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Stages of bankruptcy housing complex. Forced liquidation of housing cooperatives in court: step-by-step instructions. Liquidation procedure of housing cooperatives: step-by-step instructions for owners

Supreme Court The Russian Federation explained why a housing-building cooperative, created after the bankruptcy of a developer to complete construction, must accept participants in shared construction as its members.

If you are a housing construction cooperative that finds itself in a similar situation, read our article.

Deceived equity holders and litigation

The developer promised to build an apartment building. I found equity holders, entered into an agreement with them on shared construction and began to build. And after a while it burned out, it happens.

Shareholders decided to finish building the house and for this purpose they organized a housing construction cooperative. Housing cooperative handed over an unfinished house and a land plot under it. The housing cooperative approved the charter, which described the purpose of its creation - to protect the rights of participants in shared construction and to complete the construction of the house.

At the general meeting, the members of the housing cooperative unanimously decided to accept the developer's creditors as members of the cooperative only after the maximum in full will identify all participants in the shared construction of this house.

The members of the cooperative decided that the money that equity holders contributed under contracts with the developer should be considered a share contribution, because the house was being built at their expense.

But then something went wrong, and the cooperative did not accept the application of one shareholder about the offset against the share contribution of a member of the cooperative of her contribution to the shared construction of the house and did not include her in its members.

The shareholder went to court. The trial court upheld her claim. He indicated that ZhSK:

  • violated his own charter and property rights of the shareholder;
  • did not notify her in time about the convocation of the general meeting, at which a decision was made to terminate the admission of participants in shared construction to members of the cooperative;
  • did not provide an opportunity to become a member of the cooperative.

The Court of Appeal overturned the first court's decision. He proceeded from the fact that the shareholder was to blame herself: she submitted an application to become a member of the housing cooperative after the termination of admission to the cooperative of participants in shared construction. The shareholder appealed to the Supreme Court of the Russian Federation, and he reconciled everyone.

What the Supreme Court decided

Attract money from citizens for completion apartment buildings with the subsequent emergence of ownership of the premises in this house in two ways:

  • conclude an agreement for participation in shared construction,
  • create a housing construction cooperative (part 2 of article 1 N 214-FZ).

The source of the formation of the property of the consumer society - share contributions of shareholders, income from entrepreneurial activity consumer society and the organizations created by it, income from placing its own funds in banks, securities(Clause 3 of Article 21 of the Law of the Russian Federation of June 19, 1992 N 3085-I). Share contributions form a mutual fund of a consumer society (clause 1 of article 23 of the Law of the Russian Federation N 3085-I).

The Supreme Court of the Russian Federation indicated that the housing cooperative was created to protect the rights of participants in the shared construction of a residential building and to complete the construction of a house. For this, with the consent of the participants in the shared construction, including the plaintiff, the housing cooperative transferred the land plot and the unfinished house.

Therefore, the housing cooperative has the obligation to accept as members of the cooperative the participants in the shared construction of apartment buildings, for whom the right of ownership to the share contribution corresponding to the contribution to the construction of the object transferred to the cooperative is recognized.

The housing construction cooperative had to prove in court that it had fulfilled this duty (clause 1 of article 6, clause 2 of article 401 of the Civil Code of the Russian Federation). The ZhSK did not provide such evidence. The cooperative did not decide to include the shareholder in the members of the cooperative, did not assign to her the corresponding share contribution and areas, did not inform her about the convocation general meetings members of the cooperative and the decisions made by them.

The Supreme Court of the Russian Federation canceled appellate ruling the previous court and sent the case for a new trial.

No special rules

The legislation does not provide for special bankruptcy procedures for housing, housing construction and housing accumulation cooperatives (HC). As in those cases when a house is being built in accordance with 214-FZ "On equity participation ..." and apartments are sold under equity participation agreements (DAC), the bankruptcy of a developer who builds housing in a cooperative form is regulated by a special paragraph of the law "On insolvency (bankruptcy) ".

Paragraph 7, introduced into the Federal Law in 2011, is called “Bankruptcy of developers”. He says that a bankruptcy case against a developer can be initiated if he cannot pay off creditors for more than three months or fulfill obligations to pay mandatory payments, the minimum amount of which exceeds 300 thousand rubles.

Don't be afraid of bankruptcyIn a crisis, the risk of bankruptcy of developers increases. This scares home buyers. However, if you behave correctly >> Like equity holders, the court, which decided to apply the 7th paragraph in this case, classifies the shareholders of the housing estate as the third priority of creditors. The first and the second include those whose health and morale are harmed by the developer, as well as employees of the bankrupt itself.

First, a monitoring procedure is introduced with respect to the debtor, when the court approves an interim manager who must try to rectify the company's financial situation. But usually this cannot be done, and the procedure is introduced bankruptcy proceedings... This means that the debtor has been declared insolvent, his managers are removed from business, and their place is taken by an arbitration manager approved by the court.

Creditors, including shareholders of the cooperative, are given only one month at the observation stage and two months at the bankruptcy stage to declare their claims to bankruptcy.

So far, the shareholders have everything the same as those of the equity holders. They must also achieve the inclusion of their claims in one of two lists (or both): in the general register of creditors' claims and in the register of claims for the transfer of residential premises. Usually, buyers are more interested in the latter, as they prefer, albeit after waiting, to get their home, and not money, which may have depreciated in order during construction.

And this is where the differences begin.

