A housing cooperative is an alternative way to buy a home. Apartment through a housing savings cooperative

In addition to traditional mortgage lending, there are other ways to solve the housing problem. For example, to buy a house with the help of a housing savings cooperative. This article provides detailed instructions for action, the advantages and disadvantages of acquiring an apartment through the ZhNK.

The housing savings cooperative is a non-profit structure organized on a voluntary basis. The purpose of the structure is to provide housing for each member of the community. ZHNK operates on the principle of a mutual benefit fund.

The scheme by which the ZhNK works

1. Every capable citizen of the Russian Federation who has reached the age of majority can become a member of the ZHC.

2. After the entry into the duties of each member of the cooperative, regular replenishment of the general fund with contributions is included. For convenience, a comfortable savings scheme is created: the terms and amount of the amount paid / monthly or quarterly contribution are determined in advance.

3. You can buy an apartment (use funds from the general cash desk) subject to two rules:

• The cumulative amount will reach 50% of the cost of housing.
• The obligatory accumulation period will end (at least 2 years is established by law).

The installment period should not exceed the accumulative period of the mutual funds by more than 1.5 times.

4. You can register in the purchased apartment. You must systematically repay the loan to the cooperative in installments. In addition to the main debt, you pay a membership fee of 3-7% of the amount owed.

5. Only after fully paying off the cooperative, the housing becomes your property. You cease to be a member of the cooperative.

The procedure for joining the JNC:

1. Contact the ZhNK office. On the spot, carefully read the proposed documents and terms of membership.

2. Discuss the form of participation with representatives of the cooperative, in other words, your rights and obligations.

3. Write an application for joining the housing and communal services and the desire to purchase an apartment. Sign an agreement/agreement with the cooperative.

4. Pay all necessary receipts (first membership fee).

The procedure requires 2 of your documents:

• the passport;
• any second document that identifies you personally.

)

• low interest on the loan;
• minor additional costs in the process of obtaining a loan;
• minimum initial payment;
• there is no need to confirm your financial capabilities;
• existing housing or a housing certificate can act as collateral.

disadvantages

• an apartment in a mortgage can be purchased immediately. Under a housing savings system, you become a homeowner only when you accumulate a portion of the value of the home;
• limited term of the loan;
• you cannot be the owner of the apartment until the final payment of contributions;
• high risks of unsuccessful financial activities of ZhNK. The utmost care and awareness will be required from you before choosing a co-op.

How to choose a cooperative and what to look for in order not to fall into the hands of scammers

• Having your own website will confirm that the cooperative really exists and does not evade the tax service.
• Pay attention to the office of the cooperative. Luxuriously furnished offices should alert you. The funds of the current cooperative purposefully go only to the construction and purchase of housing for investors, and not to create a cozy interior.
• On the walls of the office of the cooperative, as a rule, there are information boards. If possible, find out by whom and when the cooperative was created, ask for a charter, certificate of state registration, investment agreement. Please note that ZhNK cannot have a license (this type of activity is not licensed).
• Ask about the current state of affairs. Ask about the amount of share contributions made, how much and where it was distributed, how many apartments have been bought at the moment.

A housing savings cooperative (HSC) is similar to a mutual benefit fund - a shareholder contributes part of the money for an apartment, and the cooperative pays the rest. Sofya Lebedeva, the general director of MIEL-Novostroyki, told the portal the site about the features of the ZhNK and the risks associated with the purchase of real estate under such a scheme.

What is ZHNK

A housing savings cooperative (HSC) is a voluntary association of citizens created to purchase housing with the help of jointly accumulated share contributions. ZhNK is regulated by 215-FZ and other laws that control the activities of consumer cooperatives.

According to the legislation, the cooperative has the right to use the funds of shareholders for the purchase or construction of housing (including in apartment buildings). Also, the ZhNK can act as a developer itself, or play the role of a participant in shared construction (using common funds). The minimum number of members of the cooperative is 50 people, and the maximum is 5000. Any citizen who has reached the age of 16 can join the organization.

