trustee to dispose of securities are determined in the trust management agreement.

The parties under the trust management agreement are the founder of the trust management and the trust manager.

According to Art. 1014, the founder of the trust management is the owner of the property, and in the cases provided for in Art. 1026 of the Civil Code of the Russian Federation (on the basis of a will in which the executor of the will is appointed, as well as due to the need for constant management of the property of the ward), another person.

Trust management of property can be established only by the owner of this property. At the same time, it should be borne in mind that property may be owned by one person or two or more persons (see Chapter 16 of the Civil Code of the Russian Federation “Common Property”). Therefore, for example, the property of the spouses, belonging to them on the basis of common ownership, can be transferred to trust management.

The founder also has the right to act as the Russian Federation, its constituent entities, municipalities represented by the relevant government authorities (local self-government).

Other legal or natural persons who are not the owners of the property, as follows from Art. 1013 of the Civil Code of the Russian Federation can be founders only if this is expressly enshrined in law. For example, in accordance with Art. 5 of Federal Law No. 111-FZ “On investing funds to finance the funded part of labor pensions in the Russian Federation”, pension savings are the property of the Russian Federation. The founder of trust management of pension savings is the Russian Federation. The rights of the founder of trust management of pension savings belong to the Pension Fund of the Russian Federation (clause 3, article 18).

It should be borne in mind that according to Art. 1013 of the Civil Code of the Russian Federation, the holder of the right of economic management or operational management cannot act as a founder.

A trustee can be both an individual entrepreneur and a commercial organization.

The exception is unitary enterprises, which, in accordance with Art. 1015 of the Civil Code of the Russian Federation cannot be trustees.

In cases where trust management of property is carried out on the grounds provided for by law, the trustee may be a citizen who is not an entrepreneur, or a non-profit organization, with the exception of an institution.

In addition to those indicated, there are other restrictions: state bodies, local governments (part 2 of article 1015 of the Civil Code of the Russian Federation), as well as beneficiaries under a property trust agreement (part 3 of article 1015 of the Civil Code of the Russian Federation) cannot be trustees.

The law also establishes additional requirements for trustees. Thus, trust management of the funds of the Pension Fund of the Russian Federation is allowed only to management companies that have a license to manage investment funds, mutual investment funds and non-state pension funds. Art. 39 of Federal Law No. 39-FZ “On the Securities Market” establishes a provision according to which all types of professional activities in the securities market (including trust management of securities) are carried out on the basis of a special permit - a license issued by the federal executive body for the securities market (with the exception of state corporations, which are entitled to operate in the securities market not on the basis of a license, but on the basis of a federal law). This provision also applies to credit institutions engaged in professional activities in the securities market.

The main rights of a trustee include:

– exercising the powers of the owner in relation to the property transferred to trust management. The trust manager shall dispose of immovable property only if it is expressly provided for by the trust management agreement;
– commission of any legal and actual actions in relation to the property transferred to trust management in the interests of the beneficiary (restrictions may be established by law);
– filing non-commissioned (to eliminate any violations of one’s right, even if these violations were not connected with the loss of possession) and vindication (on the recognition of one’s right to property, on the recovery of property from someone else’s illegal possession) claims to protect the rights to property;
– the possibility of instructing another person to perform on behalf of the trustee the actions necessary to manage the property. These actions of the trustee are possible if it is: a) provided for by the property trust management agreement, or b) the founder agrees in writing, or c) the trust manager is forced to act in this way due to the prevailing circumstances in order to ensure the interests of the founder of the management or the beneficiary and does not have this opportunity to receive instructions from the founder of the management within a reasonable time. The trustee is responsible for the actions of the elected attorney;
- receive remuneration stipulated by the property trust management agreement, as well as reimbursement of the necessary expenses incurred by him during the property trust management, at the expense of income from the use of this property;
– other rights.

The rights acquired by the trust manager as a result of actions for trust management of property are included in the composition of the property transferred to trust management.

Obligations arising as a result of such actions of the trustee shall be discharged at the expense of this property.

To protect the rights to property held in trust management, the trustee has the right to demand any elimination of the violation of rights, including the owner has the right to reclaim his property from someone else's illegal possession (Article 301 of the Civil Code of the Russian Federation), to reclaim property from a bona fide purchaser (Article 302 of the Civil Code Russian Federation), to demand the elimination of any violations of his right, even if these violations were not connected with deprivation of possession (Article 304 of the Civil Code of the Russian Federation), etc.

Key Responsibilities of a Trustee:

– act in the interests of the founder of the management or the beneficiary;
- personally manage the property transferred to trust management (part 1 of article 1021 of the Civil Code of the Russian Federation). Exceptions are established in Part 2 of Art. 1021 of the Civil Code of the Russian Federation;
- to maintain the entrusted property in proper condition;
- submit to the founder of the management and the beneficiary a report on their activities within the time limits and in the manner established by the agreement on trust management of property;
- after the termination of the contract, return the property to the founder of the management;
- Other responsibilities.

Thus, the trust manager, accepting property for trust management, is obliged to exercise the powers of the owner without acquiring the right of ownership to this property.

In case of improper performance of his duties, the trustee shall be liable, in particular:

– compensates the beneficiary for lost profit during the time of trust management of property;
– reimburses the founder of the management for lost profits and losses caused by the loss or damage to property, taking into account its natural wear and tear, unless he proves that these losses occurred as a result of force majeure or actions of the beneficiary or the founder of the management;
– is liable with its property in the event of debts for obligations arising in connection with the trust management of property, if the property transferred to the trust management was not enough to pay off the debts;
- provides, if it is provided for by the contract of trust management of property, a pledge to secure compensation for losses that may be caused to the founder of the management or the beneficiary by improper performance of the contract of trust management.

The trust manager makes transactions with the property transferred to trust management on his own behalf, indicating that he acts as such a manager. This condition is considered to be met if, when performing actions that do not require written registration, the other party is informed of their commission by the trustee in this capacity, and in written documents, after the name or title of the trustee, a note “D.U.” is made.

In the absence of an indication of the action of the trustee in this capacity, the trustee is obliged to third parties personally and is liable to them only with the property belonging to him.

The main responsibilities of the founder of trust management:

- pay remuneration to the trustee;
– reimburse the trustee for the expenses incurred in managing the property.

Article 1024 of the Civil Code of the Russian Federation contains the grounds for terminating an agreement on trust management of property. The contract is terminated due to:

- death of a citizen who is a beneficiary, unless otherwise provided by the contract;
- liquidation of a legal entity - a beneficiary, unless otherwise provided by the agreement;
– the refusal of the beneficiary to receive benefits under the contract, unless the contract provides otherwise;
- death of a citizen who is a trustee, recognition of his incapacity, limited capacity or missing, as well as recognition of an individual entrepreneur as insolvent (bankrupt);
- refusal of the trustee or the founder of the management from the implementation of trust management due to the impossibility for the trustee to personally carry out trust management of property;
- refusal of the founder of the management from the contract for other reasons, subject to the payment to the trustee of the remuneration stipulated by the contract;
– declaring insolvent (bankrupt) a citizen-entrepreneur who is the founder of the management.

Instruction No. 63 “On the Procedure for Carrying out Trust Management Operations and Accounting for These Operations by Credit Institutions of the Russian Federation”, approved by Order No. 02-287 of the Bank of Russia, establishes (clause 6.21) that the agreement terminates for credit institutions engaged in trust management in case of revocation of the banking license from the credit institution - trustee and/or cancellation of the license of a professional participant in the securities market, which gives the right to carry out activities in trust management, as well as if there are other grounds for termination of trust management agreements of the credit institution - trustee with all the founders of the General Fund for Banking Management (OFBU), provided for by the legislation of the Russian Federation or a trust management agreement.

In case of refusal of one party from the agreement on trust management of property, the other party must be notified of this three months before the termination of the agreement. The contract may provide for a different notice period.

Upon termination of the trust management agreement, the property held in trust management shall be transferred to the management founder, unless otherwise provided by the agreement.

Property Management Agreement

As in progress commercial activities, and in many other cases, it may be necessary to draw up an agreement on trust management of property. More details about this agreement will be discussed in this article.

A property trust management agreement is drawn up in cases where the owner transfers his property to a person who will manage it in the interests of the owner or another entity. Typically, property is transferred to management for its more efficient use and the greatest benefit. Sometimes an object goes into trust management if there are temporarily no persons obliged to take care of it (for example, until the heirs enter into inheritance rights, a notary has the right to conclude an agreement on trust management of property).

The parties to the agreement include:

1. The founder of management is the owner of the object.
2. Trustee - an entity that assumes the responsibility for property management.
3. Beneficiary (optional figure) - the person in whose interests the object is used. In a situation where it is not specified in the contract, the founder of the management receives the profit from the use of the object.

As a general rule, a trustee can be an individual with the status of an individual entrepreneur or a commercial organization. This rule is quite logical, since the activity of the manager is entrepreneurial. If the contract of trust management of property is concluded on the grounds specified in the law, then there is no such restriction.

Those objects from which it is possible to derive profit as a result of their management are transferred to trust management. Management involves a variety of legal and factual actions performed for profit (for example, renting out one part of the land and growing agricultural products on another).

As a rule, a property trust agreement is drawn up for the management of real estate (trade, office space, etc.) or a property complex (for example, an enterprise). Among movable things, securities are most often transferred to management. The funds themselves cannot go into trust, but if they are integral part enterprises, then go into management along with other components of this property complex.

It is possible to transfer pledged things for trust management, but this will not prevent the pledgee from recovering the amount of the debt at the expense of such property. In this regard, the owner is obliged to notify the manager that an encumbrance in the form of a pledge has been imposed on the property coming to him. If he does not do this, then the manager has the right to terminate the contract of trust management of property through the court and receive compensation equal to the annual remuneration.

The norms of the law determine that the contract of trust management of property is drawn up strictly in writing. If this condition is not met, the agreement between the owner and the manager will be considered invalid.

The execution of a transaction has its own characteristics in cases where real estate is transferred to management. The rules for drawing up a real estate management agreement are similar to the rules established for the case of its sale.

In particular, a property trust management agreement should be registered with Rosreestr if the following are transferred to management:

residential premises;
company.

In other cases, when transferring to a real estate trustee, it is not the agreement itself that is registered, but only the fact of the transfer of property.

This agreement has some similarities with other deals. Thus, within the framework of an agency agreement, the agent, as well as the trustee, performs various actions (actual and legally significant) in the interests of the other party. In a lease relationship, the tenant uses someone else's property, including for profit. The manager does the same.

However, the contract of trust management of property has some features:

1. Management is carried out for a specifically agreed period.
2. The manager always performs transactions with property on his own behalf (as opposed to an agent who can act on behalf of the customer).
3. The manager does not act in his own interests (unlike the tenant), but in the interests of the owner of the object or the beneficiary.
4. Unlike an agent who performs specific instructions for the customer, the trustee is free in his actions. He independently chooses the best ways to manage property and implements them.
5. An object received in trust management must be separated from other property of the owner and manager. This object cannot be collected for the debts of its owner (with the exception of the pledged property and the case of bankruptcy).

The Civil Code clearly lists the conditions that must be reflected in the text of the agreement. Without their agreement by the parties, the contract of trust management of property is considered simply not concluded.

So, the essential conditions are:

About objects passing to the manager (compound property is transferred according to the inventory);
the entity in whose interests the contract will be implemented;
the amount of remuneration that the owner will pay to the manager (if remuneration is not expected, then the text of the agreement should directly indicate its gratuitousness);
duration of the agreement (maximum - 5 years).

The rest of the terms of the contract of trust management of property are not mandatory.

However, in order to avoid disagreements and ambiguities, it is worth reflecting in the agreement:

The presence of restrictions on the performance of certain transactions with property (for example, a ban on its alienation);
the possibility of disposing of an immovable object;
the frequency of presentation by the manager of a report on his work;
the right of the manager to entrust the performance of certain actions to another entity;
reasons for early termination of the contract;
the procedure for compensating the manager's expenses incurred by him in the performance of his obligations;
rights and obligations of the parties;
liability of the parties in case of breach of contract.