The first difference. Time is money

According to 214-FZ, if the developer has delayed the delivery of the house for more than two months, then he will have to pay interest to the equity holders for each day of delay. The amount is quite decent. For example, if the apartment costs 3 million rubles. and the delay period is six months, then during this time the amount of the penalty will be 378 thousand rubles. - 2.1 thousand rubles each. in a day. The court is not a quick matter, and the fine during this time can be rather big.

But for shareholders, such compensation is not provided. By law, they form a cooperative to build housing together. Therefore, there is no one to present claims for delay, except perhaps to ourselves.

The second difference. We will pay ourselves

Proceeding from the same legislative logic on the unification of shareholders, if the housing complex does not have enough money to complete the building, all its members will have to chip in.

Equity holders are much more fortunate in this sense: they will be helped by the system compulsory insurance developer. It has been in effect since 2014, but only applies to houses that are being built in accordance with 214-FZ. From 2017, insurance will be replaced by compulsory contributions to a special state compensation fund equity holders. Developers will have to send to it at least 1% from each prisoner of preschool education.

Both systems - both insurance and the fund - operate on the same principle: they take over the completion of construction apartment building if the developer cannot do it himself.

But neither in the current nor in new system there was no place for shareholders of cooperatives. They are themselves responsible for the failure of the LCD. In the event of bankruptcy of the cooperative, he still completes the house. Or a new cooperative is created, where the shareholders go. Or they set up a developer company that will complete construction under 214-FZ. In any case, the shareholders have nowhere to wait for financial assistance.

The third difference. For that guy

It may so happen that other creditors who owe the cooperative will also have to pay the shareholders. The fact is that the members of the JK bear subsidiary responsibility for its debts.

According to the law, subsidiary liability for the activities of the cooperative occurs only when the ZhK incurs losses. Moreover, in accordance with paragraph 2 of Article 123.3 Civil Code RF, subsidiary liability for debts applies only to those members of the cooperative who have not yet paid in full the contributions required by the charter.

In most cases, citizens just choose a cooperative scheme for buying a home in order to receive a long-term installment plan: a shareholder can pay a share to a residential complex within several years after the end of construction. So at the time of the bankruptcy of the cooperative, most shareholders still do not have time to pay off all payments. Therefore, in theory, they can be assigned the responsibility of the JK to other creditors, for example, to contractors.

Of course, this can be avoided if the shareholders participate in the management of the cooperative - this right is given to them by the Housing Code of the Russian Federation. But usually the shareholders are offered to sign an agreement according to which they entrust the management of the employees of this cooperative or others authorized persons... The motivation is quite logical: none of the buyers wants to go to a general meeting of shareholders every time to make certain decisions. For example, it is the general meeting that should decide the issue of acquiring ownership of a land plot for construction and concluding an agreement with contractors. How many LCD shareholders can remember going to such meetings? Unlikely. It is much easier to delegate this to trusted persons.

As a result, it turns out that these persons can introduce any conditions into the charter of the ZhK. Of course, not in the interests of the shareholders.

In addition, the shareholders have a risk of becoming members of the gasket cooperative. The fact is that, according to the Housing Code, the LCD itself is obliged to act as a developer on the land plot belonging to it. But these requirements are not clearly spelled out, the legislation contains loopholes that allow unscrupulous companies to establish cooperatives as a cash desk to collect money from citizens. Such an intermediary cooperative enters into an agreement with the citizen on participation in the cooperative, which, in fact, is simply the sales department of the developer company. And with this developer, such a residential complex enters into a construction contract or a contract for investment in construction. Upon completion of the construction, the members of the cooperative who have paid the share will receive the keys to the apartments and become the owners.

However, if the residential complex terminates the contract with the developer or the developer goes bankrupt, then the shareholders will have no one to demand their apartments from. They can enter into the register of creditors of such bankruptcy only on a general basis, since they will no longer be subject to paragraph 7 of the Bankruptcy Law. Citizens will only be able to demand the return of the money paid.

Conclusion: be vigilant!

How to buy an apartment in a housing cooperativeHousing cooperatives in the primary market are less widespread than shareholdings: >> All of the above does not mean a call to avoid the scheme of cooperative construction. It has many advantages, which we have already talked about in previous publications. For example, housing at the residential complex is usually cheaper than under 214-FZ, and the payment by installments is longer.

For many citizens, the risks of residential complexes are compensated by the benefits they receive by buying an apartment according to this scheme.

The main thing is to be careful when signing documents on the purchase of housing and not to go for gray schemes offered by unscrupulous companies.

Text: Nadezhda Rogozhkina Photo: pressfoto.ru

The Supreme Court of the Russian Federation explained why a housing-building cooperative, created after the bankruptcy of a developer to complete construction, must admit participants in shared construction as its members.

If you are a housing construction cooperative that finds itself in a similar situation, read our article.

Deceived equity holders and litigation

The developer promised to build an apartment building. I found equity holders, entered into an agreement with them on shared construction and began to build. And after a while it burned out, it happens.

Shareholders decided to finish building the house and for this purpose they organized a housing construction cooperative. Housing cooperative handed over an unfinished house and a land plot under it. The housing cooperative approved the charter, which described the purpose of its creation - to protect the rights of participants in shared construction and to complete the construction of the house.

At the general meeting, the members of the housing cooperative unanimously decided to accept the developer's creditors as members of the cooperative only after all the participants in the shared construction of this house were identified to the fullest extent possible.

The members of the cooperative decided that the money that equity holders contributed under contracts with the developer should be considered a share contribution, because the house was being built at their expense.

But then something went wrong, and the cooperative did not accept the application of one shareholder about the offset against the share contribution of a member of the cooperative of her contribution to the shared construction of the house and did not include her in its members.

