Rights of housing cooperatives to a land plot. How can a member of a construction cooperative register a land plot for the construction of an individual residential building, formed by dividing a land plot provided by a housing cooperative. Land under an apartment building for rent or with

Housing cooperatives have been known since Soviet times, but since then the conditions for entry and participation in them have changed. Despite the fact that cooperatives are quite rare in the modern world, they still exist 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 includes individuals for joint construction or purchase of housing. However, in practice, explains Maria Litinetskaya, managing partner of Metrium Group, they today play a different role than their prototypes from the Soviet era. At that time, building cooperatives were partially financed by the state or enterprise, and therefore were a real instrument for providing the population with housing. Of course, these days not a single voluntary association of shareholders has enough money to build an apartment building. Therefore, housing construction cooperatives are most often created by 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 to be able to attract Money:

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

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

Before changes were made to the law on housing construction cooperatives in mid-2016, tightening 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 the cooperative carrying out the construction. Currently, 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 secured in any way.

Current legislation in the field of housing cooperatives contains a mandatory requirement to maintain a publicly accessible register of members indicating the size of the share contribution and the specific residential premises to be transferred upon completion of construction of the house.

IN general view The scheme for participation in housing cooperatives currently looks like this: the developer creates a housing construction cooperative, which attracts potential buyers of apartments in residential complex. Buyers sign a participation agreement with the cooperative and become its shareholders. The housing cooperative, in turn, enters into an investment contract with the developer and directs the collected funds from shareholders to the construction of housing. Despite the apparent simplicity of the scheme, there are many pitfalls that can play both in favor of the buyer and against him. They will be discussed in more detail below.

Pitfalls of a housing cooperative

Perhaps the main feature of buying an apartment through a housing cooperative is the absence of an equity participation agreement (DPA). All acquisition conditions are regulated by the agreement of participation in the 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 created 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, warns Maria Litinetskaya. 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 specified in the charter or participation agreement. Therefore, it is impossible to present a penalty in case of violation of construction deadlines. The procedure for returning funds is stipulated in the statutory documents, so if the cooperative has financial problems, getting your money back is problematic. Finally, the contract itself with housing cooperatives 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 an agreement has been concluded with another person for the same apartment.

There are other risks for the housing cooperative participant, related not to the formalization of the relationship, but to the legal status cooperative and shareholder. Thus, 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 Law on the Protection of Consumer Rights. This deprives a member of a 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 identified shortcomings and construction defects.

Finally, another significant disadvantage of purchasing 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 lack of state registration of legal relations associated with the purchase of an apartment under such a scheme is a less reliable instrument than a registered agreement for participation in shared construction.

Despite a large number of disadvantages, housing cooperatives also have their advantages. Thus, participation in a housing construction cooperative allows you to receive installments for a long period. For example, Etalon City offers installments until 2023, notes Natalya Barankova, lawyer at Peresvet-Invest JSC. When selling apartments by concluding a DDU, installment plans are usually provided until the end of construction. After putting the house into operation and registering ownership rights, the participant in shared construction becomes the owner of the apartment.

In addition, after completion of construction, the right to manage the house automatically passes to the members of the housing cooperative, who can transform the cooperative into a HOA - a homeowners' partnership. Thus, buyers themselves can choose a management company (MC), whereas with a DDU, the selection of a management company for a completed house remains the prerogative of the developer.

Another advantage for a member of a housing cooperative, says Renata Belyaeva, head of the legal department of the KASKAD 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 the general meeting of members of the housing construction cooperative, and this gives it the right to control the implementation of the provisions of the charter and act in the interests of the members of the housing cooperative.

And, probably, the biggest advantage of purchasing an apartment in a housing cooperative is the 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 property.

Renata Belyaeva also draws the attention of potential buyers to the fact that currently the legislation on legal relations with housing cooperatives has become significantly stricter. Obligations for the cooperative to disclose information to members of housing cooperatives and regulatory authorities in the field of construction were introduced. Fines have been introduced for violation of the legislation on attracting funds from citizens with deviations from the requirements of the law in an administrative manner in the amount of 500 thousand to 1 million rubles, criminal liability has been introduced for persons guilty of attracting funds from citizens bypassing 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.

Is there a future for housing cooperatives?

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

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

As a rule, housing cooperatives are used by developers as a temporary scheme to attract client funds in the absence of the necessary permitting documentation, in particular, registered ownership or lease rights to a land plot, as well as a published project declaration. After receiving the necessary documents, developers usually re-sign equity participation agreements with the housing cooperative participants.

Maria Litinetskaya believes that in the foreseeable future this scheme will not be popular while there is a significantly safer way to participate in shared construction - preschool education. The use of housing cooperatives by developers will continue to be sporadic.