For improper performance of their duties (in particular, poor-quality property management), the manager bears property liability.

In this case, he must compensate:

To the beneficiary - lost profit;
owner - damage caused by damage to property.

The manager is released from liability if he can prove that the damage was caused by force majeure or as a result of the actions of the owner or beneficiary.

If the manager, when concluding transactions with third parties, goes beyond the limits of authority established for him, he will be responsible for such transactions on his own. However, in this case, the founder of the management will need to prove that third parties knew (or should have known) that the manager goes beyond the established limits.

In other cases, the costs of transactions concluded by the manager in the process of managing the facility are paid at the expense of such property. If the value of this property is not enough to cover all debts, the property of the manager is subject to collection. If, in this case, it is not possible to fully repay the debts, the property belonging to the founder of the management is collected.

Upon the expiration of the term of the property trust management agreement, the relationship between the parties shall be terminated if at least one of the parties so declares. In such a case, the object must be returned to its owner. If neither the owner nor the manager wants to terminate cooperation, the contract is considered extended for the same period.

In addition, the relationship under the contract of trust management of property is terminated:

If the beneficiary refuses to receive profit under the agreement or in the event of his death (unless the agreement stipulates that in this case the right to receive profit passes to another person);
circumstances arise that prevent the manager from personally fulfilling the contract, if at the same time he (or the founder) intends to terminate cooperation;
adoption by the owner of a decision to terminate the contract (in this situation, he is obliged to pay the manager the remuneration specified in the agreement);
bankruptcy of the founder of the management, having the status of an individual entrepreneur;
in case of recognition of the manager as fully or partially incompetent, declaring him bankrupt, as well as in case of death.

home management agreement

The law (Article 162 of the LC RF) provides for what is needed. Realizing the general necessity of this agreement, the organizations managing the houses begin painstaking work to find the form of this most important document, fill it out and print it out according to the number of owners. After an attempt to comply with all the requirements and recommendations, such an agreement will be very voluminous (SPS GUARANTOR, for example, recommends a management agreement on 22 sheets, with 24 annexes).

The purpose of this labor-intensive activity is to conclude a management contract with each owner. I wonder if many houses have achieved it? What are the consequences if the contract was not signed by one owner, or 10%, or 90%? Maybe the goals are misunderstood?

Let's get back to the law. In paragraph 1 of Art. 162 of the Housing Code of the Russian Federation states that an apartment building management agreement is concluded with each owner of the premises, but on the terms specified in the decision of the general meeting (when choosing a managing organization at a general meeting). In the same place, below - the owners of the premises in this house, having more than 50% of the votes, act as one side of the contract being concluded.

Most likely, civil scientists understand everything. Let's try to parse for others:

1. The general meeting (50% of the owners + 1 vote) has the right to choose the managing organization and determine the terms of the house management agreement. These conditions will be obligatory for each owner. It is impossible to change the contract approved by the meeting (even based on the reasonable wishes of a particular owner; even to eliminate obvious inaccuracies). This requires a new decision of the general meeting. Regardless of the signing for any of the owners, this agreement is mandatory. Has there been an answer to the question: why sign it with everyone?
2. Management agreement - an agreement with many persons on the side of the owners (they act like customers for the maintenance and repair of common property). Such customers are those more than 50% who decided to approve the contract at the general meeting. Are the remaining owners (who voted against or did not participate in the meeting) a party to this agreement? A negative answer is impossible - the approved conditions apply to everyone.

It turns out that the position of the owners is no different:

Signatories of the management agreement in the form of a separate document;
- those who did not sign the contract, but voted for its terms at the general meeting (they, by virtue of a direct indication of the law, form a multitude of persons on the side of the customer);
- those who did not vote and did not sign - they also have the right to demand the fulfillment of the terms of the contract and are themselves obliged to obey them.

This means that the individual signing of the contract with each owner does not entail anything. And this is reasonable - the norms on the management of apartment buildings provide for the subordination of all owners to the decision of the general meeting and the equality of the terms of the management contract for all. Simply, if the majority of the owners approved the conditions under which the managing organization will work in the house, this decision is sufficient for the emergence of mutual rights and obligations of the managing organization and all owners.

Now there is only one clear reason for the managing organization to conclude a management agreement with each: it is possible to collect debt under such agreements in the order of writ proceedings. However, by Decree No. 7, the Plenum of the Supreme Court of the Russian Federation submitted to the State Duma a draft law on amendments to the Code of Civil Procedure of the Russian Federation, according to which any arrears in payment for housing and utilities can be collected by order. If such a law is adopted, the only reason to sign management contracts with each owner will disappear.

Organization Management Agreement

According to paragraph 1 of Art. 1012 of the Civil Code of the Russian Federation, a trust management agreement for any property (including an enterprise) is an agreement according to which the owner transfers it for a certain period to a qualified specialist who is able to carry out management activities aimed at using this property to achieve the goals set by the owner. This is usually done to maximize profits.

The conclusion of such a transaction does not entail the transfer of ownership of the enterprise from its main owner to the person exercising management. At the same time, the functionality of the manager is quite extensive.

In particular, as part of the performance of its obligations, it may:

Use any resources of the company, independently determining their volume and application procedure, in order to achieve the goals established by the concluded agreement;
enter into any transactions on behalf of the company, knowingly notifying counterparties that he is a trustee, and not the owner of the business.

The transfer of authority to manage the company to a third party implies that he has special knowledge and skills. This is due to the fact that the efficient operation of production facilities is a very difficult task, which involves monitoring their physical condition, establishing contacts with counterparties and fulfilling obligations to them, working with government and banking structures, etc.

The circle of entities that can act as a manager is quite clearly defined by paragraph 1 of Art. 1015 of the Civil Code of the Russian Federation, according to which only legal entities or individual entrepreneurs can perform the duties of managing an enterprise.

According to the provisions of Art. 1173 of the Civil Code of the Russian Federation, an enterprise that is part of the estate passes into trust management to a notary, who at the same time becomes a trustee. The management of an LLC in this case lasts until the heirs of the deceased owner of the enterprise enter into their rights (as a general rule, this period is 6 months).

The need to transfer the enterprise to the manager is due to the fact that such property needs constant operation and control, which the heirs cannot carry out on their own due to their lack of ownership of the company's assets. The termination of the enterprise’s activities for six months entails a number of negative consequences, including the loss of market share, the need to pay a penalty under previously concluded contracts, obligations under which cannot be fulfilled, as well as the lack of income and the occurrence of serious losses. In the event that the inheritance of the enterprise is carried out not by law, but by will, not a notary, but another person indicated by the testator in his will, may act as a manager.

The amount of the maximum remuneration that can be paid to a notary acting as the manager of an enterprise is limited by the legislator: according to par. 2 of the Decree of the Government of the Russian Federation “On approval ...” No. 350, it cannot exceed 3% of the estimated value of the property transferred for management.

The enterprise management agreement involves the transfer of authority to manage the company to a third party. The legislation covers only a few features of the conclusion of such an agreement, therefore, its preparation must be taken very carefully.

Typically, the parties to an enterprise management agreement are a representative joint-stock company who owns this enterprise, and a representative of the management company.

The enterprise management agreement is drawn up in free form. It can fix all, without exception, the conditions for the transfer of management of the enterprise. In addition, it is mandatory in the contract to indicate the addresses of the parties concluding the contract, their details, the scope of the rights to manage the company, obligations, the cost of the services of the management company and the payment procedure. It is also necessary to indicate the conditions for early termination, extension or amendment of the contract.

Conclusion of a management agreement

A managing organization is a legal entity, regardless of the organizational and legal form, as well as an individual entrepreneur who manages an apartment building on the basis of an apartment building management agreement.

Such a definition of a managing organization is contained in the Rules for the provision of public services to citizens, approved by Decree of the Government of the Russian Federation No. 307 (as amended by Decree of the Government of the Russian Federation No. 580).

The activities of managing organizations are regulated by the Housing Code of the Russian Federation.

The method of managing an apartment building is chosen at a general meeting of owners of premises in an apartment building, which is established by paragraph 3 of Article 161 of the Housing Code of the Russian Federation, and the decision of the general meeting is binding on all owners of premises in an apartment building.

By virtue of Article 209 of the Civil Code of the Russian Federation, paragraph 2 of Article 161 of the Housing Code of the Russian Federation, the choice of a method for managing an apartment building is the exclusive right and obligation of homeowners.

Apartment building in accordance with paragraph 9 of Article 161 Housing Code The Russian Federation can be managed by only one managing organization.

The management agreement is concluded in writing by drawing up one (single) document signed by the parties.

When a management organization is chosen by the general meeting of owners, a management agreement is concluded with each of them on the terms specified in the decision of the general meeting.

By virtue of paragraph 2 of Article 162 of the Housing Code of the Russian Federation, under an apartment building management agreement, one party (managing organization), on the instructions of the other party (owners of premises in an apartment building), undertakes to provide services and perform work on proper maintenance and repair within an agreed period for a fee common property in such a house, provide utility services to the owners of premises in such a house and persons using premises in this house, carry out other activities aimed at achieving the goals of managing an apartment building.

In the management agreement on the basis of paragraph 3 of Art. 162 of the LC RF, the following data must be indicated:

The composition of the common property of the house, in respect of which management will be carried out, the address of the house;
- a list of services and works for the maintenance and repair of common property in the house, the procedure for changing this list, as well as a list of utilities provided by the managing organization;
- the procedure for determining the price of the contract, the amount of payment for the maintenance and repair of residential premises and fees for utilities, the procedure for making such a fee;
- the procedure for exercising control over the fulfillment by the managing organization of obligations under the management agreement.

When concluding an agreement, the owners of the premises must remember that they are simultaneously co-owners of the land plot under such a house and the common property of the house (for example, roofs, an elevator, flights of stairs, etc.).

There is no need for any separate documentation of ownership.

So, if there is an advertisement on the wall of the house, a shop in the common basement, equipment of mobile operators on the roof of the house, and a stall selling vegetables and fruits on the common house territory, the property owners need to urgently instruct the management company to figure out who, where and how much money is paid for the rent of common property.

These funds should go to the general cash desk and be spent on general needs for the repair and maintenance of an apartment building.

It should be noted that under the procedure for determining the price of the contract, according to the explanations given in the letter of the Ministry of Regional Development of Russia N 6174-AD / 14, one should understand the wording of the procedure (method) for determining (calculating) the total cost specified in the contract in accordance with subparagraph 2 of paragraph 3 of article 162 of the Housing Code RF services, work on the maintenance and repair of common property in an apartment building and utilities throughout the entire term of the management agreement.

The procedure for determining the amount of payment for the maintenance and repair of residential premises should be understood as the wording of the procedure (methodology) for determining (calculating) the cost of services and works for the maintenance and current and major repairs of common property specified in the contract in accordance with subparagraph 2 of paragraph 3 of Article 162 of the Housing Code of the Russian Federation in an apartment building.

The procedure for determining the amount of payment for utilities should be understood as an indication in the management agreement of the procedure for determining and changing the amount of payment for utilities using regulated tariffs for utilities and sanitation services in accordance with paragraph 13 of Article 155 and Article 157 of the Housing Code of the Russian Federation, as well as the norms of section III and VII of the Rules for the provision of public services.

When concluding a contract, there should be no so-called “dark spots”. Let's take a simple example.

So, answering the question of the owners of residential premises about payment for certain additional services on receipts, the management company refers to the clause of the contract, which reads as follows: “... the management company has the right to provide other services and perform other work that is not included in the approved list of services”, by the way, clearly stipulated by the same agreement. And there is a link to one more clause of the contract. Let's quote verbatim as an example. “The costs associated with the performance by the managing organization of work not specified in this contract that arose for objective reasons ... are paid by the owners additionally.”