The shareholder went to court. The trial court upheld her claim. He indicated that ZhSK:

  • violated his own charter and property rights of the shareholder;
  • did not notify her in time about the convocation of the general meeting, at which a decision was made to terminate the admission of participants in shared construction to members of the cooperative;
  • did not provide an opportunity to become a member of the cooperative.

The Court of Appeal overturned the first court's decision. He proceeded from the fact that the shareholder was to blame herself: she submitted an application to become a member of the housing cooperative after the termination of admission to the cooperative of participants in shared construction. The shareholder appealed to the Supreme Court of the Russian Federation, and he reconciled everyone.

What the Supreme Court decided

There are two ways to attract citizens' money for the completion of apartment buildings with the subsequent emergence of ownership of premises in this building:

  • conclude an agreement for participation in shared construction,
  • create a housing construction cooperative (part 2 of article 1 N 214-FZ).

The source of the formation of the property of the consumer society - share contributions of shareholders, income from the entrepreneurial activity of the consumer society and the organizations created by it, income from the placement of its own funds in banks, securities (clause 3 of article 21 of the Law of the Russian Federation of June 19, 1992 N 3085-I) ... Share contributions form a mutual fund of a consumer society (clause 1 of article 23 of the Law of the Russian Federation N 3085-I).

The Supreme Court of the Russian Federation indicated that the housing cooperative was created to protect the rights of participants in the shared construction of a residential building and to complete the construction of a house. For this, with the consent of the participants in the shared construction, including the plaintiff, the housing cooperative transferred the land plot and the unfinished house.

Therefore, the housing cooperative has the obligation to accept as members of the cooperative the participants in the shared construction of apartment buildings, for whom the right of ownership to the share contribution corresponding to the contribution to the construction of the object transferred to the cooperative is recognized.

The housing construction cooperative had to prove in court that it had fulfilled this duty (clause 1 of article 6, clause 2 of article 401 of the Civil Code of the Russian Federation). The ZhSK did not provide such evidence. The cooperative did not decide to include the shareholder in the members of the cooperative, did not assign to her the corresponding share contribution and areas, did not inform her about the convening of general meetings of the members of the cooperative and the decisions made at them.

The Supreme Court of the Russian Federation overturned the appeal ruling of the previous court and sent the case for a new trial.

Hello. The apartment in the building Su-155 is fully paid. The equity participation agreement under 214-FZ was registered with the state registration authorities. There is a positive court decision on inclusion in the register of requirements. Acceptance certificate not.


validity of reasons for missing the deadline for filing a claim

Good evening! By the decision of the Arbitration Court of the Voronezh Region dated 21.08.2016, the NPCH-Stroy consumer housing and construction cooperative was declared bankrupt. Bankruptcy proceedings were opened for 6 months. I am a shareholder in a cooperative and bought a 2-room apartment.

Hello! This is the situation, we ordered a monument in November 2016, now, in May, we just decided to find out what happened to our monument, and the company turns out to be bankrupt. What should we do? Will you be able to get back the amount paid?

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    Hello. The bankruptcy of the housing cooperative is in progress. I want to include a penalty and moral injury in the amount of creditors' claims. The text of my agreement with the housing cooperative dated July 29, 2000: the shareholder contributes so much rubles by August 1. Upon completion of construction and commissioning of a 10-storey building housing construction cooperative on the street. the shareholder receives apartment no. 120 with living space. until September 1, 2001 The funds handed over are credited for 100% of the payment of the cost of the apartment under construction. In addition to contributions for construction, the shareholder pays to the housing cooperative funds for household expenses on accounts issued by the housing cooperative. The contract is terminated if the parties violate any conditions under the contract, At the same time, the housing cooperative returns the monetary contributions to the shareholder, with the exception of the contribution for household expenses. I have 2 questions: 1) is it really possible to include it and what is better to refer to; 2) by what law should it be calculated. I heard that, as the building permit was received in 2009 ., then the forfeit should be calculated according to 214 FZ, and not according to the Law on the Protection of Consumer Rights. Best regards Irina from Saratov.

    make an appointment by phone.,

    As a rule, the courts refuse to collect any sanctions from the housing cooperative, because You are, along with other shareholders, a member of the housing cooperative and actually bear financial and other risks associated with the activities of the organization. Moreover, if at the end of the financial year the housing cooperative has a loss, it must be covered by all shareholders. But you can try to apply, since you have an agreement with specific obligations. But in Moscow the practice is mostly negative. Refer to the law on the protection of consumer rights, although it generally does not apply to the relations between the housing cooperative and its members, you can write that in addition to the membership relationship, there is also an agreement. FZ 214 in your case is definitely not applied.

    Bankruptcy of non-profit corporations in the housing sector (Sweet Yu.P.)

    Date the article was posted: 05/04/2016

    There are two types of non-profit corporations operating in housing, - consumer housing (housing construction, housing savings) cooperatives and homeowners' associations. These non-profit organizations carry out activities for the construction and acquisition of residential premises for their members (participants) and (or) management of apartment buildings.<1>.

    <1>The current housing legislation does not directly exclude the creation in organizational and legal forms of not commercial organizations and managing organizations. The managing organization is a legal entity, regardless of its organizational and legal form (clause 2 of the Rules for conducting local government open competition for the selection management organization For driving apartment building // Russian newspaper... 2006.22 Feb.). However, since management activities are carried out for the purpose of making a profit, management organizations are usually created in the form of commercial organizations.

    <3>SZ RF. 2002. N 43. Art. 4190.

