Housing cooperatives have been known since Soviet times, but since then the conditions for joining and participating in them have changed. Despite the fact that in modern world cooperatives are quite rare, they still have a place to be, and are of interest to potential buyers of new buildings.

Housing cooperative then and now

From the point of view of legislation, a housing construction cooperative (HBC) is a voluntary association, which is joined by individuals for the joint construction or purchase of housing. However, in practice, explains Maria Litinetskaya, managing partner of Metrium Group, today they play a different role than their prototypes from the Soviet era. At that time, building cooperatives were partially financed by the state or an enterprise, therefore they were a real tool for providing the population with housing. Of course, today no voluntary association of shareholders has enough money to build an apartment building. Therefore, housing construction cooperatives are most often created by the developers themselves as one of the legal schemes for attracting citizens' money to build a house.

Today, housing cooperatives must simultaneously meet two main criteria for the possibility of attracting Money:

Firstly, to have the status of a developer (for this you need to obtain a building permit);

Secondly, to have a land plot on which construction is allowed.

Prior to the amendments to the law on housing construction cooperatives in mid-2016, which tightened the degree of control over the activities of housing cooperatives, developers often used the scheme of concluding an investment contract between the owner land plot and a construction cooperative. At present, such an agreement is illegal, since in this case the land plot does not belong to the housing cooperative, and, accordingly, the obligations of the housing cooperative to the members for the construction of the house are not provided with anything.

The current legislation in the field of housing cooperatives contains mandatory requirement maintain a register of members in the public domain indicating the size of the share contribution and subject to transfer upon completion of the construction of the house of a particular residential building.

AT general view The scheme of participation in housing cooperatives at the moment is as follows: the developer creates a housing construction cooperative, which attracts potential buyers of apartments in a residential complex. Buyers sign a participation agreement with the cooperative and become its shareholders. ZhSK, in turn, enters into an investment contract with the developer and directs the collected funds of shareholders for housing construction. Despite the apparent simplicity of the scheme, there are many pitfalls, which can play both in favor of the buyer and against him. Next, they will be discussed in more detail.

Pitfalls of a housing cooperative

Perhaps, main feature buying an apartment through a housing cooperative is the absence of an equity participation agreement (DDU). All conditions for the acquisition are governed by the contract of participation in a housing cooperative, as well as the charter of this organization.

It is not difficult to guess that all the fundamental documents (charter and standard contract participation) are written in the interests of the developer, since it is he who creates the housing cooperative. This means that in the event of disputes, the developer behind the established cooperative will be in a more advantageous position.

In particular, the housing cooperative is not obliged to fix the final cost of the apartment, and by decision of the meeting, the final price can be increased, and more than once, Maria Litinetskaya warns. In this case, the housing-construction cooperative has the right to demand additional contributions from shareholders under already paid contracts. Also, he is not responsible for the timing of the project, if they are not spelled out in the charter or participation agreement. Therefore, it is impossible to present a penalty in case of violation of the construction deadlines. The procedure for the return of funds is stipulated in the statutory documents, therefore, in the event of financial problems at the cooperative, getting your money back is problematic. Finally, the agreement with the housing cooperative itself is not necessarily subject to state registration, which can lead to “double sales” of apartments in a new building. Because it is difficult for the buyer to check whether a contract for the same apartment has been concluded with another person.

There are other risks for a member of the housing cooperative, associated not with the formalization of relations, but with the legal status cooperative and shareholder. So, from the point of view of the law, a member of a housing-construction cooperative is not a consumer of services, and therefore is not protected by the relevant Consumer Rights Protection Law. This deprives a member of the housing cooperative of the opportunity to demand from the cooperative the proper fulfillment of its obligations, first of all, the quality of construction. In addition, the cooperative is not obliged to eliminate the identified shortcomings and defects in construction.