Here is the wording. Under such and similar formulations in the city of Tyumen, it is "fashionable" to include payments, they sometimes reach up to 200-250 rubles per month from an ordinary two-room apartment (and they are taken from a square meter of housing) for the removal of ... snow. The winter was really snowy. But the owners (based on the contract considered as an example) did not give the management company the authority to export snow, and whether it was exported or not, it is not always immediately possible to determine, this requires special recording and reporting. There are, for example, a number of city management companies that informed residents in advance - remove the transport, cleaning and snow removal will be done tomorrow.

So, once again we repeat the important idea!

By virtue of paragraph 3 of Article 162 of the Housing Code of the Russian Federation, the contract for managing an apartment building must indicate - the liver of services and work on the maintenance and repair of common property in an apartment building, the procedure for changing such a list, as well as a list of utilities provided by the managing organization.

Everything is very clear.

It is impossible to take payments for yesterday's snow removed today, if the owners of the premises of the apartment building have not authorized the managing organization to carry out such work.

Moreover, it is necessary to deal with the question - and not at the expense of the municipal budget, snow removal was carried out in the local area and whether the management company is trying to take payment for those services that it itself did not provide and did not organize.

The contract should not cause ambiguous understanding. It is like a power of attorney issued to another person for the right to dispose of our funds or property. In the management contract, everything must be exhaustively spelled out clearly and specifically.

The contract is concluded for a period of not less than one year and not more than five years. If the managing organization is selected based on the results of an open tender, then the management contract with such an organization is concluded for a period of not less than one year and not more than three years.

It should be noted that the management method can be chosen and changed at any time based on the decision of the general meeting, i.e. the legislator granted the owners the right to change the way the house was managed at any time.

If the owners of an apartment building consider the previously chosen method of management to be insufficiently effective, then they have the right to change it by their decision.

And the moment is now the most suitable, since, by virtue of paragraph 11 of Article 162 of the Housing Code of the Russian Federation (unless other terms are established by the contract), the managing organization during the first quarter of the current year must submit to the owners of premises in an apartment building a report on the implementation of the management contract for the previous year.

Company Management Agreement

The management agreement is often used for the purpose of tax optimization in connection with which the tax authorities pay special attention to it. However, for some companies, this agreement is really necessary for management purposes. subsidiaries(organizations included in the holding), then the question arises what tax risks entails the conclusion of a management agreement.

Risk No. 1 - recognition of expenses as economically unjustified.

The expenses for the services of the management company may be recognized by the tax authorities as economically unjustified. Often, auditors believe that management costs have no business purpose and are only aimed at minimizing tax payments.

For example, according to the tax authorities, the economic unreasonability is evidenced by a change in the cost of services, without changing the terms of reference.

Definition of the Supreme Arbitration Court of the Russian Federation No. 11198;
Definition of the Supreme Arbitration Court of the Russian Federation No. 7590;
Definition of the Supreme Arbitration Court of the Russian Federation No. 7083;
Definition of the Supreme Arbitration Court of the Russian Federation No. 4417;
Decree of the Federal Antimonopoly Service of the Volga District in case No. A57-12940;
Decree of the FAS of the East Siberian District No. A78-3156 / 07-F02-9858.

In my opinion, in order to avoid the tax risk of recognizing expenses as economically unjustified, it is worth prescribing in the contract that the purpose of concluding a contract for the provision of management services is to increase the income of the managed company. Then it will be difficult for the inspectors to prove the economic groundlessness of these expenses, because according to the norms of the Tax Code of the Russian Federation (Article 252 of the Tax Code of the Russian Federation) and the established judicial practice, expenses are economically justified when they are aimed at generating income.

Risk No. 2 - recognition of expenses as not economically feasible.

The expenses for the services of the management company may be recognized by the tax authorities as economically inexpedient.

For example, if Managed Daughter LLC had revenues of 350 million rubles, and after the transfer of management functions next year to Manage Subsidiaries LLC, they will amount to 349 million rubles. Most likely, the tax authorities will consider the cost of management services not economically feasible.

Moreover, if the profit of the managed company decreases, but if management costs are removed from the profit, then it will be higher, then the tax authorities will also consider the costs not economically feasible.

Judicial practice on this risk: Resolution on case No. A68-3797/06-AP-255.

With regard to the tax risk under the management agreement - the recognition of expenses as not economically feasible, I note that the tax authorities have no legal grounds for recognizing the expenses incurred as economically unjustified.

Risk #3 - being accused of setting up a hidden dividend scheme.

I could not find any judicial practice on this risk (but it seems to me that it is obligatory, it should be), however, in my opinion, according to the management agreement, it is logical for the tax authorities in the event of profitability of a subsidiary that has concluded a management agreement with the parent company to file a tax claim in creation of a hidden dividend payment scheme.

In order to level this tax risk, the cost of management services should be set at an adequate level, i.e. their cost should not be 90% of the revenue of the managed organization.

Risk No. 4 - deviation of the cost of services under the contract from the level of market prices for similar services (Article 40 of the Tax Code of the Russian Federation).

This risk intersects with the previous risk, in order to level it, the price must also be adequate. I couldn't find any case law on this issue either.

I note that management services are unique and Article 40 of the Tax Code of the Russian Federation cannot be applied. At the same time, the cost of services billed to a managed organization should not exceed hundreds of times the cost of these services.

Risk No. 5 - the costs are not commensurate with the results obtained.

The tax authorities often make tax claims that the costs are not commensurate with the results obtained, the management costs deviate greatly from the previous salary costs CEO.

Judicial practice on this risk:

Decree of the Federal Antimonopoly Service of the Volga-Vyatka District No. A11-4426 / 2003-K2-E-1961;
Decree of the Federal Antimonopoly Service of the Volga-Vyatka District No. A11-762 / 2005-K2-21 / 48.

In order to avoid this tax risk, it is necessary to establish the terms of reference of the management company significantly different from those of the former CEO. Then it would be unreasonable to compare their prices.

Risk No. 6 - the content of the MC services is not disclosed.

A very common claim of tax authorities under management agreements is that the primary documents do not contain information about the services of the management company.

Judicial practice on this risk:

Decree of the Federal Antimonopoly Service of the East Siberian District No. A74-807 / 05-F02-6186 / 05-S1 and No. A10-4653 / 05-F02-6684 / 05-S1;
Resolution of the Federal Antimonopoly Service of the North-Western District in case N A42-4459;
Resolution on case N A40-18689 / 08-75-55 of the Federal Antimonopoly Service of the Moscow District.

To avoid the risk of such tax claims, it is recommended to disclose (describe) in detail the list of services provided by the management company in the primary documents. It is also necessary to describe in detail in the contract all the actions of the management company and the mechanism for billing for their implementation.

The management company is recommended to issue the maximum number of invoices it has paid to the managed companies. To do this, each document must be targeted, that is, contain a link to one of the legal entities in whose favor certain operations were carried out. Thus, the management company's own expenses are reduced, only general expenses remain (for example, the sales department serving the entire holding). It is more difficult to confirm their validity, but if most of the expenses were transferred to managed companies, then general business expenses are not so significant in comparison with them, they, as a rule, do not arouse the interest of tax inspectors.

Risk number 7 - ineffective management.

It happens that the inspectors are "drifted on the corners" and they remove the costs due to inefficient management, i.e. evaluating the final result, which the taxpayer could not have known at the time of signing the management agreement.

Judicial practice on this risk: Decree of the Federal Antimonopoly Service of the West Siberian District No. Ф04-8885 (20013-А27-3).

In my opinion, this is a completely subjective claim of the tax authorities, which is not based on the provisions of the Tax Code of the Russian Federation. The tax authorities cannot verify the effectiveness of management. What matters is the intention to earn money.

Risk #8 - Deterioration financial indicators.

As in the previous risk, the management of the Management Company may not always bear fruit, and sometimes even worsen the financial situation. The tax authorities also put this at the forefront and remove costs.

Judicial practice on this risk: Decree of the Federal Antimonopoly Service of the North-Western District No. A42-13350 / 04-20.

Same as previous claim. The economic feasibility of expenses is determined not by the actual receipt of income for a specific period, but by the direction of expenses for generating income.

Risk #9 - Interdependence.

The inspectors can remove the costs, under the management agreement, mainly based on the fact that the parties to the transaction are interdependent persons.

Judicial practice on this risk: Resolution of the Federal Antimonopoly Service of the North-Western District in case N A42-918.

The interdependence of the company and the management company cannot be grounds for recognizing the company as an unscrupulous taxpayer.

Thus, the issue of interdependence comes down to the application of Article 40 of the Tax Code of the Russian Federation, as I said earlier.

Operational Management Agreement

Under an operational management agreement, municipal or federal property is transferred to the management of legal entities to conduct production activities.

The organization that received the property owns it on the basis of the right of operational management, that is, it uses it for the purposes of its production and economic activities within the framework of the current legislation, the tasks of the owner and the purpose of the property.

Property received for operational management cannot be sold, donated or pledged, invested in the authorized capital of another legal entity.

In addition, the owner has the right to confiscate property that has been unduly transferred or used for other purposes. The seized property is used by the owner at his own discretion.

Property received for operational management can be leased out only with the consent of the owner.

An agreement on the transfer of municipal property to a legal entity for operational management is concluded on the basis of a resolution of the head of the municipality.

An operational property management agreement is concluded between the owner and a person capable of effectively using the transferred property.

The data of the parties to the contractual relationship are entered into the contract, in addition, it is indicated:

1. Basic information about the transferred property (name, location address, technical characteristics);
2. The value of the transferred property is indicated, at which it will be taken into account in the balance sheet of the party that received the property;
3. The rights of a legal entity that apply to property;
4. Obligations of the parties to the contractual relationship;
5. Duration of the contract;
6. Conditions for making changes and additions to the contract;
7. Conditions for early termination of the contract;
8. Details and signatures of the parties, sealed.

The agreement is accompanied by an act on the transfer and acceptance of property, which indicates a complete list of objects transferred for operational management, with a description specifications, condition and value of the property.

If the premises were transferred to operational management, then a copy of the floor plan of the building in which the transferred premises are located is attached to the contract. If the entire building is transferred to operational management, then a plan of the entire building and the land plot on which it is located is attached.

An operational property management agreement is mandatory for state registration if the subject of the agreement is real estate.

The right to operational management of real estate arises from the organization only after state registration.

The property received for operational management is reflected in the balance sheet of the enterprise at the cost indicated in the resolution and in the contract. Depreciation is accrued on property received for operational management in the generally accepted manner.

Entrust the preparation of a draft agreement for the operational management of municipal (federal) property to qualified lawyers. Their knowledge and experience in drawing up the contract will help to take into account all the norms of the current legislation, which will save you from the occurrence of possible conflict situations during the period of the contractual relationship.

Termination of the management contract

In accordance with the requirements of the Housing Code of the Russian Federation, the method of managing an apartment building is chosen at a general meeting of owners of premises in an apartment building and can be chosen and changed at any time based on its decision.

According to Part 2 of Article 162 of the Housing Code of the Russian Federation, the change and (or) termination of the contract for managing an apartment building is carried out in the manner prescribed by civil law. From the meaning of the norms of civil law providing for a unilateral refusal to perform the contract, it follows that the customer's refusal to perform the contract is possible at any time: both before the start of the service, and in the process of providing the service.

Since the right of the parties (both the contractor and the customer) to unilaterally refuse to perform the contract for the provision of services for compensation is established by Article 782 of the Code, it cannot be limited by agreement of the parties. Furthermore, in accordance with Art. 32 of the Law "On Protection of Consumer Rights", the requirements of which also apply to legal relations in the field of providing services for the proper maintenance and repair of common property in an apartment building, the consumer has the right to refuse to execute the contract for the performance of work (provision of services) at any time, subject to payment to the contractor expenses actually incurred by him related to the fulfillment of obligations under this agreement.

Thus, a systematic interpretation of the norms of civil and housing legislation allows us to conclude that the contract for the management of an apartment building, by its legal nature, is a special type of contract, in respect of which a special regime applies. legal regulation. Such an agreement may be terminated unilaterally at the initiative of the owners of the premises on the grounds established by law, namely part 8.2 of Article 162 of the Housing Code, as well as in cases determined by agreement of the parties.