    The peculiarities of the sphere of activity of these organizations and the specificity of the formation of their property require the creation of additional guarantees for their members.

    The activities of these non-profit organizations are aimed at the implementation of one of the constitutional rights individuals - the right to housing. The presence of a dwelling suitable for permanent residence is recognized as one of the necessary conditions for the prosperous existence of a person.<4>.

    <4>International Covenant on Economic, Social and cultural rights(adopted on December 16, 1966 by Resolution 2200 (XXI) at the 1496th plenary session of the UN General Assembly) // Vedomosti of the USSR Armed Forces. 1976. N 17. Art. 291.

    The solution to the housing problems of citizens of ZhK and ZhKK is carried out through the acquisition or construction (reconstruction) of an apartment building.

    Before acquiring ownership of residential premises, members of a housing cooperative have the right to a share. A share is understood as the share of unit accumulation of a member of a housing cooperative in the mutual fund of this cooperative. In turn, unit accumulation means that part of the share contribution that was paid by a member of a housing cooperative on a certain date.

    Until the moment of full payment of the share, the living quarters are owned by the cooperative, but the cooperative cannot dispose of them at its discretion: it is obliged to provide a member of the cooperative with this living quarters for use. However, in case of bankruptcy of a cooperative, residential premises in respect of which the share has not been paid in full may be included in the bankruptcy estate and sold along with other property.

    Often, cooperatives do not just acquire residential premises, but carry out the construction or reconstruction of an apartment building, acting as a developer (Art. 110 ZhK). Such cooperatives are subject to the bankruptcy rules of the developer (Section 7 Chapter IX of the Bankruptcy Law). In accordance with the Bankruptcy Law, an arbitration court has the right to recognize that a construction participant has a requirement to transfer a dwelling or a monetary claim if Money to a housing construction cooperative in order to participate in the construction of an apartment building (Article 201.1 of the Bankruptcy Law).

    Also, developers are considered housing cooperatives that carry out the reconstruction of apartment buildings (clause 2, article 110 of the ZhK).

    Since the bankruptcy provisions of the developer only apply to cases where the apartment building has not yet been commissioned, if the housing cooperative acquires a ready-made apartment building, the bankruptcy provisions of the developer do not apply to it.

    A very interesting question is about the rules applied in the bankruptcy of a housing savings cooperative (ZhNK). ZHK can, within the framework of its activities, act as both a developer and a participant in shared construction (subparagraph 2 of paragraph 1 of article 16 of the Federal Law "On housing savings cooperatives"<5>). The law does not limit ZhNK to the possibility of building only apartment buildings.

    <5>SZ RF. 2005. N 1 (part 1). Art. 41.

    The fact that members of housing cooperatives have the status of a participant in construction gives them the opportunity to take advantage of guarantees, stipulated rules on the bankruptcy of the developer.

    These guarantees are aimed at ensuring that a member of the cooperative has a priority in obtaining housing.

    The bankruptcy regulations of developers establish several types of such substantive and procedural guarantees for construction participants:

    1) at the request of a person participating in the bankruptcy case, the arbitration court has the right to refer the developer's bankruptcy case to the arbitration court at the location of the construction object or land plot or at the place of residence or location of the majority of construction participants (clause 4 of article 201.1 of the Law bankruptcy);

    2) participants in the construction who have requirements for the transfer of residential premises, and also authorized body executive power subject Russian Federation exercising control and supervision in the field of shared construction of apartment buildings (Article 201.2);

    3) the arbitration court, at the request of the applicant or another person participating in the bankruptcy case of the developer, has the right to take measures to ensure the claims of creditors and the interests of the debtor (interim measures) in the form of a ban on the conclusion of the land lease agreement by the lessor with another person other than the developer, and a prohibition on state registration of such a lease agreement, as well as a prohibition on the landlord's disposal of this land plot otherwise (Article 201.3);

    4) consideration only within the framework of a bankruptcy case, not only monetary claims, but also claims for the transfer of residential premises and other non-monetary claims concerning real estate(Article 201.8);

    5) maintaining a separate register of requirements for the transfer of residential premises (Article 201.7);

    6) the priority of satisfying the claims of construction participants over the claims of creditors for other civil obligations (Article 201.9);

    7) upon sale, 25% of the proceeds are directed to meet the requirements of construction participants (Article 201.14);

    8) the possibility of transferring the construction in progress to the participants in the construction, as well as residential premises (Article 201.10);

    9) resolving issues related to meeting the requirements of construction participants by holding a meeting of construction participants (Article 201.12).

    Despite the rather impressive list of guarantees, there are difficulties in their implementation. Thus, the transfer to participants in the construction of an object of construction in progress can be carried out if the remaining property of the debtor is sufficient to pay off current payments, claims of creditors of the first and second priority; the rights of the pledgees are not violated; after the completion of the construction of residential premises, it is sufficient to meet the requirements of all participants in the construction in relation to a specific construction object; the object of construction in progress belongs to the developer on the right of ownership, etc. If there are not enough funds to pay off current payments and priority claims of creditors of the first and second stage, or the value of the developer's rights in relation to the construction object is more than five percent higher than the amount of claims of construction participants, the transfer of the construction in progress is allowed only on condition that the construction participants contribute funds, respectively, to pay off debts to priority creditors, as well as to reimburse the excess of the cost of the developer's rights.

    As a rule, the construction of residential premises is carried out with the attraction of loans secured by the land plot, as well as the construction object under construction. Therefore, the implementation of citizens' rights to receive residential premises is complicated by the need to regulate relations with the pledgee bank.

