The Supreme Court supported residents in the fight against forgery of documents when changing the management code

The struggle for the management of apartment buildings (MCDs) has reached a new level. The problem of changing the management code without the consent of the majority of apartment owners was of interest to the Supreme Court of the Russian Federation (SC). He decided to give citizens the opportunity to resist the forgery of documents from the general meeting of residents through state housing inspections. Lawyers support the position of the Supreme Court, but note that it will not solve all the problems in the MKD management market.

The economic board of the Supreme Court was considering two disputes between the same management company and the St. Petersburg housing inspectorate regarding the transfer of houses to management. In one of the cases, a decision was made by the panel and, according to lawyers, it changes the current approach in practice.

In December 2021, LLC GK D.O.M. Kolpino” submitted an application to the housing inspectorate to make an entry in the register of licenses for a specific house. Such a record confirms that the company has the right to manage it. Attached to the application were copies of the minutes of the general meeting of owners (GMS) of the premises of the house dated November 29, 2021, the management agreement for the apartment building and the register of owners. The documents showed that the owners of 54.16% of the areas took part in the voting.

But the inspectorate suspended consideration of the application of “GK D.O.M. Kolpino”, as she had previously received a statement regarding the same house from another management company with reference to the OSS dated November 5, 2021. During the same period, the department received statements from the owners of 14 apartments in the building that they did not participate in the meeting on November 29, although they were listed in the documents of “GK D.O.M. Kolpino. Based on the results of the inspection, the housing inspectorate decided that the owners of 44.68% of the areas participated in the meeting on November 29 and there was no quorum. Therefore, in February 2022, the department refused to “GK D.O.M. Kolpino.

The Criminal Code challenged the refusal order in court, saying that the inspection had gone beyond its powers. The arbitration courts of the first and appellate instances rejected the claim of the Criminal Code, but the district cassation satisfied it. According to the cassation, the housing inspectorate does not have the authority to check the legality of the OSS decision and “establish the nullity” of such a decision without going to court.

Based on a complaint from the housing inspectorate, the case was transferred to the Economic College of the Supreme Court. The inspectorate insisted that when considering the application, the Criminal Code “not only has the right, but also the obligation to examine the decision for signs of insignificance” and, if they are identified, “to refuse to make appropriate changes to the register of licenses.” The board supported the housing inspectorate.

It follows from the decision of the Supreme Court that the inspectorate acts as a state housing supervision body, which forms and maintains a register of licenses for the management of apartment buildings. The inspection “does not determine the legal fate of the decision of the general meeting,” the Supreme Court noted, but checks the documents of the Criminal Code for compliance with the established rules. This follows from clause 5 of the Procedure and deadlines for making changes to the register of licenses, approved by order of the Ministry of Construction and Housing and Communal Services of the Russian Federation dated December 25, 2015 No. 938/pr.

In this case, based on the results of an inspection “for compliance with the conditions of reliability of information”, as well as “the absence of signs of nullity of the OSS decision” on civil grounds, the inspectorate made a decision to refuse. In addition, in conditions when two management companies applied for one house at once, the inspectorate was obliged to suspend consideration of the application and conduct an inspection, the board noted. A similar case regarding another house on the same street will be considered by the Economic College on January 24.

“Disputes over the right to manage houses have become commonplace in the last 10–15 years,” notes Sergei Sergeev, head of legal support for disputes in the field of housing and communal services and real estate management at Yakovlev and Partners law group. Since “the main administrative act for obtaining the status of a management company is the OSS protocol, it is this that is mainly falsified.” “In order to solve the problem, in 2015, the activity of managing apartment buildings became licensed. Companies must submit the OSS protocol for inspection to the state housing inspectorate,” explains the lawyer.

Meanwhile, “raider seizures of houses and falsification of OSS decisions continue, and most of the stories are connected not with private management companies, but with those near the government,” says Susana Kirakosyan, deputy chairman of the RF Chamber of Commerce and Industry committee on entrepreneurship in the housing and communal services sector. She clarifies that about 70% of OSS decisions on the selection of management companies are disputed due to the lack of quorum: “This is due to a large number of requirements for the form and content of decisions made, and the procedure for holding a meeting.”

But there is another problem, Mr. Sergeev clarifies: “Over time, housing inspectorates began to reject clean and legitimate protocols for reasons of non-compliance with sometimes simply fictitious requirements.” All this resulted in legal proceedings, which led to the fact that in 2021-2022 the Supreme Court tried to limit the scope of discretion of the housing inspectorate and its powers. After this, the lawyer notes, “many decided that now the inspection does not decide anything,” does not have the right to check documents relating to the OSS, and “absolutely everything needs to be examined.”

Executive Director of the NP Housing and Public Utilities Control Sergei Sokhranov supports the new decision of the Supreme Court: “This will confirm the right of housing inspectors, prescribed in regulations, to use a mechanism to counter unscrupulous management companies, confirms their authority to check documents and refuse to make an entry in the register.” Mr. Sergeev agrees with him: “The Housing Inspectorate, as an administrative body, is not vested with the right to cancel decisions of legitimate general meetings. But it has the right to carry out checks, including checking the quorum and refusing the management committee if signs of the insignificance of the meeting are identified. The Criminal Code still has the opportunity to challenge the refusal in court by proving that the citizens’ signatures were real.”

At the same time, Mr. Sokhranov notes that the recognition of powers does not mean that the inspectorates will be able to fully use them: “Most of these bodies are experiencing a staff shortage.” In addition, “any instrument of control in the hands of the authorities can be used both for good and for harm if it falls into the wrong hands,” Mr. Sokhranov emphasizes, so the housing inspection cannot be considered “the only filter to counter all unscrupulous management companies.” Ms. Kirakosyan agrees that “you shouldn’t completely rely on the protection of the administrative body”; it is better to go to court, “teaming up with the friendly Criminal Code, which they tried to replace.” However, “the judicial path for citizens, of course, is much longer and more difficult,” admits Mr. Sokhranov.

To systematically solve the problem, the legislation needs to be changed, lawyers say. Thus, according to Ms. Kirakosyan, it is necessary to “reconsider the procedure for concluding management agreements for apartment buildings”, limit the range of issues requiring approval from the OSS to the most important ones, and “law enforcement agencies must respond in a timely manner to the statement of even one tenant about falsifying the minutes of the meeting.”

Anna Zanina