For example, in a number of agreements concluded between management companies and residents, there is a condition providing for the possibility of terminating such an agreement unilaterally at the initiative of the owner if the general meeting of the Owners of the premises of an apartment building decides to choose a different method of management or another management organization, with notification not later than 2 months by providing a copy of the minutes of the decision of the general meeting of owners.

However, it should be clarified that since contractual legal relations for the management of residential buildings have arisen between the owners of the premises and the Management Companies, then notices of refusal to execute the relevant agreements on the grounds established both by the requirements of the Housing Code of the Russian Federation and management agreements can only be made by the owners of the premises as a party to such agreements, and not as a newly elected management company.

Management agreement with the management company

For owners in an apartment building, it is important not only to choose a management method at a general meeting, but also to seriously discuss and then approve the text of the agreement on managing an apartment building, which in the future the management company will have to conclude with each apartment owner. In accordance with the Civil Code of the Russian Federation, contracts are binding. If a citizen has assumed certain obligations, then any court will come to the conclusion that this is how it should be. Therefore, it is very important for the owners of apartment buildings on what conditions they entered into an agreement with the management company.

The contract for the management of an apartment building must be concluded in accordance with Art. 162 ZhK RF:

It must contain the following items:
the composition of the common property of the house;
a list of works and services for the maintenance and repair of housing that will be provided; Criminal Code, as well as the procedure for changing this list;
the procedure for determining the price of the contract, the amount of payment for the maintenance and repair of housing;
the responsibility of the parties;
the procedure for monitoring the fulfillment by the management company of its obligations under the contract;
reporting of the Criminal Code on the implementation of the contract.

Sometimes in an apartment building management agreement, indicating the composition of the common property, they write - “according to the technical passport for the house”, then it turns out that there is no technical passport. Here reference is made to the Decree of the Government of Art. 36 LCD RF.

They also offer a list of works and services for the maintenance and current repair of housing, according to the completed list of works and services.

You should also pay attention to whether it is indicated in the contract that the list of works and services is an Appendix to the contract. If not, no one is obligated to follow this list.

One of the most important points in the contract is the price of the contract, payment for the maintenance and repair of housing.

According to the new Housing Code of the Russian Federation, the amount of payment for utilities (water, electricity, heat, gas) is set by local governments and regulated by the Federal Law. A fee for the maintenance and repair of housing in accordance with Art. 156 clause 7 of the Housing Code of the Russian Federation is determined at a general meeting of homeowners, taking into account the proposals of the Criminal Code. That is, this price is negotiable and can be different from 9 rubles. per 1 sq.m. up to 14 rubles, depending on the condition of the house and the list of services and works for the maintenance and current repair of the house. If the contract states that the price will change, it is desirable that it be indicated by how much% and how often. For example, once a year by 15% or until the end of the year remains unchanged.

It is advisable to include a clause in the contract stating that the money for maintenance and current repairs would be accumulated on the personal account of the apartment building.

You should also pay attention if a capital repair fee is introduced under the contract, as prescribed in the contract, where the money will be accumulated, how it will be spent and controlled. If they accumulate on a personal account at home, but are spent as they accumulate, most likely we will not be able to control the flow of money. This means that it is necessary to indicate in the contract that the money is accumulated on the personal account of the house and is spent only on capital works in agreement with the general meeting of homeowners or representatives chosen by them from the house.

In many contracts for the provision of housing and communal services, the responsibility of the “Customer” is signed in detail. homeowners and the responsibility of the "Contractor" is little prescribed. UK.

Therefore, when discussing the draft agreement, the owners must ensure that the responsibility of both parties is prescribed.

Management companies are not yet accustomed to reporting to homeowners on the amount of work and services performed, although the owners of some houses have tried to demand a report from the "management company" that serves us. Therefore, the contract should clearly state how and in what period the management company will report to the homeowners. Maybe you would like to be reported to you once a quarter, half a year or once a year.

Therefore, it is necessary to include a clause in the contract on the obligation of the Criminal Code to draw up an act of acceptance and transfer of the house, in which all the shortcomings in the maintenance and repair of the house would be spelled out. According to such an act, homeowners will be able to demand from the management company that served them to eliminate defects in the maintenance and repair of the house, as well as to carry out major repairs (if the house is more than 20 years old). If the act of acceptance and transfer of the house is not drawn up, then all the imperfections in the house will have to be eliminated at the expense of additional funds from the owners of the house. Because any management company that will enter into an agreement with you to manage your home will start working from a “clean slate”. For all the shortcomings of the previous Criminal Code, she is not responsible.

The top line of payment for housing and communal services, in addition to maintenance and current repairs, also includes:

emergency service;
garbage removal;
maintenance and repair of elevators;
IEC services and more.

According to the new Housing Code of the Russian Federation, the price for these services is negotiable and is established under an agreement between the owners of an apartment building and the management company that services it. Unfortunately, the Criminal Code, when concluding agreements with these services, does not defend the interests of the owners of the house and concludes them on the terms that these organizations dictate to them. Residents of the house are not even introduced to the content of these contracts.

For homeowners, I would like to read out a quote from the LCD “under the management agreement, one party (Contractor), on the instructions of the other party (i.e., owners), undertakes to provide services and perform work on the proper maintenance and repair of housing for a fee”, therefore, when concluding an agreement, remember - who pays.

Human Resources Agreement

An agreement on the transfer of functions for personnel management is a type of civil law contract for the provision of services. The main provisions of such a document are governed by the norms of Chapter 39 of the Civil Code. Here the definition of the contract is given, the conditions for its conclusion, implementation and termination are prescribed, the procedure for payment for the services rendered is provided. However, these are only general points. The drafting of any agreement, including an agreement on the transfer of functions for personnel management, should be approached strictly individually.

So, when developing a contract for HR outsourcing, you should:

The first is to clearly define the subject of the contract itself;
Second, consider how legal means stop the possible leakage of confidential information that will become “publicly available” in the process of executing the contract;
the third is to decide how to force employees of the outsourcing company to comply with the rules of internal work schedule(in the event that the activity for the provision of services is carried out on the territory of the customer company). So, first things first.

When drawing up a contract for HR outsourcing, you should first of all pay attention to the subject of the contract itself. The fact is that, in contrast to a staff leasing agreement (where the subject of the agreement is the provision of “rent” of specific employees), the subject of an outsourcing agreement is the performance of a specific service.

In other words, when outsourcing, the parties agree not to provide the customer with certain specialists to perform personnel work, but directly to perform the personnel work itself. And which of its employees to entrust the performance of this function, the provider company will decide for itself. It follows from this that the customer company (both at the stage of concluding a contract and in the process of its execution) is not entitled to “reject” one or another proposed specialist. For example, because of his low qualification (while such a refusal is quite possible with leasing). The customer company has the right to present its claims to the partner only regarding the quality or timing of the work performed.

When outsourcing personnel management functions, the employees of the provider company are often located on the territory of the customer company, thus forming a kind of internal headquarters. Such an organization of work is convenient, for example, when outsourcing personnel documentation (there is no need to move an array of personnel documents outside the organization). Or when developing a package of local legal acts, including regulations on structural divisions (after all, this kind of work involves close communication with line managers).

When outsourcing employees are located on the territory of the customer organization, the question often arises of the need to comply with the internal labor regulations.

Since outsourcing employees are not in an employment relationship with the customer, the management of the customer company has no legal leverage to apply any disciplinary measures against them (if necessary). According to the law, only their direct employer, namely the provider company, has the right to influence them in a disciplinary manner. Therefore, the text of the contract to be concluded must necessarily provide for the following: include a clause according to which the outsourcing company guarantees the client company (under the threat of penalties, up to early termination of the contract for the provision of services) that its outsourced employees will strictly comply with the rules of internal labor regulations in force on the territory of the client company.

When concluding a contract for HR outsourcing, another problem arises: how to protect confidential information (information constituting a trade secret, information about personal data of employees) from possible leakage. Outsourcers are allowed to access the holy of holies of the company - to information on the amount of wages of employees, on the payment (or non-payment) of mandatory taxes and payments by the company. And if the necessary measures are not taken in time, there is a great risk that such information will become the property of undesirable persons and organizations, which can cause moral or material harm to the company and its employees.

First of all, when allowing outsourcers to access the personal data of employees, the customer company must first obtain the written consent of employees to transfer information about them to third parties. A non-disclosure clause should also be included in the service agreement. In addition, it must be taken into account that it will not be an abstract legal entity, which is a provider company, that will come into contact with “secret” information, but quite specific individuals, its employees. Therefore, it makes sense, along with the “general” contract, to conclude special (additional) agreements between the customer company, the provider company and each employee of the provider company on non-disclosure of confidential information that will become known to the designated circle of persons in connection with the execution of the main contract.

These agreements should be formalized as an annex to the service agreement. I must say that the presence of such paper in many respects disciplines outsourcers, increases the personal responsibility of each of them for the careful and correct handling of other people's information.

Usually, for the period of validity of the contract for HR outsourcing, the contracting organization appoints a responsible person from among its employees. This employee must control the volume, quality and timing of the services provided. The appointment of a responsible officer contributes to clear coordination in the interaction of partners, helps to develop an agreed position on a particular issue that arises in the process of executing the contract.

Residential property management agreement

Often the owners of non-residential premises in apartment buildings are faced with the problem of settling relations with the organization involved in the management of the entire building. To resolve conflicts, an agreement is signed by both parties.

In this article, we will consider the subtleties and nuances of the procedure - the mandatory clauses of the contract, the validity period of the document and the conditions for its termination.

A non-residential property management agreement is a written formal agreement concluded to regulate relations between the owner and the organization providing communal resources.

The owner has the right to create an offer (draft), which specifies the terms of accrual and payment for their services. In turn, the resource supply company must approve or challenge any points and make its decision.

In case of a negative response from the organization, the owner can accept the conditions of the company or go to court to establish a fair decision.

An interested person in the preparation of a draft agreement is the owner of the premises.

The property located on the territory of the MKD is recognized as not included in the structure of the common house, even if it is connected to communication networks (Government Decree No. 354).

The purpose of the agreement is to prevent disputes between the owner and the MA or HOA. Otherwise, the owner of non-residential premises pays for all services on an equal basis with homeowners, participating in the maintenance and provision of common house property.

All items of services used by a citizen in non-residential premises must be indicated in this document and agreed with the managing organization of the house.

According to Decree No. 354, owners must opt ​​for one of the following organizations:

With the MA, which sends information to the RSO (resource supply organization).
Directly with the RSO, coordinating the contract with the MA.

In the first case, the owner sends the contract to the RSO for consideration, and the latter, in turn, notifies the management company of the agreement. From the moment the agreement begins, the citizen becomes a client of the organization providing public services. Other MA fees do not apply to him.

The second option is to coordinate the document with the MA. In this case, the MKD management organization sends data to the RSO on the presence of non-residential premises in the property. Further, the MA notifies the owners of the obligation to conclude an agreement with the RSO.

The organization and provision in the MKD is often handled by the HOA. To resolve all issues with this form of government, it is also necessary to agree on a specific management project.

In non-residential premises there may be significant communication facilities, access to which is important for the whole house. The owner must agree with the HOA permission to carry out maintenance on its territory.

According to the current amendments to Government Decree No. 354, owners of non-residential premises are required to conclude contracts directly with the resource supply organization.

Otherwise, the RSO distributes the accounts in a non-contractual way, which is much more expensive than after the conclusion of the agreement.

The document consists of several parts:

1. General provisions, which indicate the basic concepts included in the agreement.
2. Subject of the agreement: characteristics of the parties and the resources provided.
3. Obligations of the parties.
4. Rights.
5. Calculation of prices for utilities.
6. Cost and payment procedure.
7. Responsibility of the MA (HOA, RSO) and the owner.
8. Validity period of the document.
9. The procedure for termination and resolution of disputes.
10. Additional Terms.
11. Additions.
12. Addresses and signatures of the parties.
13. Appendix, which indicates the tariffs and prices for utilities.
14. Signatures of the parties to the agreement.