The process of joining the JNC is quite simple:

1. the future participant writes an application for joining the organization in accordance with the Charter of the cooperative and 215-FZ;

2. after a positive decision of the management of the ZhNK on the admission of a citizen to the organization, information about him is entered in the unified state register of legal entities (according to 129-FZ);

3. the participant pays the entrance fee and the first share fee;

4. After the shareholder receives a document confirming his membership in the cooperative. This may be a share accumulation agreement or a similar one, for example, an agreement for participation in a ZhNK.

At the same time, the legislation does not provide for a minimum contribution for joining a housing savings cooperative - each association determines this amount independently.

It should be noted that cooperatives also independently calculate the size of share contributions and the amount by which a participant can accumulate housing or start building it. Also, the management of the ZhNK appoints a schedule for making share contributions and possible conditions attraction of borrowed funds.

That is, by joining the cooperative, the participant makes an initial contribution. Then, according to the schedule, he pays share contributions, and, having accumulated the required amount, he buys an apartment for himself (ready-made or in a house under construction). Then he, also according to the schedule, pays the rest of the cost of the apartment no later than the deadline specified as the maximum for repayment. Of course, the calculations take into account the fact that the share contributions of the members of the association must compensate for the organizational costs of the ZhNK. In other words, shareholders still pay membership fees (more often this is a small percentage of the cost of housing, for example, 0.05%).

Forms of participation in ZhNK there are a wide variety.

The main requirements for the form of ZhNK are compliance with current legislation and the reliability of the organization from a financial point of view. It should be clarified that the form of participation in the ZhNK means the method of making share contributions (schedule), their sizes, as well as the conditions under which the participant can purchase an apartment (the amount that needs to be accumulated, for example, 50% of the total cost of the apartment).

According to paragraph 2. Article 27 215-FZ forms of participation in the ZhNK must establish:

1. the minimum and maximum periods for making share contributions, the minimum amount of contributions (or the method for determining their size), the part of the share contribution, after the accumulation of which the cooperative may purchase an apartment for a participant or begin its construction;

2. the maximum period intended for the repayment of the remaining part of the share contribution;

3. the size and schedule of payments on account of the share contribution;

4. possible conditions for attracting borrowed funds.

Separately, it is worth noting that a member of the ZhNK can contribute part of the share contribution to the offset of the old apartment (as in the system of mutual offsets link). It should be remembered that in this case, real estate is sold, as a rule, at a price below the market value.

It is noteworthy that maternity capital can be used as contributions to the ZhNK. This possibility is regulated by clause 2 of Decree of the Government of the Russian Federation of December 12, 2007 N 862 (as amended on March 25, 2013).

The main advantages of buying real estate under the ZHNK scheme include:

1. minimum down payment;

2. no need to provide a large package of documents for joining a cooperative;

3. low interest when repaying the payment for an apartment by installments.

As for the risks of acquiring an apartment under the ZhNK scheme, they primarily include the standard disadvantages of participating in any consumer cooperative. Firstly, this is the possibility of exclusion from the cooperative by decision of the general meeting. Secondly, the possibility of losses associated with the costs of the activities of the cooperative (within their share savings). Thirdly, the presence of an entrance fee to the ZhNK, which is practically not included in the cost of the purchased apartment and monthly / annual membership fees, as well as the presence of the risk of additional payments in case of losses of the ZhNK.

The main risk of buying real estate under this scheme is the fact that until the cooperative member pays the full cost, the apartment belongs to the ZhNK. Thus, for a long time, the buyer cannot dispose of his property and, in the event of the bankruptcy of the cooperative, risks being in a very disadvantageous position.

To minimize these risks, before joining the ZhNK, it is necessary to carefully study all its documents. First of all, you need to familiarize yourself with the Charter of the ZhNK (check its compliance with Article 18 of 215-FZ). It is important to make sure that the ZhNK exists (order an extract from the Unified State Register of Legal Entities). It is also worth understanding how honestly the cooperative operates - to compare the number of members of the association with the number of apartments acquired through it.

In order to avoid a sharp increase in the cost of an apartment after the payment of the main part of the share, it is necessary to carefully study what is written in the share contribution indexation agreement (it is important to note that the legislation does not establish an indexation framework), and also insist on limiting the growth in housing costs to reasonable limits.