    It should also be noted that the main part of the guarantees is focused on those who participate in the construction on the basis of an agreement on participation in the shared construction of an apartment building. At the same time, the participants in the construction and the developer are absolutely autonomous entities, connected only by contractual relations. With housing-building cooperatives, the situation is different: persons contributing funds for the purpose of purchasing residential premises are participants (members) of the cooperative. They have certain corporate rights, which remain with some restrictions and during bankruptcy proceedings, as well as bear the obligations associated with membership in a cooperative.

    The founders (participants) of an insolvent housing cooperative can, by their decision, initiate the introduction of a financial recovery procedure, they can pay off all existing debts of a legal entity for obligatory payments in any of the insolvency proceedings. They also retain the right to participate in the activities of the will-forming bodies of the cooperative within the framework allowed by the relevant bankruptcy procedure.

    The members of the cooperative may have various property claims to it. However, insolvency proceedings only take into account monetary claims. The bankruptcy law prohibits the allocation of a share (share) in the debtor's property or payment of its actual value.

    Considering the possible Negative consequences bankruptcy for members of a housing cooperative, it seems advisable to develop special measures, in particular using state support aimed at preventing the bankruptcy of such cooperatives.

    The question also arises about the effectiveness of remedial measures applied after the initiation of a bankruptcy case for a housing cooperative, in particular, financial recovery. Given the nature and objectives of housing consumer cooperatives, it is obvious that it will be very difficult to get help from third parties. It is also doubtful that the members of the cooperative could pay off the debt. First, with sufficient funds, citizens would hardly decide housing problems by making gradual payments, secondly, in housing and housing-building cooperatives, as in any other consumer cooperatives, subsidiary liability of the members of the cooperative for its debts is provided (paragraph 2 of paragraph 4 of article 116 of the Civil Code). Obviously, the bankruptcy of a housing cooperative occurs if its participants are unable to cover the resulting losses or do not want to do so.

    So, the level of protection of members of housing consumer cooperatives and their status in a bankruptcy case differ depending on whether they carry out construction or reconstruction of apartment buildings and, accordingly, are recognized as developers or participate in a cooperative that acquires ready-made buildings. Members of cooperatives carrying out the construction or reconstruction of apartment buildings have a dual status: on the one hand, they retain the rights associated with membership in a cooperative, on the other, although they are not recognized bankruptcy creditors, however, acquire a number of opportunities as participants in a bankruptcy case. They participate in making a decision on the conclusion of an amicable agreement (clause 9 of Article 201.1 of the Bankruptcy Law), deciding on the transfer of residential premises, have the right to raise objections to the claims of other creditors (clause 6 of Article 201.6 of the Bankruptcy Law), resolving the issue of the transfer of the rights of the developer of an unfinished construction object to a housing construction or other specialized housing cooperative (clause 1 of article 201.10 of the Bankruptcy Law). In the second case, the members of the cooperative are not recognized as participants in the bankruptcy case.

    Such differences, given the generally similar goals of all housing consumer cooperatives, seem unfounded.

    As shows arbitrage practice, the bankruptcy of the HOA is mainly due to non-payment of claims for payment utilities provided to the owners of the premises of an apartment building. Moreover, in a number of cases, the reason for the impossibility of paying off debts was the division of the property of the HOA, which managed several apartment buildings.<6>.

    <6>See: S. Bardin. Partnerships go into bankruptcy // www.bn.ru.

    <7>See: Tokareva E.V. Legal responsibility and the financial viability of a homeowners' partnership as a non-profit organization // Modern law... 2010. N 12. With ..

    <8>See: E. Mishina, Square Masters // www.rg.ru.

    It seems more appropriate to have a special regulation of the bankruptcy of the HOA. It should be aimed at preventing owners from abusing the use of bankruptcy procedures in order to get rid of debts. Indeed, at present, the owners of the premises of an apartment building, who are not even HOA members, make utility payments to the partnership, which directly enters into contractual relations with resource supplying organizations and is responsible to them for the timely and full payment of the supplied resources (clause 6.2, clause 14 of article 155 of the LC). The HOA itself can initiate bankruptcy (clause 1 of article 7 of the Bankruptcy Law). In this case, the claims of creditors not satisfied due to insufficient property of the debtor are considered extinguished (clause 9 of article 142 of the Bankruptcy Law).

    Such cases are few in number, but still occur in judicial practice.

    You can protect the interests of creditors with the help of Art. 10 of the Bankruptcy Law, which provides for subsidiary liability of the founders for the debts of the organization. However, the founders can only be held liable if they are guilty of the debtor's insolvency.

    In addition, the liquidation of the HOA due to its bankruptcy does not prevent the owners of the premises of an apartment building from creating a new partnership. It seems that in the event of the bankruptcy of the HOA, which occurred due to the failure to make payments by the owners of the premises of an apartment building, the creation of a new HOA within a certain period should be excluded, and management should be entrusted to the management organizations selected based on the results of a public competition held by local authorities.

    Another feature - the lack of property of the HOA - leads to the fact that in practice only supervision and bankruptcy proceedings are applied to partnerships. In the rulings of the arbitration courts on the completion of bankruptcy proceedings in respect of the HOA, there is often an indication that the debtor does not have property and funds, measures aimed at detecting the debtor's property and the formation of property and funds from this bankruptcy estate, gave no results<9>.

    <9>For example: Determination of the Arbitration Court of St. Petersburg and Leningrad region from 23.03.2014 N А / 2011 // http://www.spb.arbitr.ru.