Finally, another significant disadvantage of buying through housing cooperatives is the lack of mortgage lending with state support. Banks are generally reluctant to provide loans for the purchase of housing through a housing cooperative, since, in their opinion, the absence of state registration of legal relations related to the acquisition of an apartment under such a scheme is a less reliable instrument than a registered agreement on participation in shared construction.

Despite a large number of shortcomings, HSC also has its advantages. Thus, participation in a housing-construction cooperative allows you to get a long-term installment plan. For example, Etalon City offers installment plans until 2023, notes Natalya Barankova, a lawyer at Peresvet-Invest JSC. When selling apartments through the conclusion of a DDU, an installment plan is provided, as a rule, until the end of construction. After putting the house into operation and registering the right of ownership, the participant in shared construction becomes the owner of the apartment.

In addition, after the construction is completed, the right to manage the house automatically passes to the members of the housing cooperative, who can transform the cooperative into an HOA - an association of homeowners. So buyers can choose management company(UK), while under DDU, the selection of a UK for a completed house remains the prerogative of the developer.

Another plus for a member of the housing cooperative, says Renata Belyaeva, head of the legal department of the KASKAD Family family of companies, is that, if desired, the buyer can directly participate in the life of the cooperative and be aware of it financial activities. This is possible because the highest governing body is general meeting members of a housing construction cooperative, and this gives him the right to control the implementation of the provisions of the charter and act in the interests of members of the housing cooperative.

And, probably, the biggest advantage of buying an apartment in a housing cooperative is an attractive price. The developer is not required to bear the costs of civil liability insurance, as in the case of sales through the conclusion of agreements for participation in shared construction, which increase the price of the object.

Renata Belyaeva also draws the attention of potential buyers to the fact that at present the legislation on legal relations with housing cooperatives has become significantly tougher. The obligations of the cooperative to disclose information to members of the housing cooperative and regulatory authorities in the field of construction were introduced. Penalties were introduced for violating the law on raising funds from citizens with administrative deviations from the requirements of the law in the amount of 500 thousand to 1 million rubles, criminal liability was introduced for persons guilty of raising funds from citizens in circumvention of the law on a large and especially large scale . All changes are designed to minimize the risks of "double sales" and thereby reduce the number of citizens deceived by developers.

Does the HSC have a future?

Today, on the market for new buildings, the vast majority of objects are sold through the conclusion of a DUDS (agreement on participation in shared construction) and an agreement on the assignment of the right to claim to it. DUDS provides maximum protection to buyers within the framework of 214-FZ (it is being registered with Rosreestr, the contract clearly spells out all the conditions for buying real estate, and provides for mechanisms for obtaining compensation for non-fulfillment of conditions). On the this moment DDU is the most reliable in the construction market.

As already mentioned, buying through a housing cooperative is a very risky scheme. This is understood not only by clients, but also by the developers themselves, so housing cooperatives are not widely used - their share in the capital market, for example, does not exceed 9% of the total supply.

As a rule, housing cooperatives are used by the developer as a temporary scheme to raise funds from clients in the absence of the necessary permits in particular, formalized ownership or lease rights to the land plot, as well as a published project declaration. After receiving the necessary papers, developers usually renegotiate equity participation agreements with the housing cooperative participants.

Maria Litinetskaya believes that in the foreseeable future this scheme will not be popular, as long as there is a much safer way to participate in shared construction - DDU. The use of housing cooperatives by developers will continue to be sporadic.

Thus, with a real opportunity to purchase an apartment in a housing cooperative, you need to weigh all the pros and cons and decide whether this method is right for you.

Especially for the portal "All Novostroyki.ru"

Can a cooperative member make his share contribution with a land plot on which construction will be carried out in the future, or with another tangible asset? When accepting this land asset of the housing cooperative on account 08, who will pay the land tax? What are the tax implications?

Article 110 of the Housing Code of the Russian Federation states that members of a housing construction cooperative participate with their own funds in the construction, reconstruction and subsequent maintenance of an apartment building. A housing construction cooperative, in accordance with the legislation on urban planning, acts as a developer and ensures the construction and reconstruction of an apartment building on its land plot in accordance with the construction permit issued to such a cooperative.