The document is filled in writing, in two copies, one of which remains with the owner, and the other is sent to the managing organization of the MKD.

The draft agreement is drawn up according to the established model in writing in two copies.

The order of registration is as follows:

1. At the very beginning of the document, the following is indicated in words:
Name of the owner;
postal address of the non-residential premises.
2. Clause 2 "Subject of the agreement" indicates the total area (in sq.m.).
3. The sixth paragraph establishes the approximate amount of the owner's monthly payments under the contract (the amount is indicated by a numeral, not a figure, for example: four hundred and thirty rubles).
4. In the eighth, the start date and end date of the contract are written (in numbers).
5. Clause 12 specifies the legal addresses of the participants and their signatures.
6. The application indicates the full list of services provided, the approximate amount of resources used, the tariff and the estimated price.
7. Signatures of the parties at the end of the contract are required. Otherwise, this document is not valid.

The contract form, which indicates the rights and obligations, responsibility, subject, terms of the agreement and termination, can be taken from a law firm, in which a specialist will additionally advise on each issue.

The contract is concluded for the period of use by the owner of utilities and terminates when:

Transfer of rights to property to another owner;
termination of the current agreement.

The document usually indicates the period of validity of the contract from 1 to 5 years. If after the expiration of the specified period the owner continues to fulfill all the requirements, then the contract is simply renewed annually.

Termination of the agreement on the management of non-residential property is carried out:

By agreement of both parties;
unilaterally.

The owner has the right to change the organization providing utility services once a year, notifying of his decision one month before termination.

Changes to the contract may lead to litigation and unilateral termination of the contract.

The new rules for concluding an agreement between the owner of non-residential premises and the managing organization make it possible to resolve resource supply issues without conflicts and litigation.

Share management agreement

An agreement on trust management of a share in an LLC - we have placed a sample of it in this article. In it you can also read about its main provisions and features of design and content, which should be taken into account in different situations.

Trust management of a share is subject to the general rules of Ch. 53 of the Civil Code of the Russian Federation, taking into account the peculiarities of the management object and the norms of the Law "On LLC" No. 14-FZ (hereinafter referred to as the Law on LLC).

The essential terms of such an agreement (Article 1016 of the Civil Code of the Russian Federation):

Description of the share (size, name and location, other known details of the company).
Indication of the beneficiary - the person in whose interests the manager should act (if this is not the founder of the management).
The amount and form of the manager's remuneration (but the contract can also be free of charge). When managing an inherited share, the amount of payment cannot exceed 3% of its value in accordance with Decree of the Government of the Russian Federation “On approval of the maximum amount of remuneration ...” No. 350.
Term (up to 5 years). By virtue of law, in the absence of objections from the parties, the contract is automatically extended for the same period (clause 2, article 1016 of the Civil Code of the Russian Federation).

The trustee is endowed with all the powers in relation to the object of management, including the right to exercise the powers of the owner (without transfer of ownership, this construction differs from the trust-trust relationship).

The contract requires compliance with a simple written form (Article 1017 of the Civil Code of the Russian Federation). Information on the transfer of a share for management shall be entered into the Unified State Register of Legal Entities by filling out sheets L or M of form P14001. The applicant is a participant - the founder of the department or a notary (clause 1.4 of article 9 of the law "On state registration of legal entities and individual entrepreneurs" No. 129-FZ).

The following persons are named in the contract:

1. The founder of the management / participant / owner of the share (Article 1014 of the Civil Code of the Russian Federation), guardianship and guardianship authority (Article 38 of the Civil Code of the Russian Federation), notary or executor of the will (clause 2 of Article 1026, Article 1134 of the Civil Code of the Russian Federation).
2. Beneficiary (if this is not the founder of the management) / ward / owner of property, heirs. Given that at the time of the conclusion of the contract all the heirs are not always known, they may not be indicated by name.
3. Trustee. These are (Article 1015 of the Civil Code of the Russian Federation):
an individual entrepreneur or a commercial organization (the list is contained in paragraph 2 of article 50 of the Civil Code of the Russian Federation), with the exception of a unitary enterprise (as a general rule);
as well as another citizen or non-profit organization, if the contract is concluded in accordance with the requirements of the law (in addition to the above cases, this is, for example, paragraph 2 of article 17 of the law "On the State Civil Service" No. 79-FZ).

Institutions, unitary enterprises, state and municipal bodies cannot be managers.

There is no special procedure for concluding an agreement by the body of guardianship and guardianship. A different situation is when opening an inheritance, which includes a share in an LLC.

In the event of the death of a shareholder, a period of uncertainty of the status (ownership) of the share lasts before the issuance of a certificate of inheritance. In paragraph 8 of Art. 21 of the LLC Law provides for the resolution of this problem by managing the share in accordance with the norms of the Civil Code of the Russian Federation. At the same time, notaries are guided by the Guidelines for the inheritance of shares in an LLC (approved at a meeting of the Coordinating and Methodological Council of the notary chambers of the Southern Federal District, the North Caucasus Federal District, the Central Federal District of the Russian Federation).

A notary concludes an agreement on trust management of a share upon application (clause 2, article 1171, article 1173 of the Civil Code of the Russian Federation):

heir;
executor;
municipal authorities;
body of guardianship and guardianship;
other persons acting in the interests of preserving the inheritance.

At the same time, it is necessary to obtain the consent of the LLC participants in advance to transfer the share by inheritance, if this is provided for by the charter (clause 8, article 21 of the law on LLC).

When concluding an agreement, the notary must agree on the terms of the agreement with the heirs (legal representatives of the heirs) and indicate all heirs known to him as beneficiaries. When new heirs appear, the contract (in the list of beneficiaries) must be amended. Lack of agreement and incorrect indication of the composition of the heirs are the grounds for recognizing the contract as not concluded. In addition, if an abuse of the right is detected when concluding an agreement, it can also be declared invalid (definition of the Supreme Court of the Russian Federation No. 78-KG15-7).

The question arises: do the participants and the company have the right to initiate the introduction of trust management if none of the persons authorized by law does this?

The situation in the organization can develop according to 2 scenarios that were mentioned in the resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation No. 12653:

1. When business can continue as normal (no decisions required, other participants' shares are sufficient for a quorum and decisions), no special action needs to be taken.
2. When management processes are blocked in the organization (for example, there will be no quorum), participants have the right to:
apply to a notary or executor of the will with a request to appoint a trustee;
demand in court the introduction of external management if mandatory reorganization is blocked (clause 2 of article 57 of the Civil Code of the Russian Federation);
demand in court the exclusion of heirs from the number of participants (Article 10 of the LLC Law).

As can be seen from the above, the number of persons entitled to apply to the relevant authorities does not include the company itself, but only its participants.

The contract is real (comes into force simultaneously with the transfer of the share), so there should be no obligation to transfer it in the text.

Responsibilities of the Founder:

Pay the established remuneration;
warn the manager that the share is pledged (clause 2 of article 1019 of the Civil Code of the Russian Federation);
to bear the obligations of the pledgee, if the conclusion of the agreement was due to the deposit of a pledge by the manager as security (clause 4 of article 1022 of the Civil Code of the Russian Federation).

The rights of the founder of the administration generally correspond to the duties of the other party. This right:

Require a report from the manager;
approve or disapprove the transfer by the manager of the execution of powers to his attorney;
cancel the contract with the payment of the full amount of remuneration provided for by the contract.

The beneficiary has the right to demand that his interests be taken into account (clause 2 of article 1012 of the Civil Code of the Russian Federation) and demand compensation for lost profits in case of their violation.

In the documents, the powers of the manager are reflected by affixing the sign “D. U."

The powers of the trustee include both rights and obligations:

Personally exercise the powers under the contract.
Exercise the rights and obligations of its owner in relation to the share. In this case, in the general case, all powers are meant, with the exception of the order, which must be specifically stipulated in the contract (clause 1, article 1020 of the Civil Code of the Russian Federation).
Keep separate records of the received share (for legal entities and individual entrepreneurs).
Perform duties at the expense of property transferred to management, as well as include in its composition everything acquired. The implementation of these actions in relation to the share is difficult. In an LLC, it is possible to pay income that cannot be attributed to a share, just as the manager's expenses cannot be made at the expense of a share. This issue should be covered in the contract.
Demand the elimination of violation of their rights.

The manager is obliged to submit a report on his work within the time and in the manner established by the contract. His liability under the contract occurs regardless of fault (with the exception of force majeure). In addition, he bears subsidiary liability for all obligations, the amount of which exceeds the value of the share (Article 1022 of the Civil Code of the Russian Federation).

The rights that are recognized for the trustee without special indication in the contract:

Get acquainted with the documents and receive documents from the company (see Resolution of the 13th AAS No. 13AP-196);
vote at the general meeting of participants (this follows from the resolution of the presidium of the Supreme Arbitration Court of the Russian Federation No. 12653);
give consent to the transfer of shares of other participants in the order of inheritance (resolution of the AS SZO No. F07-943), and therefore other consents required by law and the charter.

Rights for which special authorization is required (indication in the contract or power of attorney):

1. The right to appeal the decisions of the general meeting of participants. With regard to the trust management of a share, the fact that in paragraph 3 of Art. 1020 of the Civil Code of the Russian Federation provides only proprietary legal methods for protecting rights (references to Articles 301–305 of the Civil Code of the Russian Federation). From this, the courts conclude that, unless otherwise provided in the contract, there is no right to challenge the decisions of the organization's management bodies (see resolution of the 9th AAC No. 09AP-11667). In addition, the contract itself cannot be regarded as a power of attorney for legal representation (Decree of the 13th AAS No. 13AP-21244).
2. Exercise of the pre-emptive right to purchase a share (resolution of the AS MO No. Ф05-5042).
3. Disposition of shares (clause 1, article 1020 of the Civil Code of the Russian Federation).
This type of contract is not subject to the provisions of Sec. 39 of the Civil Code of the Russian Federation (paid services), therefore, its arbitrary termination is not allowed.

It is possible on the grounds expressly stated in Art. 1024 of the Civil Code of the Russian Federation, in the following cases:

Death of a citizen or liquidation of an organization that is a beneficiary, bankruptcy of an individual entrepreneur - the founder of the management;
refusal of the beneficiary to receive benefits (other may be indicated in the text);
objective inability to exercise the powers of a citizen - trustee (death, bankruptcy, etc.);
refusal by either party if personal control becomes impossible;
refusal by the founder for other reasons (then the agreed remuneration must be paid to the manager).

If there is no other rule in the contract, a preliminary (3 months) notice of refusal is sent.

The share must be returned to the founder of the management or transferred to another person specified in the agreement (for example, heirs or a new administrator of the property of a minor).

So, the main provisions of an agreement on trust management of a share in an LLC should include both the essential conditions established for agreements of this type, and special conditions arising from the object of management (the procedure for disposing of income received and ensuring the expenses of the manager, the possibility of exercising preemptive rights, issuing a power of attorney for judicial representation).

Trust management agreement

Cash can be an independent object of trust management in the securities market.

The following regulatory legal acts serve as the legislative basis for transferring funds to trust management: the Federal Law “On Banks and Banking Activities”, the Federal Law “On Investment Funds”, the Instruction of the Central Bank of the Russian Federation “On the procedure for carrying out trust management operations and accounting for these operations by credit institutions of the Russian Federation".

At the same time, taking into account the principle of freedom of contract, it should be recognized that citizens and organizations can conclude contracts for the trust management of funds, including according to the rules contained in the named regulatory legal acts.