    2. Mishina E. Square masters // www.rg.ru.

    3. Tokareva E.V. Legal responsibility and financial viability of a homeowners' partnership as a non-profit organization // Modern Law. 2010. N 12.

    How is the bankruptcy of a housing cooperative

    ZhSK is a type of legal entity. It is a voluntary association of individuals with the aim of meeting their housing needs and house management. Like all legal entities, a housing cooperative can also be declared bankrupt. But the bankruptcy of a housing cooperative has its own characteristics.

    The framework of the law

    ZhSK is very different from different business enterprises and societies. The main legislative regulation is the Housing Code of the Russian Federation. But the legislation also presupposes the presence of certain acts regulating the process of bankruptcy of housing cooperatives.

    Some legislative acts indicate that the housing cooperative is a category of developers. And developers must meet certain requirements that are associated with the transfer of housing to the ownership of other members of the cooperative. In addition, ZhSK is a type of cooperative, but which is subject to the peculiarities of considering insolvency cases.

    Regulatory issues related to the bankruptcy of housing cooperatives practically do not provide for any fundamental differences and peculiarities

    Peculiarities

    Let's take a closer look at the features of the bankruptcy of a housing cooperative:

    After the implementation of these actions in the arbitration court, the following requirements are imposed:

    • availability of ownership in relation to real estate, including the reclamation process;
    • the process of demolishing unauthorized buildings;
    • recognition of a transaction concluded in relation to real estate as illegal;
    • real estate transfer;
    • implementation state registration property rights after the transfer of real estate.

    After the ZhSK is declared bankrupt, all members of this cooperative must draw up and submit to the arbitration court a statement demanding the return of their funds. As an alternative means, they participants can also demand the transfer of ownership of the housing for which they have paid a certain amount of money.

    In such cases, 2 registers are created:

    • register of financial claims;
    • register of persons demanding the transfer of living quarters.
    • The legislation provides for certain guarantees for the protection of HCC participants. If earlier a legal entity could approve a cooperative, then thanks to amended today a legal entity cannot approve a housing cooperative.
    • However, this warranty cannot fully protect the rights and legitimate interests participants of the housing cooperative, as evidenced by the judicial practice of the bankruptcy of housing cooperatives.
    • Many cooperatives are declared bankrupt, and the foreclosure is applied to the property that should have been transferred to the members of the cooperative. Because of this, many are deprived not only of their money, but also of built housing, because until the full payment of the contribution, housing is owned by the cooperative.
    • To remedy this situation, a bill is being developed that prohibits declaring a housing cooperative bankrupt. Such an approach will make it possible to protect the participants of the cooperative from misconduct developers. Many also propose to impose certain penalties.

    The nuances of the bankruptcy of housing cooperatives

    What are the features of the CBM bankruptcy and what are the consequences - read on.

    And what are the nuances of the bankruptcy process of a housing cooperative and how to avoid deception.

    Uncover deception

    Many fall prey to home-building scams. As the specialists of the housing cooperative note, this is the most dangerous way of buying a residential space, since there is a high probability of being deceived, and the number of defrauded real estate investors is growing every day.

    The scheme of deception is quite simple: first, the developer collects money from the equity holders. At the same time, the price for an apartment is indicated quite low, which attracts many. After the money has been collected, the developer begins construction of part of the residential building.

    The rest of the collected money goes offshore, after which the developer is declared bankrupt, leaving behind his debts. Shareholders are offered to continue construction on their own.

    At the same time, the current legislative regulation makes it possible for the housing cooperative to independently change the date of completion of construction. This leads to an even greater violation of the rights of equity holders.

    In order not to become victims of fraudsters, the choice of a developer must be treated very carefully, opting for those firms that have many years of experience and have safely built housing complexes. In addition, you should pay attention to the understated price, which is several times lower than the market value: such offers should be avoided.

    Manager actions

    The bankruptcy administrator plays a central role in the bankruptcy process of a housing cooperative. The main threat that a manager may face is to take the land from the developer, as well as the presence of encumbrances.

    The legislation provides for certain security measures that make it possible to exclude the implementation of illegal actions during bankruptcy.

    As such measures, you can indicate the introduction of a ban on the conclusion of a lease agreement or a ban on the developer's disposal of this land plot, etc. A rather effective measure is also the seizure of the debtor's property. These measures are taken by the bankruptcy commissioner.

    In addition to powers and responsibilities, provided by law on bankruptcy, the trustee in bankruptcy carries out some additional actions in case of bankruptcy housing cooperative

    These include:

    • publication of information (for example, on declaring the developer bankrupt or on transferring the case to another court);
    • notifying the participants of the housing cooperative about the introduction of observation and the moratorium;
    • attracting an appraiser, etc.

    If a member of the housing cooperative learned that the cooperative was declared bankrupt, he should submit a statement of his requirements. The application is presented to the arbitration court, which is considering the bankruptcy case of the housing cooperative. Its text indicates the requirements of the participant. In this case, the participant can demand both the return of his funds and the transfer of real estate.

    If the construction of a residential building has not yet begun or is located on initial stages, then it does not make sense to present a requirement for the transfer of residential premises into ownership. The consequences of this are the impossibility of satisfying their demands.

    What is the essence of the bankruptcy of non-profit organizations - we will tell you.

    Here you can see a sample bankruptcy filing revocation.

    Participants of the housing cooperative can also sue for the recognition of certain transactions concluded by the cooperative as invalid (for example, the contract for the sale and purchase of liquid property of the cooperative). This approach will make it possible to get your money from the developer.