The housing and construction cooperative is one of the consumer cooperatives and is a non-profit organization (clause 4, article 110 of the LC RF, clause 3, article 50 Civil Code RF).

At the same time, the amount of share and entrance fees, the conditions and procedure for their payment to without fail are established by the charter of a housing-construction cooperative (clause 1, article 113, clause 1, article 125 of the LC RF). It can also be objects in kind, including land.

A member of a housing construction cooperative who has fully paid his share contribution for the premises provided by the cooperative acquires the right of ownership to the said property (clause 4, article 218 of the Civil Code of the Russian Federation). In this case, the right of ownership arises on the date of payment of the share, and state registration property rights in this case is not of a title, but of a title (paragraph 2, clause 11 of the Resolution of the Plenum Supreme Court RF No. 10, Plenum of the Supreme Arbitration Court of the Russian Federation No. 22 dated April 29, 2010).

Thus, from the date of transfer of the land plot as a share, the citizen is deprived of the right to it. But it acquires the right to demand from the cooperative the receipt of appropriate premises (s) in the facility under construction.

The land tax on a land plot after the transfer of ownership of it to the housing cooperative is paid by the NPO.

The procedure for registration of a non-monetary share in the event of a transfer of property is established by the internal documents of the cooperative and is not regulated by law.

The receipt of property from the shareholder does not affect other tax liabilities.

Cooperatives in a new way: what is a housing cooperative with state support

"RBC-Nedvizhimost" understands the intricacies of the new law on housing construction cooperatives (ZhSK). The amendments are designed to simplify the mechanisms for creating state-supported cooperatives and significantly increase the number of citizens who can build their own housing.

Photo: TASS / Interpress / Svetlana Kholyavchuk

On September 1, 2016, amendments to Federal Law No. 161-FZ "On the Promotion of Housing Construction" came into force in Russia. The amendments are designed to simplify the mechanisms for the creation and operation of housing construction cooperatives (HCC) with state support. Such cooperatives are voluntary associations of citizens created for the construction of housing.

Currently in Russia, according to the Agency for Housing Mortgage Lending (AHML), whose press service provided RBC-Nedvizhimost with information about the new law, about 10 thousand people are registered in such cooperatives. The law will significantly increase the number of potential shareholders of housing cooperatives, follows from the materials of the agency.

Housing and construction cooperatives, created in accordance with Law No. 161-FZ, differ significantly from those previously organized by some developers, told RBC Real Estate in AHML. According to agency experts, housing construction will cost shareholders of cooperatives an average of 30% cheaper than the market value due to the provision of free land plots by AHML, the lack of a developer's margin and the reduction of contractor's expenses (for servicing loans, marketing, etc.). In housing cooperatives with state support, the risks of deceived equity holders are eliminated, since the register of shareholders is maintained by the cooperative itself under the control of the companies-employers of the cooperative members, as well as the authorities, the agency explained. housing cooperatives created by new scheme, independently control the spending of funds, the choice design organizations and contractors. The law also prohibits voluntary liquidation cooperative until the date of transfer of residential premises to the ownership of all its members.

Housing cooperatives in the USSR

Symbolic keys to the new cooperative house. Sverdlovsk, 1985 (Photo: Valery Bushukhin / TASS Newsreel)

The first housing cooperatives appeared in the Soviet Union in 1921, after the NEP. By 1937, such associations ceased to exist. One of the first examples of such cooperatives is the famous settlement "Sokol" in the area of ​​the metro station of the same name in Moscow. Its construction was started by shareholders in 1923, and the village was completed by 1930.