Since the trust management agreement is real, it is considered concluded from the moment the funds are transferred to the trustee. A special procedure is established by the Regulation "On Trust Management" for the transfer of funds invested in securities. The transfer of these funds in the form of cash is carried out by their actual delivery by the founder of the management to the manager, subject to the procedure provided for by the legislation of the Russian Federation cash service individuals and organizations. The transfer of funds from the founder's account to trust management is carried out by issuing a written order to the bank on the transfer of funds to the trust management account opened by the manager specifically for the specified purpose. In this case, the moment the funds are received by the manager is the moment they are credited to such an account.

Thus, the process of concluding an agreement on trust management of funds includes two legal facts: signing the text of the agreement (reaching by the parties of an agreement on all essential terms of the agreement) and transfer (transfer) of funds to the trustee.

It should be noted that there is a situation in the securities market when a trust management agreement can be concluded through a public offer (clause 2, article 437 of the Civil Code of the Russian Federation). Indeed, credit institutions that have registered common banking management funds with the territorial institutions of the Central Bank of the Russian Federation, professional participants in the securities market who have obtained a license for the right to exercise trust management of investment funds in securities, management companies of mutual investment funds must provide cash management services (by virtue of the nature of their activities) to anyone who contacts them and expresses their desire to transfer funds for trust management (clause 1, article 426 of the Civil Code of the Russian Federation).

So, through a public offer, trust management agreements are concluded when creating common funds for banking management. The Instruction of the Central Bank of the Russian Federation “On the Procedure for Carrying out Trust Management Operations”, to which the General Conditions for the Creation and Trust Management of FBU Property serve as an annex, considers these General Conditions not only as a standard form of a trust management agreement, but also as exemplary recommendatory conditions for concluding specific agreements trust management of FBU property, the content of which should be determined on the basis of an agreement between the founder of the management and the trustee.

The credit organization publishes the General Conditions for the Creation and Trust Management of Property of the FBU. At public offer these General Conditions constitute an offer addressed to an indefinite circle of persons to conclude a trust management agreement on these conditions.

The contract in this case is concluded in a standard form, i.e. in the form of an accession contract (Article 428 of the Civil Code of the Russian Federation). The main feature of such agreements is their acceptance by the other party only by acceding to the proposed agreement as a whole. If we talk about the procedure for concluding an agreement on the trust management of funds of citizens and organizations that are accumulated in mutual funds, it should be noted that the issue is resolved similarly to that in the OFBU. Thus, the terms of an agreement on trust management of a unit investment fund are determined by the management company in standard forms and can be accepted by the founder of trust management only by joining the said agreement as a whole. At the same time, accession to the agreement is carried out by acquiring investment units of a unit investment fund issued by a management company that exercises trust management of this unit investment fund.

It must be said that it follows from Article 13 of the Federal Law “On Investment Funds” that only one type of property can be transferred to trust management of a management company - cash. The only exception is a closed-end investment fund, to which other property may be transferred, as provided for in the investment declaration.

The specified Federal Law distinguishes three types of mutual investment funds: open, interval and closed. In an open-end mutual investment fund, the owner of investment units has the right on any working day to demand from the management company the redemption of all or part of the investment units belonging to him and thereby the termination of the trust management agreement.

In an interval fund, such a right is limited by the period established by the rules of trust management of a unit investment fund. In other words, unit holders can demand redemption periodically and within a certain period of time. This is reflected in the name - "interval".

Shareholders of a closed-end mutual investment fund are not entitled to demand from the management company the termination of the trust management agreement before its expiration, except in cases established by the Law.

Closed mutual funds have a number of significant differences from open and interval funds. One of the main ones is that after the subscription, closed mutual funds can be “closed” for several years - the management company is not obliged to redeem the shares before the end of the fund. That is why the legislator, on the basis of this, established that, in addition to the essential terms of the agreement on trust management of a unit investment fund, provided for by the Civil Code of the Russian Federation and the Federal Law “On Investment Funds”, the rules for trust management of mutual funds must contain one of the following conditions:

1. The right of the owner of investment shares on any working day to demand from the management company the redemption of all investment shares belonging to him and thereby the termination of the contract of trust management of the mutual fund between him and the management company or the redemption of part of his investment shares;
2. The right of the owner of investment units within the period established by the rules of trust management of the unit investment fund to demand from the management company the redemption of all investment units belonging to him and thereby the termination of the contract of trust management of the unit investment fund between him and the management company or the redemption of part of his investment units;
3. The absence of the owner of investment shares of the right to demand from the management company the termination of the contract of trust management of the unit investment fund before its expiration, except in cases provided for by the Federal Law "On Investment Funds".

As is known, the fulfillment by the trustee of the obligations arising from the property trust management agreement consists in the fact that he exercises, within the limits provided for by law and the property trust management agreement, the powers of the owner in relation to the property transferred to trust management. For these purposes, the trustee, on his own behalf, makes transactions and other legal and actual actions with the property entrusted to him.

If the funds of the founder of the management are at the disposal of the trustee, management means using them to acquire other property, possibly with its subsequent sale in order to obtain a sum of money exceeding that which was originally transferred to trust management.

In cases of trust management of funds carried out by credit institutions and professional participants in the securities market, the directions of their use are predetermined by the investment declarations of trustees. Thus, according to the Regulations “On Trust Management”, the investment declaration, among other mandatory information, must contain a list of appropriate objects for investing the funds of the founder of the management, i.e. such securities, the acquisition of which and the inclusion by the manager in the property of the founder of the management is lawful; information about the structure of assets, which the trust manager is obliged to maintain during the entire term of the agreement, and in particular, the ratio between securities of various types and issuers, as well as between the securities held in trust management and the funds of this founder of management.

In addition, this Regulation provides for a number of restrictions on the performance by the trustee of transactions with the funds of the founder of the trust management, including those transactions that do not go beyond the investment declaration of the trustee. For example, a trustee is prohibited from acquiring at the expense of the funds under his management: securities owned by the trustee himself or his founders; securities issued by its founders; securities of organizations in the process of liquidation or bankruptcy. The trustee is also not entitled to transfer the funds entrusted to him as deposits in favor of third parties or conclude insurance contracts at the expense of these funds, the beneficiaries of which are third parties.

It should be noted a similar approach in the regulation of the activities of the OFBU. Thus, in accordance with the Instruction of the Central Bank of the Russian Federation “On the Procedure for Carrying out Trust Management Operations” (clause 6. 6), a credit institution that is a trustee of an OFBU, when managing property transferred to trust management, must strictly comply with the investment declaration adopted by it, which should contain information on the limit the value of the property in OFBU; on the share of each type of property, including securities (shares, bonds, promissory notes, etc.) included in the OFBU investment portfolio; on the share of funds placed in currency values; on sectoral diversification of investments (by types of sectors - issuers of securities).

In addition to the investment declaration of a credit institution, some restrictions on its activities as a trustee follow directly from the text of the said Instruction of the Central Bank of the Russian Federation. Thus, it is stipulated that funds received by a credit institution in trust management cannot be invested by it under the guarantee of the credit institution itself - the trustee, as well as under the guarantee of legal entities related to it. A credit institution acting as a trustee cannot also issue credits (loans) at the expense of funds transferred to it for trust management, as well as receive credits (loans) as a trustee (clauses 3. 3 and 3. 4 of the Instructions of the Central Bank of the Russian Federation).

An important role in disclosing the features of trust management of funds is acquired by the procedure for the trust manager to provide the founder of management and the beneficiary with a report on their activities to fulfill obligations arising from the trust management agreement.

It is noteworthy that on this issue the Regulation "On Trust Management" does not contain any rules on regulation, but only refers to other regulations Federal Commission for the Securities Market (clause 9. 1 of the Regulations).

In contrast to the Regulation “On Trust Management”, the Instruction of the Central Bank of the Russian Federation “On the Procedure for Carrying out Trust Management Operations” includes a number of provisions relating to the procedure for reporting by a credit institution - trust manager on its activities. Credit institutions acting as trustees of the property of the OFBU, for example, are required to disclose information on the daily balance of the OFBU (clause 6. 18 of the Instruction of the Central Bank of the Russian Federation).

They must also not only regularly report to the founders of the trust management and beneficiaries, but also inform the territorial offices of the Bank of Russia about the state of the property of the OFBU. Such information must be submitted by credit institutions - trustees annually, not later than February 10 of the year following the reporting year.

In addition, in the securities market, as a special area for the implementation of trust management, it is provided for the disclosure of information by trust managers about their activities. Such requirements are established for all trustees who carry out trust management of securities as an independent object of management.

For credit institutions engaged in trust management, the list of information to be provided to the founders of trust management, as well as information subject to mandatory disclosure, is established in the agreement in accordance with the Instruction of the Central Bank of the Russian Federation "On the Procedure for Carrying out Trust Management Operations", which contains a special section - "Reporting of credit institutions - Trustees”, as well as other regulatory legal acts. These acts also establish the procedure and terms for reporting and disclosure of information. In addition, in case of trust management of OFBU, the trust manager is obliged to determine daily the current (market) value of the assets of OFBU and the size of the share of the founder of trust management.

When carrying out "trust management" of funds of citizens and organizations collected in a mutual investment fund, the management company, in accordance with the Federal Law "On Investment Funds", has the right to invest the property of the mutual investment fund, which is in trust management, in accordance with the trust management agreement in securities, real estate, bank deposits and other property in the manner established by the FFMS (depending on the type of fund). When exercising its rights and obligations, the management company determines which course of action is best from the point of view of the interests of the unit holders, and the investors themselves are not entitled to give any instructions to the management company or otherwise interfere with the exercise of its rights and obligations.

The property acquired by the management company in the course of managing the mutual fund serves to increase the property of the unit investment fund, with the exception of funds allocated to reimburse the expenses incurred by the management company in managing the property of the mutual fund, as well as funds paid as remuneration to the management company and the specialized depository in accordance with the rules of a unit investment fund and the issue of investment units.

When managing a mutual fund, the management company is not entitled to dispose of the assets and property constituting the mutual fund without the consent of the specialized depository; acquire at the expense of assets and property objects not provided for by the investment declaration; alienate own property as part of the property of a unit investment fund; provide loans at the expense of property owned by the investment fund; use the property of the mutual investment fund to secure its own obligations not related to the management of the property of the mutual investment fund, or the obligations of third parties; acquire property belonging to the investment fund that it manages, etc.

The provision of a report on their activities by the trustees to the founders of the management is carried out by periodically publishing certain information. In particular, when managing the property of a mutual investment fund, the management company is obliged to publish an audited balance sheet of the property of the mutual fund, including information on an increase or decrease in net assets per one investment share (according to the results of each financial year); audited balance sheet of the management company (according to the results of each financial year); information on expenses reimbursed from the property of the unit investment fund; acquired property and investments made (according to the results of each half year); information on ongoing investment programs, including information on the placement of funds in deposit accounts with credit institutions and the purchase of securities (according to the results of each half-year).

The termination and application of the consequences of the termination of the contract of trust management of funds has essential features. According to the general rule provided for in paragraph 3 of Art. 1024 of the Civil Code of the Russian Federation, upon termination of the trust management agreement, the property held in trust management is transferred to the founder of the management. Other may be provided by the contract.

So, in accordance with the Instruction of the Central Bank of the Russian Federation “On the procedure for carrying out trust management operations” (clause 6. 2), in the event of termination of the activities of the general fund of banking management, the founders of trust management have the right to exchange their equity participation certificates for cash in the amount of the existing share within the property under management. In case of insufficiency of the liquid funds of the FBU, upon presentation of the certificates of equity participation for exchange, the trustee is obliged to return the property in the amount of a share in the composition of the managed property at his own expense, with subsequent reimbursement of the value of this property at the expense of the FBU.

According to the Federal Law “On Investment Funds”, an agreement on trust management of the funds of an “investor” as part of the property of a unit investment fund is terminated as simply as it is concluded: the “investor” offers the management company to redeem the investment share belonging to him. As the property returned by the trustee to the founder of the management, it is proposed to consider the amount of money paid by the management company to the “investor” for the investment share redeemed from him. Thus, the said Federal Law stipulates that the “investor” has the right to present to the management company at any time a demand for the redemption of the investment share, and the management company is obliged to redeem the investment share in the manner and within the time limits established by the rules of the mutual investment fund and the prospectus for the issue of investment shares.