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    Bringing to subsidiary liability in bankruptcy

    Not everyone knows in what cases subsidiary liability in bankruptcy is applicable, as well as its goals.

    In simple words, this is the stage of bankruptcy, at which a third party is liable for the debtor's debts, if:

    • the latter refuses to pay;
    • has no income from which to pay off the debt.

    What it is?

    Subsidiary liability should be understood as the imposition of obligations to repay the debt by one person for the obligations of the debtor.

    This responsibility applies to additional kind responsibility and can only be applied in case of default or improper performance of obligations by the debtor.

    In the event that the bankruptcy of an LLC or other legal entity occurred due to incorrect actions of its participants, who, according to the law, have the right to give any instructions or orders, then this type of responsibility may be imposed on them.

    Law

    The main special regulatory legal act that regulates these legal relationships is the Federal Law "On Insolvency", the purpose of which is to pay off debts to creditors.

    So, one of the ways to protect the interests of creditors and was fixed such a type of liability as subsidiary.

    That is, the creditor has the right to satisfy his claims, if not at the expense of the debtor, then at the expense of another, so to speak, "auxiliary" person.

    So, responsibility can be expressed in the form:

    • compensation for losses;
    • obligations to pay mandatory payments.

    In addition, the law imposes this type of responsibility on the head of the debtor for failure to fulfill the obligations to store and use documents of strict accountability.

    Subsidiary liability in bankruptcy

    The occurrence of additional liability is possible only on the basis of the provisions that are enshrined in constituent documents(Article 121 of the Civil Code of the Russian Federation).

    According to latest changes Any person who is directly related to the debtor or a legal entity can be brought to such liability, in contrast to the wording of the old law, where a certain list of persons was strictly indicated.

    However, in new edition the responsibility of the head and other persons who led the organization appeared.

    In accordance with the law, the founder of the LLC is not liable for the obligations of the company, he has the right to be liable within the limits of his authorized share.

    This means that in the event of the bankruptcy of a legal entity, the founder will be liable only if the organization incurred losses precisely through his fault, which, in turn, must be proven in court.

    If guilt is proven, the founder will be liable within the limits of his personal property.

    Legal entity

    This liability in case of bankruptcy of a legal entity takes place in the following cases:

    • due to illegal actions of its participants or the owner of such property, if the legal entity does not have the funds to settle accounts with creditors;
    • if one of the subsidiaries goes bankrupt due to the fault of the main one, as a result of which the latter will bear additional responsibility for the debts of the subsidiary.

    Leader or director

    In accordance with article 401 of the Civil Code of the Russian Federation, subsidiary responsibility can also be borne by the heads of the enterprise if, as a result of their actions, obstacles were created that led to the bankruptcy of such a legal entity.

    However, such actions on the part of the head must be justified and proven.

    In order for the boss to be responsible, it is necessary to prepare a statement that this person should bear precisely this type of responsibility, basing its arguments on the norms of the law.

    These provisions are duplicated in Article 10 of the Federal Law "On Insolvency".

    The manager will bear additional responsibility if he has violated the following:

    • independently filed an application to the court to declare a legal entity bankrupt;
    • violated the procedure for storing and using financial reporting documents;
    • accepted certain instructions from the control authorities, but did not comply with them, as a result of which the debtor or creditor suffered losses.

    Natural person

    Under additional responsibility natural person it should be understood, first of all, financial responsibility in relation to the total amount owed by the company to creditors.

    Such a person is called a controller (Article 2 of the Federal Law "On Insolvency").

    This means that any individual can bear such responsibility, even if in legal terms it has nothing to do with the debtor, but in fact managed it for the last two years before it became bankrupt.

    A housing construction cooperative is a consumer cooperative that is created by citizens for the purpose of building, as well as managing housing.

    Concerning subsidiary liability members of the housing cooperative in terms of the contributions made, it is quite possible.

    If the cooperative has arrears in payment for utility services as a result of the fact that the owners do not pay for these services, then the members of such a creation bear additional responsibility for the obligations of such a society.

    Jar

    As practice shows, the management of banks, as well as controllers and other employees, whose actions led to the bankruptcy of the bank, bear subsidiary liability within the limits of personal property.

    This rule is based on the principle that in the future bank employees will approach their tasks more responsibly.

    Conditions of occurrence

    Additional liability may arise in the following cases:

    • the debtor is not able to independently answer to the creditor for his obligations;
    • the debtor has no income or other assets that could cover the debt.

    V the above cases responsibility for the fulfillment of the obligations of the debtor may pass to a third party.

    How does the law on bankruptcy of citizens work? Details in this article.

    Application submission

    The application for declaring the debtor bankrupt must be filed with the arbitration court at writing(Article 37 of the Federal Law 127).

    So, the document must contain the following information:

    • the name of the court to which the application is submitted;
    • the total amount of creditors' claims on the disputed obligations of the debtor;
    • the total amount owed in respect of compulsory payments;
    • the reasons why the debtor cannot pay the debt;
    • information about property and assets owned by the debtor;
    • bank account numbers;
    • the amount of the remuneration of the insolvency practitioner;
    • a list of documents that confirm the explanations in the application.

    A sample bankruptcy petition for an individual is here.

    A sample bankruptcy petition for a legal entity is here.

    How to attract?

    In order to bring a person to additional liability, a sufficiently clear work is required on the part of the arbitration manager.

    If the requests and motions are of high quality, there is a better chance of obtaining grounds for a claim.