The cooperatives were revived again in 1958 by a resolution of the Council of Ministers. Then this was required by an acute shortage of housing, which arose due to a sharp increase in the urban population. Shareholders' funds were attracted for the construction, but at the same time the state gave a loan in the amount of 70% of the cost of housing for a period of 20 years. However, for the majority of the population, this was still unaffordable. In addition, there was also a queue to join Soviet cooperatives, while the shareholders lost the right to receive free housing from the state. Therefore, the share of housing cooperatives in the total volume of housing construction in the USSR did not exceed 10%.

What will change in housing cooperatives with state support

One of the main innovations is the simplification of the procedure for transferring a land plot to a cooperative (the condition for transferring a land plot after paying 20% ​​of share contributions has been canceled), as well as eliminating the risk of deceived equity holders. These amendments, according to AHML, will make it possible to build affordable housing on land transferred by the agency for free use to cooperatives, which will improve the living conditions of Russians of the corresponding categories.

In addition to changes in No. 161-FZ, amendments to the Housing Code of the Russian Federation have been prepared, which enable members of state-supported cooperatives to raise credit funds to pay a share contribution secured by a share (by analogy with a mortgage secured by equity participation agreements - DDU).

Main changes to the law No. 161-FZ, regulating the activities of housing cooperatives with state support

as amended until 09/01/2016	as amended from 01.09.2016
Lack of the right to purchase a dwelling or a land plot for citizens who joined the housing cooperative and subsequently ceased to belong to the relevant categories	Retention of the right to purchase a dwelling or a land plot for citizens who joined the housing cooperative and subsequently ceased to belong to the relevant categories
The presence of a condition on the transfer of a land plot after making 20% ​​share contributions	Cancellation of the condition on the transfer of a land plot after making 20% ​​share contributions
Compliance of housing under construction with the criteria for inclusion in the economy class	Absence of the requirement that housing under construction meet the criteria for being classified as an economy class
Submission of a housing cooperative application for admission of new members to the housing cooperative and further consideration by AHML	The notification nature of sending information to AHML about the admission of new members to the housing cooperative

Also, new amendments to the decrees of the Government of the Russian Federation are planned, which will expand the circle of participants in housing cooperatives with state support:

• inclusion of young professionals under the age of 35 (including citizens living alone) in all categories, while the category young specialist may refer to one of the family members;
• exclusion of restrictions on the presence of a child in a young family;
• exclusion of restrictions on the need and availability of a land plot;
• reducing the limitation on work experience to one year;
• exclusion of restrictions for employees who are administrative and technical and service personnel;
• the possibility of joining the housing cooperative of employees of enterprises and organizations with state participation(in which the share of the state is 50% or more);
• introduction of a procedure for confirming and checking the solvency of potential members before admission to the housing cooperative.

Who can become a shareholder

Today, citizens who meet certain criteria can be shareholders of a housing cooperative: young scientists, scientific and engineering workers of state academies of sciences, state scientific centers and scientific organizations, military personnel, scientific and pedagogical workers of higher educational institutions, workers educational institutions and healthcare and cultural institutions, as well as employees of organizations of the military-industrial complex and federal civil servants.

At the same time, one member of the housing cooperative has the right to own one share, which corresponds to the right to acquire ownership of one dwelling. By expert opinion AHML, the above changes in legislation will allow to increase many times the number of citizens who can build their own housing at a price significantly below the market.

How to organize a housing cooperative

The decision to organize a housing cooperative is made by the meeting of founders, which also approves the charter of the housing cooperative, corresponding to the established standard form. The charter determines the procedure for the formation of the property of the cooperative, admission to membership in the cooperative and exclusion from the cooperative, the procedure for holding general meetings of the cooperative, the competence of the board, chairman, audit commission, the procedure for paying the cost of shares in the event of withdrawal from the cooperative.

The number of members of the housing cooperative must be at least five, but not more than the number of apartments in the building under construction / individual residential buildings.

As part of the support provided, AHML transfers land plots that are in federal or municipal ownership for free use by housing cooperatives for construction on such plots apartment buildings, houses of the blocked building, objects of individual housing construction and engineering infrastructure.