Thus, if there is a real opportunity to purchase an apartment in a housing cooperative, you need to weigh all the pros and cons and decide whether it is suitable this method exactly for you.

Especially for the portal "All Novostroiki.ru"

On the territory of the Alfa housing cooperative, the opportunity and right to register for a long-term lease of land plots on which residential buildings are located are available to residents who have officially registered their ownership rights to houses built or acquired by them on the territory of the cooperative, i.e., who have State Registration Certificates in their hands rights to the object.

Due to the fact that each land plot on which the house of a specific resident of the village is located, previously allocated to him in accordance with the developer’s agreement, is part of the general (initial) land plot at the disposal of the Alfa housing complex on the basis of a land lease agreement with the City Department property of the city of Moscow, a resident who has decided to formalize the lease of a plot must, first of all, conclude an agreement with the Alfa housing cooperative on the conditions for the withdrawal of this plot from the Cooperative’s lands. To do this, you must submit a corresponding application addressed to the Chairman of the Board of Alfa Housing Insurance Company. The application can be submitted either in paper form at the office of the board or on the Internet via Personal Area resident, located at lk.site.

The agreement concluded between the housing cooperative "Alpha" and the resident on the withdrawal of a land plot from the Cooperative lands is supported by a copy from the general plan of the Cooperative site for the withdrawn plot. If the applicant does not have the specified copy (which is also Appendix 1 to the developer’s agreement), its production can be ordered simultaneously with the submission of an application for the preparation of the above-mentioned agreement.

All further actions, the ultimate goal of which is the conclusion of a long-term lease of a land plot, the owner of the house has the right to carry out both independently and through a person trusted/authorized by him.

Any legal operation or transaction with real estate, the subject of which is a land plot, is impossible if information about this plot is not in the state real estate cadastre and it is not assigned a state registration number (cadastral number). Without registering a land plot with the state cadastral register, it is impossible to conclude a lease agreement for it.

To register a property for cadastral registration, this object must first be formed (that is, created, formed as a plot). The formation of a land plot is carried out by drawing up an appropriate boundary plan for this plot. A boundary plan is a package of documents that reflects information or clarifications on a land plot and contains its main characteristics necessary for registering it with the cadastral register. The preparation of the boundary plan is carried out by cadastral engineers specially certified for these purposes on the basis of contractual relationships.

Cadastral engineers carry out a complex of boundary works in order to establish the actual boundaries of the land plot, including the geodetic coordinates of the site. After survey work is completed, information about the land plot is submitted to the Moscow City Property Department for the preparation and issuance of an order approving the layout of the land plot on the cadastral map (plan) of the territory in the city of Moscow. After the issuance of this order, a boundary plan is drawn up directly for transmission to the cadastral chamber of the city of Moscow, which, in turn, on the basis of the boundary plan, carries out cadastral registration and state registration of the land plot. After completing the process of registering a land plot and registering it with the cadastral register, an application for assistance is submitted to the Moscow City Property Department public services for the provision of a land plot for rent to the copyright holder of a building or structure located on the land plot.

The duration of the process for providing a land plot for lease, which includes the entire complex of the above-mentioned measures, based on established practice, is at least 6 months.

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

RBC Real Estate understands the intricacies of the new law on housing construction cooperatives (HCS). The amendments are intended to simplify the mechanisms for creating cooperatives with state support and significantly increase the number of citizens who will be able to build their own housing.

Photo: TASS/Interpress/Svetlana Kholyavchuk

On September 1, 2016, changes to Federal Law No. 161-FZ “On promoting the development of housing construction” came into force in Russia. The amendments are intended to simplify the mechanisms for the creation and operation of housing construction cooperatives (HCS) 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-Real Estate 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, as follows from the agency’s materials.

Housing and construction cooperatives created in accordance with Law No. 161-FZ differ significantly from those previously organized by some developers, AHML told RBC Real Estate. According to the agency's experts, housing construction will cost cooperative shareholders on average 30% less than market value due to the provision of free land plots to AHML, the lack of a developer's margin and the reduction of contractor costs (for servicing loans, marketing, etc.). In housing cooperatives with state support, the risks of defrauded shareholders 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 government authorities, the agency explained. Housing cooperatives created by new scheme, independently control the expenditure of funds, the selection of design organizations and contractors. The legislation also establishes a ban on the voluntary liquidation of a cooperative before the date of transfer of residential premises into the ownership of all its members.

Housing cooperatives in the USSR

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

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 Sokol village 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.