    If the requests of the manager are inaccurate and have no grounds, and even with a minimum volume, then there will not be much to prosecute for that, because there will be no grounds for satisfying the claim.

    It is for this purpose that creditors, from the beginning of the opening of the bankruptcy procedure, are trying to understand whether the manager understands the goal and in what way it can be achieved.

    After that, a claim is filed with an arbitration court.

    In addition, before going to court, you need to know more detailed information about the debtor - a list of his property. level of income and earnings, place of residence.

    This means that before proceeding to actions, it is necessary to obtain a certain list of information that could be guided in the future in court.

    Initiators

    So, the initiators of bringing persons to subsidiary liability can be:

    • the debtor himself;
    • bankruptcy commissioner;
    • creditor;
    • the decision of the arbitration court - on the basis of the claim received from the arbitration manager and the creditor.

    Limitation period

    When filing a lawsuit to bring persons to subsidiary liability, do not forget about the statute of limitations.

    V this case it is 3 years and starts counting from the moment the court makes a decision on declaring the debtor bankrupt.

    Arbitrage practice

    Judicial practice shows that the application of legislation regarding the imposition of additional liability in the event of a debtor being declared bankrupt is quite rare.

    The main reason for this can be called a rather complex mechanism for applying the above norms, as well as the duration of the process and the procedure for bringing to this type of responsibility.

    However, the use of this type of responsibility can give results in terms of influence on managers and owners of enterprises, who will also feel responsible and will approach their duties with caution, once again thinking about the consequences of this or that action.

    What measures can be taken to prevent bankruptcy credit institutions? Find out here.

    How to file for bankruptcy of an LLC? Read here.

    Today, the legislation seeks to tighten control and punishment for persons who can be brought to this kind of responsibility, which can only have a positive effect on judicial practice.

    However, one should not forget about the interests of the subjects. civil turnover who are conscientious about doing business.

  • Bankruptcy of a housing and construction cooperative

    Housing cooperative is a specific form of a legal entity: a voluntary association of citizens-consumers to meet the needs for housing and management of an apartment building. Legal status Housing cooperative is regulated, inter alia, by housing legislation.

    Despite the fact that the consumer cooperative is non-profit organization and in essence is very different from business companies, the legislation provides for the possibility of bankruptcy of this type legal entities ().

    The Federal Law "On Insolvency (Bankruptcy)" classifies housing cooperatives as developers - persons who attract funds from construction participants who have requirements for the transfer of residential premises or monetary claims... Accordingly, housing cooperatives are subject to the peculiarities of considering cases of bankruptcy of developers, established by paragraph 7 of this federal law.

    At the same time, the legislation on insolvency does not provide for any distinctive features of the bankruptcy of housing cooperatives in comparison with other forms of attracting funds from third parties in construction (equity participation, investment, etc.). The fact that the members of the housing cooperative actually become the owners of residential premises from the moment of full payment of the share (by virtue of the law, and not from the moment of state registration) is not taken into account by the bankruptcy law.

    Bankruptcy procedures for housing cooperatives

    With the introduction of supervision in relation to the housing cooperative, the following requirements can be presented only within the framework of an arbitration case:

    On the recognition / absence of ownership rights in relation to immovable property, on its reclamation;

    About the demolition of an unauthorized building; ... on the recognition of the transaction in respect of real estate as illegal;

    On the transfer of real estate; ... on state registration of the transfer of ownership.

    The members of the cooperative must apply to the arbitration court with the requirements for the return of the deposited funds or the transfer of residential premises. Two registers of claims of construction participants are being formed - a register of claims for the transfer of residential premises and a register of monetary claims.

    The register of requirements for the transfer of housing includes data on what funds still have to be contributed by the construction participant if the obligations under the contract are not fully fulfilled by them. If a cooperative participant does not intend to further participate in the construction, he must declare a demand to terminate the contract and return the funds.V otherwise a member of the cooperative runs the risk of being left homeless and without money.

    The usual order is also formed - current payments, claims of the first, second, third, fourth stages.The requirements of the construction participants for the issuance of housing and funds refer to the requirements of the third priority.

    Insofar as current requirements and the requirements of the first, second stages must be settled before the transfer of the unfinished construction object to the participants in the construction, these requirements can be extinguished by the participants in the construction if the debtor does not have enough funds. The participants in the construction are required to express their will, approved arbitration court... The debtor opens a special bank account in order to finance the construction in progress.

    The general obligation of developers to insure obligations to construction participants for the transfer of residential premises in the case of housing cooperatives is not implemented, respectively, the claims of the members of housing cooperatives cannot be repaid at the expense of such insurance payments.

    There are two mechanisms for repaying the requirements of the members of the housing cooperative for the transfer of residential premises: if there is an object of construction in progress, a new housing construction cooperative is created - for its completion, while many conditions must be observed; if the construction of the object of a bankrupt housing cooperative is completed, the living quarters are transferred to the members of the housing cooperative.

    In general, the legal scheme of bankruptcy cases for housing cooperatives is complex and confusing, its implementation in practice depends on many factors and is complicated by the collision of interests not only of different queues of creditors, but also the position of members of the cooperative from the same queue. The resolution of issues arising in connection with the consideration of the case is carried out at a meeting of participants in the construction, in which other creditors have the right to participate. Obviously, it will be difficult for persons with different interests in obtaining money or housing to come to an agreement.

    Yana Polskaya

    Analyst lawyer. I am writing articles, looking for interesting information and suggesting ways to do it practical use... I believe that thanks to high-quality legal analytics, clients come to a law firm, and not vice versa. Do you agree? Then let's be friends on facebook .

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