Also, housing construction companies can be donated architectural designs and documentation for housing construction projects. Such documents can be issued by the Ministry of Construction of Russia, the authorities of the constituent entities of the Russian Federation and local municipalities on the basis of a written request from the cooperative.

It should be noted that AHML, in order to provide housing construction cooperatives, involves in circulation land plots from federal ownership, including those in use by government agencies authorities and institutions. At the same time, AHML's ability to provide land plots for construction directly depends on the active assistance of the right holders of federal land plots in the process of their involvement.

The procedure for creating a housing cooperative:

• contacting AHML with information about the intention to create a housing cooperative and providing primary information (type of development, approximate number of members of the cooperative, desired location of the construction site, etc.);
• formation of lists of citizens;
• sending a petition to AHML for granting a land plot;
• formation of a land plot for the purpose of further transfer to the cooperative;
• creation and registration of housing cooperatives;
• submission to AHML of an application for the transfer of a land plot for free use;
• adoption by the AHML Board of a decision on the transfer of a land plot to a cooperative;
• signing an agreement for the gratuitous use of a land plot;
• construction of multi-apartment buildings, blocks of flats or individual housing construction, as well as engineering infrastructure within the boundaries of these land plots;

Contact us for help. We have real experience in this area.

The size of the boundaries of the land plot when registering ownership

Depending on the year of construction of the house and documents on the allocation of a land plot, the size of the land plot when registering as a property may not coincide with the actual (desired) boundaries of the plot used.

For example, a house in 1998 was built by the department (and for example, let's take three houses), and all the houses were allocated a single land plot with a common infrastructure. When transferring houses to the city and forming land plots, one house could get more land, others less. And according to the passport of the house and in payment documents, in general, there could be a third size of the land plot.

Therefore, before engaging in boundary work and preparing documents for registration of property rights, it is necessary to determine the boundaries and size of the land plot, which, according to the law, must be transferred to the ownership of residents of an apartment building.

Terms of registration of land in the ownership of residents of the HOA, housing cooperative

The preparatory stage plays an important role, and possibly a considerable period of time. It is important to determine the borders of adjacent land users, the legality and size of one's own land plot, to prepare (and in some cases order) title and title documents for the land plot. This may take one to five months.

The entire process of registration can be, on average, from six months to a year.

Powers to register land

The person who will be engaged in registration actions is transferred the minutes of the general meeting, at which, in accordance with the law, a decision was made to register the land plot as a property HOA tenants, ZhSK. Although one citizen has the right to declare the registration of property (but in this case there are also negative aspects).

If only a few citizens see the need to register land as property, and a general meeting has not been held, the specialists of our organization can prepare a calculation of the effectiveness of registration and convey information to everyone, and if necessary, organize and hold a general meeting.

Is it necessary to register the land in the ownership of the HOA, housing cooperative?

You can read about the pros and cons of ownership for apartment buildings on our page "Designing the land under an apartment building".

We are ready to get involved in the land registration for your organization! Call!

Hello, Sergey Ivanovich! I am a member of a housing society. The land plot was leased for 49 years to housing construction cooperatives for individual housing construction (permitted use in accordance with the information of the State Property Committee and the lease agreement). The land plot was divided into 336 land plots (PL) for each member of the cooperative. The Land Code does not provide for the cases of granting the formed ZU to members of the housing cooperative, taking into account this type of use. In this connection, there is an intention to issue by assignment. However, this requires preliminary registration of the right to lease by the housing cooperative with the local government) for each formed land plot (Rosreestr refuses to register an agreement on the assignment of rights without simultaneous registration of all lease agreements for the formed land). This circumstance is not in the interests of housing cooperatives: the burden of state duties on all 336 storage units (the administration refuses to apply for registration as an applicant). Is there another way to register the rights to the formed memory?
Is it possible to obtain a building permit for a member of a cooperative on a land plot leased by a housing cooperative for individual housing construction?
Thank you

Hello.