Cooperatives were revived again in 1958 by a resolution of the Council of Ministers. At that time, this was required by an acute housing shortage, which arose due to a sharp increase in the urban population. Funds from shareholders were raised for construction, but the state provided a loan in the amount of 70% of the cost of housing for a period of 20 years. However, the majority of the population still could not afford it. In addition, there was also a waiting list to join Soviet cooperatives, and 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 on the transfer of a land plot after payment of 20% of share contributions has been cancelled), as well as eliminating the risk of defrauded shareholders. These amendments, according to AHML, will make it possible to build affordable housing on lands transferred by the agency for free use to cooperatives, which will improve the living conditions of Russians of the relevant categories.

In addition to the changes to No. 161-FZ, amendments have been prepared to Housing Code RF, which make it possible for members of cooperatives with state support to attract credit funds to pay a share fee secured by a share (by analogy with a mortgage secured by equity participation agreements - DPP).

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

as amended, valid until 09/01/2016	as amended, effective from 01.09.2016
Lack of the right to purchase residential premises or land for citizens who joined the housing cooperative and subsequently ceased to belong to the corresponding categories	Reservation of the right to purchase residential premises or land for citizens who joined the housing cooperative and subsequently ceased to belong to the corresponding categories

Availability of a condition for the transfer of land after making 20% of the share contributions	Cancellation of the condition on the transfer of land after making 20% of the share contributions

Compliance of housing under construction with the criteria for classification as economic class	There is no requirement for housing under construction to meet the criteria for classification as economic class

Submitting a petition to the housing cooperative to admit 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

New amendments are also planned to the resolutions of the Government of the Russian Federation, 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 in the category young specialist may include one of the family members;
eliminating the restriction on the presence of a child in a young family;
eliminating restrictions on need and availability of land;
reducing the work experience limit to one year;
exclusion of restrictions for employees who are administrative, technical and maintenance personnel;
the possibility of employees of enterprises and organizations with state participation (in which the state share is 50% or more) joining the housing cooperative;
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, shareholders of housing cooperatives can be citizens who meet certain criteria: 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 education. educational institutions, employees of educational institutions and healthcare and cultural institutions, as well as employees of organizations of the military-industrial complex and federal government employees.

In this case, one member of the housing cooperative has the right to own one share, which corresponds to the right to acquire ownership of one residential premises. According to AHML expert estimates, the above legislative changes will allow us to significantly increase the number of citizens who will be able to build themselves housing at a price significantly lower than the market price.

How to organize a housing cooperative

The decision to organize a housing cooperative is made by a meeting of founders, at which the charter of the housing cooperative is also approved, corresponding to the established standard form. The charter defines the procedure for forming the property of the cooperative, admitting members of the cooperative and expulsion from the cooperative, the procedure for holding general meetings of the cooperative, the competence of the board, chairman, audit commission, and the procedure for paying the value of shares in the event of leaving the cooperative.

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

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

Housing cooperatives can also be transferred free of charge architectural projects 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 based on a written request from the cooperative.

It should be noted that AHML, in order to provide housing and construction cooperatives, involves land plots from federal ownership into circulation, including those in use by state authorities and institutions. At the same time, the ability of AHML 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.

Procedure for creating a housing cooperative:

contacting the 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 an application to AHML for the provision of a land plot;
formation of a land plot for the purpose of further transfer to the cooperative;
creation and registration of housing cooperatives;
submitting an application to AHML for the transfer of a land plot for free use;
adoption by the AHML board of a decision to transfer the land plot to the cooperative;
signing an agreement for the free use of a land plot;
construction of apartment buildings, blocked-off buildings or individual housing construction projects, as well as engineering infrastructure within the boundaries of these land plots;

The procedure for registering a land plot by members of garage-building cooperatives

For those who have not yet managed to register the land plot under the State Land Construction Company as their property or do not know how to do this, the Agency of State Property and Land Relations together with the Regional Land and Property information center and the Association of Garage and Construction Cooperatives developed a detailed procedure for registering a land plot in two versions.

FIRST OPTION – registration of land according to general rules land legislation.

It is applied when the land plot is under the right of permanent (indefinite) use or lease from GSK. At the same time, the garage boxes have been registered in the cadastral register, and the ownership rights of the GSK members in relation to all or part of the garage boxes have been registered.

In this case, the procedure for registering ownership of garages is simplified, since a commissioning certificate is not required. However, when registering such a plot of land, members of the GSK may encounter a problem when the boundaries of the plot are not established or the garage boxes occupy a larger area than they were provided with. Another difficulty is that not all members of the GSK want to register the land plot as common shared ownership or for lease.

In the first option, members of the GSK do not fall under the law “On Garage Amnesty”, because This law is aimed at registering land plots under garages that cannot be acquired by members of a garage-building cooperative as their property on the grounds and in the manner established by the legislation of the Russian Federation.

In order to register ownership of garage boxes, members of the GSK need to contact the Rosreestr Office, providing the following documents: passport; receipt of payment of the state fee for registration of property rights; notarized power of attorney; GSK certificate confirming full payment of share contributions; certificate of copyright holder.