Redemption of investment shares is carried out at the expense of the funds included in the property of the unit investment fund. In case of insufficient funds to redeem investment units, the management company has the right to use its own funds to pay compensation. Investment shares redeemed by the management company, including for its own funds, are considered redeemed from the moment of redemption and are subject to destruction by a specialized depository.

A very limited number of issues are covered here. This is primarily due to the lack of study in the legal literature of the agreement on trust management of funds, as well as the lack of practice in the application of this agreement. Currently, there are a small number of management companies in Russia, which operate mainly in large cities.

But the need for trust management of funds is obvious. The qualitative elaboration of the norms regarding the trust management of funds will give impetus to even greater use of this type of agreement, which is extremely important in the current economic conditions.

Vessel Management Agreement

According to Art. 14 KTM, the owner of a ship has the right to transfer it to a trustee under a trust management agreement to manage the ship for a fee in the interests of the owner. Trust management of property is regulated by Chapter 53 of the Civil Code.

Under a property trust management agreement, one party (the founder of the management) transfers the property to the other party (the trustee) for a certain period of time in trust management, and the other party undertakes to manage this property in the interests of the founder of the management or the person specified by him (the beneficiary). The transfer of property for trust management does not entail the transfer of ownership of it to the trustee. The trust manager makes transactions with property transferred to trust management on his own behalf, indicating that he acts as a manager (Article 1012 of the Civil Code).

The object of trust management may be any ship, with the exception of a ship that is under economic management or operational management. This is due to the fact that according to Art. 14 KTM, only the owner of the vessel can be the founder of trust management. Thus, a ship that is the property of the state - the Russian Federation or a subject of the Russian Federation, cannot be transferred to trust management of a shipping company - a unitary enterprise. This can be done only by the relevant state property management body, which will be the founder of the trust management. The trustee may be an individual entrepreneur or commercial organization competent in the field of management of ships and their operation, with the exception of a unitary enterprise (clause 3, article 14 of the CTM).

KTM has clearly demarcated the contract of trust management of the vessel from the contract of maritime agency and the contract of maritime mediation. In the first case, the maritime agent, although he can perform legal and other actions both on his own behalf and on behalf of the shipowner, however, they are limited to a certain port or a certain territory (not to mention the fact that the shipowner is understood not only as the owner, but also any person using the vessel for any other legal reason). With maritime mediation, a maritime broker acts only on behalf of the principal and only when concluding a limited type of contract. In our opinion, the use of the trust management agreement in maritime transport will expand, since in recent years a significant number of small ship owners have appeared who own a limited number of ships and who find it difficult, and often unprofitable, to maintain the relevant services that ensure the proper operation of ships.

The contract of trust management of the ship must be concluded in writing, provided for the contract for the sale of real estate. According to Art. 550 of the Civil Code, this should be a simple written form by drawing up one document signed by the parties. As already noted, the transfer of a vessel to trust management is subject to mandatory registration in the State Register of Ships or the ship's book. Failure to comply with the form of the trust management agreement or the requirement to register the transfer of the vessel to trust management entails the invalidity of the agreement (clause 3 of article 1017 of the Civil Code).

According to paragraph 4 of Art. 14 KTM, the contract of trust management of the vessel must indicate the parties to such an agreement, the rights and obligations of the trustee, the amount and form of his remuneration. In accordance with Art. 1016 of the Civil Code, the essential terms of such an agreement include: the composition of the property transferred for trust management; the name of the founder of the management or the beneficiary; the amount of remuneration and the term of the contract (this contract is concluded for a period not exceeding five years; in the absence of a statement by one of the parties to terminate the contract at the end of its validity period, it is considered extended for the same period and on the same conditions that were provided for by the contract) . The ship trust management agreement may be terminated on the grounds specified in Art. 1024 of the Civil Code (in particular, in case of refusal of the trustee or the founder of the management from the implementation of trust management in certain cases; declaring bankrupt a citizen-entrepreneur who is the founder of the management). If one of the parties withdraws from the contract, the other party must be notified three months before the termination of the contract, unless it provides for a different notice period.

The trust manager exercises, within the limits provided for by law or the agreement, all the powers of the owner (possession, use and disposal) in relation to the vessel transferred to trust management. Typically, the rights and obligations of the trustee are detailed in the contract itself. Thus, in the contracts of trust management of a ship, it is established that, when transferring the ship to trust management, the founder of the management is not entitled to give any instructions to the trustee on issues related to the management of the ship. The trustee performs the trust management personally, but may entrust another person on behalf of the trustee with the actions necessary for the management of the vessel, including the conclusion of transactions. Typically, the trustee assumes many of the functions involved in the operation of the vessel, such as manning, technical guidance, chartering, supply of food, water, bunker, maintenance of the vessel in good order technical condition, sale of the vessel (after obtaining the consent of the founder of the management), maintaining accounting(the vessel is reflected on a separate balance sheet and is kept independently; a separate bank account is opened for settlements on activities related to trust management). Of course, the trustee carries out the commercial operation of the vessel.

Expenses incurred by the trustee in the performance of his obligations under the contract shall be reimbursed at the expense of income from the use of the ship. In particular, the expenses for hiring the crew are reimbursed, excluding contributions to the pension fund, payment of compulsory medical insurance and other similar expenses. The trustee is not required to provide own funds to cover the costs of operating the ship.

The trustee organizes the protection of the interests of the founder of the management on claims and lawsuits of third parties arising in connection with the operation of the vessel. So, he can perform any procedural actions, refer cases to court, conclude settlement agreements, etc., apply for legal, technical or other assistance to external experts in connection with the settlement of claims on issues affecting the interests of the founder of the department. To protect the rights to a ship held in trust management, the trustee has the right to demand any elimination of the violation of his rights (Articles 301-305 of the Civil Code).

Despite the insufficiently clear rules on the liability of the trustee contained in paragraph 1 of Art. 1022 of the Civil Code, the trustee of the vessel - the entrepreneur - is liable for non-fulfillment or improper fulfillment of obligations in accordance with paragraph 3 of Art. 401 of the Civil Code, i.e. unless he proves that the losses occurred as a result of force majeure or the actions of the founder of the management.

The amount of remuneration of the trustee of the ship is established by the agreement. It is usually determined as a percentage of the income from trust management of the ship for the past financial year.

The practice of maritime navigation has developed certain rules that are recommended for use when transferring ships to management. These rules do not necessarily coincide with the concept of fiduciary management contained in Russian law, but they can be used in determining the content of such an agreement.

The agreement provides for the possibility of performing both full management, including provision of the vessel with a crew, maintenance of the vessel, commercial operation, organization of obtaining insurance, accounting services, purchase or sale of the vessel, supplying the vessel with food, bunkering, and partial management.

According to paragraph 3 of the agreement, the manager provides services in relation to the vessel as an agent on behalf and on behalf of the shipowner. The manager is free to determine what actions need to be taken to fulfill the agreement in accordance with good ship management practice. If the parties have agreed to manage the crew, the manager shall provide the ship with a qualified crew in accordance with the requirements of the STCW-78/95 Convention, including payment, insurance, medical examination, staffing in accordance with the legislation of the flag state, knowledge in English to the extent necessary to perform duties on the ship, training, repatriation, negotiations with trade unions, etc. During maintenance, supervision of all mechanisms by competent personnel, organization of repairs, dry docking, etc. are provided.

The agreement contains detailed provisions regarding the rights and obligations of the parties, remuneration, liability, the duration of the agreement and the conditions for its termination, etc.

Land management agreement

Trust management of property is a relatively new institution in the civil legislation of Russia. The institution of trust property, the essential feature of which is the transfer of ownership to the trustee, was borrowed from Anglo-American law.

Currently, the relationship of trust management of property is regulated by the norms of Ch. 53 of the Civil Code of the Russian Federation.

Trust management is understood as the independent activity of the manager for the most effective exercise on his own behalf of the powers of the owner and (or) other rights of another person (the founder of the management) in the interests of the last or the third person indicated by him (the beneficiary).

The law establishes that the transfer of property to trust management does not entail the transfer of ownership of it to the trustee and does not change the content of the owner's rights to this property (clause 4 of article 209, clause 1 of article 1012 of the Civil Code of the Russian Federation).

In this regard, it can be argued that the powers of the trustee arise not from the act of transferring these powers to him from the owner, but by virtue of the contract50. Hence another conclusion - trust management relationships are not proprietary, although there are external signs for such an assessment. In any case, it is advisable to remember that for the recognition of trust management as a property right (limited property right), there is no main thing - the corresponding grounds that entail the emergence of property-law relations. When it is asserted about the property-law nature of trust administration51, then the decisive role of the contract is forgotten.

Directly in Art. 1013 of the Civil Code of the Russian Federation there is no indication that land plots can be the object of a trust management agreement. But with the advent of contractual institutions of civil legislation in the circulation of land and in connection with the content of the Federal Law "On the circulation of agricultural land", the situation has changed. The practice of applying a trust management agreement has emerged - at least in relation to land shares.

No less important is the fact that when concluding a trust management agreement, one of the most important restrictions is not violated - the land plot does not become private property (clause 2, article 27 of the Land Code of the Russian Federation), with the help of this agreement it is impossible to change the owner at all.

Several norms of the Federal Law "On the turnover of agricultural land" are devoted to the issues of trust management. Yes, Art. 16 provides that previously concluded lease agreements for land shares must be brought into line with the rules of the Civil Code of the Russian Federation and clause 2 of Art. 9 of this Law within two years from the date of its entry into force; Federal Law No. 10-FZ, the period for bringing lease agreements for land shares has been extended to four years. If this does not happen, then the rules of property trust agreements will apply to such agreements. And what is very important - registration of such contracts is not required.

In essence, we are talking about the fact that previously concluded lease agreements in certain cases are recognized as trust management agreements. The tenant is treated as a trustee. The concept of the beneficiary is applicable to the lessor, and the benefit under the contract is applicable to the rent. This compromise option, despite the rather difficult situation with land shares, was generally approved52. But the issues of "change of legal regulation" and thus of the legal regime require reflection and a special solution.

It should be noted that the rule on the extension of the rules of the trust management agreement to previously concluded land share lease agreements is imperative. It applies only to those cases where the latter (lease agreements) have not been brought into line with current civil law.

In addition, the possibility of applying a trust management agreement is provided for in Art. 12 of the Federal Law "On the turnover of agricultural land". True, in this case, the transfer of not the site itself, but a share in the common property right is provided for in trust management.

By transferring property for trust management, the owner does not transfer to the manager all the powers to own, use and dispose of the property. He only gives the trustee the right to exercise these powers on his own behalf. At the same time, the owner, during the period of validity of the trust management agreement, cannot exercise his powers in relation to the property transferred for management.

The trust management agreement is fixed-term (concluded for a period not exceeding five years) and, as a rule, paid. Compensatory nature of the contract acquires when it defines the amount and form of remuneration. According to Art. 1016 of the Civil Code of the Russian Federation, these conditions are the essential terms of the contract. It becomes gratuitous when it is provided for in the law or contract. It should be remembered that a compensated contract is mutual, a gratuitous one is unilateral.

A trust management agreement for a land plot can be both an agreement in favor of its participants, and an agreement in favor of a third party (the beneficiary under the agreement).

As a rule, a trust management agreement is an agreement concluded in a free manner. However, according to paragraph 1 of Art. 1026 of the Civil Code of the Russian Federation, trust management may also be established on the grounds provided for by law. For example, due to the need for permanent management of the property of the ward (Article 38 of the Civil Code of the Russian Federation) or on the basis of a will in which its executor is appointed.

In cases where trust management is established on the basis of an authoritative act, the contract is an indispensable condition for the emergence of trust management; its conclusion becomes mandatory.