In accordance with paragraph 3 of Art. 6 of the Land Code of the Russian Federation, a land plot as an object of ownership and other rights to land provided for by this Code is an immovable thing, which is a part of the earth's surface and has characteristics that allow it to be defined as an individually defined thing. In the cases and in the manner established by federal law, artificial land plots may be created.

Article 11.2 of the Land Code of the Russian Federation establishes that land plots are formed during the division, consolidation, redistribution of land plots or separation from land plots, as well as from lands owned by state or municipal property. Land plots, from which land plots (original land plots) are formed during division, amalgamation, redistribution, cease to exist from the date of state registration of the right of ownership and other real rights to all land plots formed from them (hereinafter also - the land plots formed) in accordance with the procedure , established by the Federal Law of July 21, 1997 N 122-FZ "On State Registration of Rights to Real Estate and Transactions with It" (hereinafter - the Federal Law "On State Registration of Rights to Real Estate and Transactions with It"), except for cases, specified in paragraphs 4 and 6 of Article 11.4 of this Code, and in cases provided for by other federal laws.

According to paragraphs 4 and 6 of Art. 11.4 of the Land Code of the Russian Federation section of the land plot provided non-profit organization created by citizens for horticulture, horticulture, dacha farming, is carried out in accordance with the project of land surveying. When dividing such a land plot, one or several land plots intended for a citizen to conduct gardening, horticulture or summer cottage construction or related to common use property may be formed. At the same time, the land plot, the division of which has been carried out, remains within the changed boundaries (changed land plot). When dividing a land plot that is in state or municipal ownership, one or more land plots may be formed. At the same time, the land plot, the division of which has been carried out, remains within the changed boundaries.

In accordance with Art. 24 federal law dated 24.07.2007 N 221-ФЗ “On the state real estate cadastre”, information entered into the state real estate cadastre when registering an established real estate object or formed real estate objects is temporary, with the exception of information about land plots occupied by squares, streets, driveways, embankments , squares, boulevards, water bodies, beaches and other public facilities, the formation of which is provided for by the land survey project approved in accordance with the procedure established by the legislation on urban planning (including in the event that the location of the boundaries or parts of the boundaries of such a land plot is recognized as disputable in the manner prescribed by part 15 Article 42.10 of this Federal Law), as well as cases where the ownership of these real estate objects is considered to have arisen by virtue of federal law, regardless of the moment of state registration of this right in the Unified state register rights to real estate and transactions with it. Such information loses its temporary nature from the date of state registration of the right to the formed real estate object. If after the expiration of five years from the date of registration of the formed real estate object, the state registration of the right to it has not been carried out (or in the case specified in Part 3.1 of this Article, the state registration of the lease has not been carried out), such information shall be canceled and excluded from the state real estate cadastre. Within one year from the date of exclusion of such information from the state real estate cadastre, the cadastral registration authority shall issue to the applicant or his representative personally against receipt, based on the application of these persons, the documents submitted in accordance with Article 22 of this Federal Law along with an application for cadastral registration of the real estate object (for except for documents submitted in the form electronic documents). If, after the expiration of the period established by this part, the applicant or his representative did not appear at the cadastral registration authority and he was not issued personally against signature the documents submitted in accordance with Article 22 of this Federal Law along with an application for cadastral registration of a real estate object, these documents are subject to destruction.

Taking into account the above norms, I am afraid that it is impossible to do without registration and registration of a lease for each formed land plot.

According to Art. 51 of the Civil Code of the Russian Federation to the application for a building permit
the developer must attach title documents to the land. Such a document in this case will be a lease agreement with the developer. Therefore, most likely, a member of the cooperative will not be able to obtain a building permit on a site that is leased from the housing cooperative.

For a more complete and accurate answer, it is necessary to study all the documents and circumstances of your case at a face-to-face consultation.

Sincerely,
lawyer Makoveev Sergey Ivanovich