If the boundaries of the plot are not established, GSK orders a boundary plan of the land plot from the cadastral engineer and contacts the State Property Agency to enter information about the boundaries of the land plot into the Unified State Register real estate.

If the land plot has a GSK lease right, the chairman applies to the State Property Agency with an application to terminate the land plot lease agreement. The application must contain the following information: name and address legal entity; date, lease agreement number and cadastral number of the land plot. A passport and protocol are attached to the application general meeting GSK. Within 30 calendar days, the State Property Agency reviews the application and prepares a draft agreement on termination of the lease agreement.

If the right of permanent (perpetual) use of the State Property Committee has been registered for the land plot, then the chairman applies to the State Property Agency with an application indicating: the name, address of the legal entity, cadastral number of the plot. The application must be accompanied by: passport; minutes of the general meeting of the GSK; a copy of the document confirming the state registration of a legal entity (for a legal entity); extract from the Unified State Register of Real Estate; documents certifying the right to land. The State Property Agency reviews the application within a month and prepares a draft order on termination of the right to permanent (indefinite) use of the land plot.

To acquire a land plot in common shared ownership or for lease with a plurality of persons on the tenant side, members of the State Property Committee apply to the State Property Agency with an application for the provision of a land plot without holding a tender.

The application must indicate:

FULL NAME;
address, passport details;
cadastral number of the plot, basis for provision;
the type of right under which the applicant wishes to purchase the land;
details of the decision on seizure (if the site is seized for state and municipal needs);
purpose of use;
lease term;

address for contacting the applicant.

The following documents are attached to the application:

passport;
a document certifying the applicants’ rights to the premises of garage boxes;
a document establishing the rights of the applicants to the land plot;
a list of structures on the land plot owned by the applicant, indicating the addresses and cadastral numbers of the buildings.

Applications from members of the State Property Committee are considered by the State Property Agency within 30 calendar days. Based on the results of the review, a draft purchase and sale agreement or land lease agreement is prepared. After the parties sign contracts for the sale or lease of a land plot, state registration of the rights of GSK members to a land plot is carried out in the Office of Rosreestr for the Ulyanovsk Region.

SECOND OPTION – registration of a land plot into the common shared ownership of members of the garage cooperative in accordance with the law “On Garage Amnesty”.

If there are no primary documents for the provision of a land plot for the construction of a civil society building, or there is no construction permit due to the lack of documents for the land, and, accordingly, the garage boxes are not registered in the cadastral register and are not registered as the property of citizens, members of the civil society building have the right to purchase a land plot in common shared ownership for free.

To form a land plot, members of the State Property Committee have the right to apply to the State Property Agency with an application for approval of the layout of the land plot on the cadastral plan of the territory, attaching to it a diagram prepared cadastral engineer. Based on the results of consideration of the application, a decision is made to approve the layout of the land plot on the cadastral plan of the territory, which is the basis for registering the land plot with the state cadastral register.

To acquire a plot of land into common shared ownership free of charge, members of the GSK apply to the State Property Agency with an application in which indicate:

Full name, address, passport details, cadastral number of the requested land plot;
the basis for the provision of the land plot;
type of right to purchase;
details of the decision to seize the site for state or municipal needs (if any);
purpose of use;
details of the decision to approve the document territorial planning(if the land plot is provided for the placement of objects);
details of the decision on preliminary approval of the provision of the plot (if the land plot was formed or its boundaries were clarified);
applicant's address.

The following are attached to the application:

copy of the passport;
a copy of the charter of the garage cooperative, certified by the chairman of the GSK;
a copy of the document confirming the powers of the chairman of the State Committee;
list of GSK members; certificate of full payment of the share contribution;
a copy of documents confirming the allocation of a land plot to the garage cooperative;
conclusion on the compliance of the capital construction project with the requirements of urban planning standards and fire safety rules;
extract from the Unified State Register of Real Estate.

Applications from members of the State Property Committee are considered by the State Property Agency within 30 calendar days. Based on the results of the consideration, a draft order is being prepared to provide ownership of a land plot free of charge, which is the basis for state registration of the ownership rights of GSK members to a land plot in the Office of Rosreestr for the Ulyanovsk Region.

Information provided by the State Property Agency
and land relations of the Ulyanovsk region

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1. Land plots of a unified development institution may be transferred for free use to cooperatives created to provide housing for citizens specified in Part 4 of this article, in accordance with the federal laws regulating the activities of such cooperatives, taking into account the specifics established by this article. Land plots of the unified development institution are transferred to cooperatives for free use for the construction of apartment buildings, residential buildings, including individual housing construction projects, and the construction of engineering infrastructure within the boundaries of these land plots.