The subject of a trust management agreement for a land plot is the performance by the manager of any legal and actual actions in the interests of the beneficiary. However, a law or an agreement may provide for restrictions on certain actions for trust management of property (clause 2, article 1012 of the Civil Code of the Russian Federation).

With regard to the objects of the trust management agreement, paragraph 3 of Art. 1013 of the Civil Code of the Russian Federation establishes a restriction. Thus, property that is under economic management or operational management cannot be transferred to trust management.

But this provision practically does not matter for cases of trust management of land plots, since they cannot be on such rights. The mortgaged land plot can also be transferred to trust management. And this does not deprive the pledgee of the right to levy execution on him.

The property transferred to trust management must be separated from other property of the founder of the management and from the property of the manager. The property is reflected in the trustee on a separate balance sheet, which is kept independently.

share management agreement

The trust management agreement provides that a certain person transfers the authority to manage property, securities and assets to the manager for a monetary reward established by the parties. The manager performs the functions effective use trusted assets. The contract obligatorily stipulates the period of exercising the powers of the manager, the main areas of activity. The trust management agreement is never accompanied by the transfer of material assets to the manager.

The appointed person has the right to exercise the following powers:

1. make transactions aimed at obtaining additional funds on its own behalf, using a special mark that allows you to identify the party as a trustee;
2. be liable to contractors and other interested parties with property belonging to him by right of ownership.

Any individual entrepreneur or company can become a trustee. The only restriction has been introduced for state-owned companies and public authorities and local governments. The legislation prohibits the trustee from acting as a beneficiary.

The following elements can serve as subjects of trust management, which determine the types of trust management:

1. commercial companies;
2. property complexes;
3. real estate;
4. securities;
5. property rights confirmed by book-entry securities;
6. exclusive rights.

Trust management is executed in the form of an agreement signed by the principal and the manager. The document is issued in printed form, and is considered concluded from the moment of transfer of property or rights to the trustee. Property trust management agreements are additionally registered with Rosreestr. If the trust management agreement is drawn up in violation of the requirements of the law, it may be recognized by the judicial authorities as void and terminated.

Drawing up a contract always implies the inclusion of the following important points:

1. a list of property or property rights sent to trust management;
2. data of the beneficiary, including demo data of an individual or information about the company that is the founder of the management;
3. the amount of the commission fee to the manager, for the effective management of the property;
4. the period for which the provisions of the contract apply.

Civil contracts of this type can be concluded for any period not exceeding five years. In some cases, established by regulatory enactments, the term of the contract may be extended. A trust management agreement cannot cover only one transaction; it is designed for the medium-term perspective of managing property or property rights. The objects of trust management are reflected in the accounts of accounting, while separate accounts and an independent balance sheet are provided for their accounting.

A trustee may manage the securities of one or more companies or individuals.

As for the rights and obligations of the parties that arise under the contract, they are regulated by the norms of the civil code:

1. after signing the contract, the trustee assumes the obligation to perform various actions in relation to property or property rights aimed at preserving or increasing the latter;
2. The owner controls the activities of the manager and may give his consent to the performance of certain operations or refuse to conduct them.

In the event of losses associated with the activities of the manager, he may be liable and compensate for the losses at the expense of his own property or money. The securities trust management agreement provides for the transfer of a certain package of securities for management. Most often, the package includes shares of various companies.

Trust management of shares provides the client with the following benefits:

1. saving time. All transactions are carried out by the manager. He carries out market analytics, calculates the most profitable securities and invests in them. Securities showing negative growth dynamics can be sold during exchange trading;
2. a professional approach to the development of investment strategies and the search for the most profitable tools.

Objects of trust management are securities owned by an individual or a company by right of ownership. The ban is established for certain types of bonds, bills of any type, certificates of deposit, checks, passbooks and other similar securities. Trust management of securities refers to an investment area in which the client can receive income from competent management or losses as a result of incorrect actions of the manager. The transfer of property rights is associated with certain risks that you need to be prepared for. It must be understood that trust management cannot guarantee income; it is not secured by state funds, like bank deposits, and can show negative growth. Trust management of shares is very similar to saving money with a forecast of a small stable income. The procedure is a great alternative to floating on your own in Forex, or trying to invest in fancy PAMM accounts.

The contract of trust management of hereditary property has its own characteristics. They are associated with the management of property, which is a hereditary mass. If the inheritance of property objects occurs according to the will of a deceased person, then only the legal heir can become the founder of the trust management. If the property passes to relatives in general order, then a notary may act as a founder. The powers of the founder apply only to the period associated with the legal registration of property objects included in the scope of the inheritance.

Under the contract of trust management of hereditary property, the following objects can be managed:

1. a separate company;
2. real estate;
3. share in authorized capital companies;
4. securities;
5. property rights.

The beneficiaries under the contract are the heirs or the notary. The conclusion of the contract is made using a written form. The contract is registered in a manner similar to the transfer of ownership. An interesting feature of such contracts is the fact that the amount of remuneration is established by government decrees. Also, the trustee may exercise his powers in the interests of the heirs on a gratuitous basis, with mandatory reimbursement of the costs incurred. The manager is only responsible for his own actions. If the heirs experience losses of property during the period of trust management related to the actions of the beneficiary or the founder, the trustee shall not bear any responsibility for them. At the end of the term of the contract, the property objects are registered in the ownership of the heirs, and the contract is terminated.

As a general rule, a trust management agreement is considered implemented in the following cases:

Physical death of the beneficiary (if we are talking about individuals) or liquidation of the company;
voluntary refusal by the beneficiaries to receive bonuses under the trust management agreement;
physical death of the trustee or declaring him bankrupt. Also, the basis for terminating the contract is the recognition of the limited legal capacity of the manager;
refusal of one of the parties to fulfill obligations under the concluded agreement.

Economic management agreement

This right is a property right of legal entities - non-owners, derived from the right of ownership, for the economic and other use of the property of the owner. The foundations of the modern legal regime of economic management are enshrined in Chapter 19 of the Civil Code of the Russian Federation. The subjects of the right of economic management may be state or municipal unitary enterprises, as well as subsidiaries created by state and municipal enterprises. The listed enterprises are called unitary, since their property is indivisible and cannot be distributed among deposits, shares, shares, shares. The property transferred to the enterprise on the right of economic management is removed from the actual possession of the owner-founder, credited to the balance sheet of the enterprise and serves as the basis for its independent property liability.

Legislation defines the rights of the owner himself in relation to property under economic management. By virtue of Art. 295 of the Civil Code of the Russian Federation, the owner, which in this case is a public entity, decides on the creation, reorganization, liquidation of a state or municipal enterprise. Thus, the decision on the creation and liquidation of federal enterprises is made by the Government of the Russian Federation on the basis of a joint proposal from the Ministry of Property of the Russian Federation, the Ministry of Economy of the Russian Federation and the federal executive body, which, under the current legislation, is entrusted with the coordination and regulation of activities in the relevant industry. Decisions on reorganization are made in the same manner. In addition, decisions on the creation and reorganization of enterprises must be agreed with the antimonopoly authority in cases and in the manner prescribed by the Law of the Russian Federation "On Competition and Restriction of Monopoly Activities in Commodity Markets". The competence of the Ministry of Property of the Russian Federation includes the implementation of legal actions related to the creation, reorganization and liquidation of federal enterprises. The owner makes a decision on endowing the enterprise with property, including the formation of a statutory fund. The transfer of property to economic management is carried out by the relevant authorities (Ministry of Property, Department of State and Municipal Property of Moscow). The right of these bodies is to exercise control over the use of purpose and safety of state property assigned to enterprises.A mandatory condition of the contract with the heads of state enterprises is the duty of the head to ensure the safety, rational use, timely reconstruction construction, restoration and repair of property assigned to the enterprise. It also provides for financial liability of the head for causing damage to the enterprise as a result of his guilty behavior and mandatory reporting of the head of the enterprise.

In accordance with Art. 49 of the Civil Code of the Russian Federation, unitary enterprises are classified as legal entities with special legal capacity. Transactions made by unitary enterprises that contradict the subject and goals of their activities are void on the basis of Art. 168 of the Civil Code of the Russian Federation. The objects and goals of the activities of unitary enterprises are fixed in their charters. The charters of state enterprises are approved by federal executive authorities or executive authorities of the constituent entities of the Russian Federation.

According to the law, the owner has the right to receive a part of the profit from the use of the property of the enterprise under economic management. The procedure for distributing profits is agreed with the relevant sectoral management body and is fixed in the charter.

The rights of the enterprise to own, use and dispose of property are defined as follows. The ownership right is exercised by the enterprise by fixing the transferred property on an independent balance sheet. The right to use must be exercised in accordance with the objectives of the activity and the purpose of the property. However, the owner does not have the right to seize misused property as a sanction for misconduct of the enterprise.

State and municipal enterprises enjoy all the rights granted by law to the owner to judicial protection of the property assigned to them on the right of economic management, including the right to bring vindication and negatory claims, including against the owner of the said property.

The implementation of the authority to dispose of fixed property has the following features. In accordance with Art. 295 of the Civil Code of the Russian Federation, an enterprise has the right to independently, without the consent of the owner, dispose of movable property, with the exception of cases established by law or other legal acts. As for real estate, the enterprise has the right to sell, lease, pledge, contribute as a contribution to the authorized (share) capital of economic companies and partnerships, or otherwise dispose of it only with the consent of the owner. The procedure for obtaining consent must be regulated in the charter of the enterprise or the agreement on the transfer of property. In any case, the consent must be prior and clothed in written form.

Since the law establishes the principle of special legal capacity of unitary enterprises (Article 49 of the Civil Code of the Russian Federation), the actions of an enterprise in disposing of the property of the owner assigned to it should be conditioned, first of all, by the tasks of the statutory activities of the enterprise and the intended purpose of the property provided for these tasks. Therefore, in cases where the actions of an enterprise for the alienation or provision for long-term use to other persons of movable and immovable property assigned to the enterprise on the right of economic management, directly involved in manufacturing process, leads to the impossibility of using the property for its intended purpose, the relevant transactions are invalid on the grounds provided for in Art. 168 of the Civil Code of the Russian Federation. Transactions are void even if they are made with the consent of the owner (the body authorized by him).

According to Art. 299 of the Civil Code of the Russian Federation, the fruits, products and income from the use of property under economic management, as well as property acquired by a unitary enterprise under an agreement or other grounds, come under the economic management of the enterprise.

Defining in Art. 294, 295 of the Civil Code of the Russian Federation of the powers of a unitary enterprise to own, use and dispose of state (municipal) property under economic jurisdiction, the legislator does not provide for the obligation to conclude agreements between the owner of the relevant property and the enterprise. However, this does not deprive the parties of the right to conclude such an agreement, specifying in it the composition of the property, rights, obligations, and responsibilities of the parties.

A model agreement on assigning state (municipal) property under the right of economic management to a state (municipal) unitary enterprise of the city of Moscow was approved by Decree of the Government of Moscow No. 5422. The purpose of the agreement is to create economic conditions, providing an increase in the efficiency of the use of property owned by the city of Moscow. The contract is concluded between the Department of State and Municipal Property of Moscow and a unitary enterprise represented by its head.

An integral annex to the agreement on securing property is a passport of the property complex containing the following documents: acts of valuation of the property complex, a certificate of investment working capital, staff list, certificate for the right to lease real estate, extracts from BTI passports (by object), certificate of ownership of land plots, plan of the land plot. The right of economic management in accordance with Art. 299 of the Civil Code of the Russian Federation arises from the enterprise from the moment of transfer of property. The actual transfer of property to the economic management of the enterprise is carried out after the issuance of a certificate of ownership, the conclusion of a contract and the signing of an act of acceptance and transfer of property. The property is transferred from the balance holder of the city property (or the former balance holder) to the balance of the enterprise.

The right of economic management is terminated on the grounds and in the manner provided for the termination of the right of ownership, as well as in cases of lawful seizure or redistribution of property by the owner (for example, during the reorganization or liquidation of an enterprise). A state (municipal) enterprise retains the right to manage its property in the event of a change of ownership.