After joining the ZHC, you should receive certified copies of the relevant documents (a copy of the decision on admission and a copy of the minutes of the meeting).

In case of early exit from the ZhNK, the shareholder loses the entrance fee and membership fees. Also, a penalty may be imposed on him for failure to fulfill obligations to the cooperative (the amount cannot exceed 1/300 of the refinancing rate of the Central Bank of the Russian Federation for each day of delay in payment). Moreover, according to paragraph 4. Article 32 of 215-FZ, the return of the share contribution may take up to two years. In the event that the apartment has already been transferred to the shareholder, the return of this contribution is made after the release of the housing.

In general, it should be noted that the legislation copes well with the regulation of ZhNK, so this market is actively developing, and is likely to increase. Although now the share of sales of apartments in new buildings through ZhNK is not large compared to other forms of purchasing apartments.

The main difference between a housing cooperative and a residential housing cooperative is that a housing cooperative is created for the construction of one specific building, while a housing cooperative is not limited to such a narrow framework and can direct its funds to purchase apartments in a variety of houses.

Almost all housing cooperatives currently operate solely on the basis of FZ-214, civil and housing codes of the Russian Federation. And the activities of ZhNK are mainly regulated by the special law FZ-215 “On housing savings cooperatives”.

Also, these two forms differ in the principles of accumulation and use of share contributions. ZhNK are more like mutual aid funds - part of the money for the apartment is contributed by the shareholder, and the rest is paid by the cooperative. Subsequently, the shareholder returns the loan and pays interest for its use. At the same time, the longer the period of accumulation of the down payment, the longer the repayment period of the loan. In housing cooperatives, share contributions are entirely directed to the construction of a house.

The disadvantages of housing cooperatives include the risk of introducing additional Money in the event that the association cannot build a house on the basis of share contributions from all members of the cooperative. Settling in apartments owned by housing cooperatives is possible until the full payment of the share, while the terms of its payment are regulated only by the charter of the cooperative and / or the share accumulation agreement.

The disadvantages of ZHNK include the length of the period of accumulation of the minimum contribution, during which the shareholder cannot enter the apartment being purchased. And also the fact that, even having moved into an apartment, he is not its owner until the debt to the cooperative is fully repaid.

However, when buying an apartment under any of the schemes - both ZhNK and ZhSK, the participant is not the owner of the property until the moment the share is paid in full and cannot receive a property tax deduction until the debt is repaid.

Publication date July 15, 2014

A housing savings cooperative is an association of persons whose activities are aimed at buying housing. Members make share contributions that are used to build an apartment building or purchase pre-existing square meters.

the main goal

Citizens wishing to purchase housing and independently manage an apartment building often organize various associations.

ZhNK in this case is one of the most convenient ways to implement such intentions. The main goal of the association is to provide participants with housing on favorable terms and with minimal risks.

Basic Rights and Responsibilities

ZHNK is entity, therefore, after making a decision to create an organization, it is necessary to register it.

To carry out the registration procedure, the chairman of the cooperative is obliged to provide the Rosreestr with a standard package of documents. Reference: any other authorized person can perform this duty.

The necessary governing bodies must function in the ZhNK. In addition to the chairman, the organization must have an audit commission, a board and a meeting of participants. As for the rights of the ZhNK, the members of the organization can create unique constituent documents and with their help achieve the goal.

For example, it is usually required that more than half of the participants vote to make any decisions. But the Statute of the WNC may spell out completely different conditions under which two-thirds of the votes are required for a successful vote. Naturally, constituent documents must be drawn up in accordance with Russian legislation.

Responsibility of ZhNK

ZhNK as a legal entity is obliged to bear certain responsibility for its activities. No. 215-FZ on housing savings cooperatives, regulates the activities of the organization and contains a number of rules indicating the fulfillment of obligations to creditors.

All accounts payable by the cooperative are the responsibility of each member. In other words, all members of the ZhNK are obliged to answer to creditors with all the common property of the organization, therefore the responsibility is distributed equally among all.

As an organization, the WNC is obliged to provide the participants with services of the appropriate level. Otherwise, any member of the association has the right to check the activities of the cooperative, and then file an appropriate complaint or challenge the work of the enterprise in court.

Who can become a member?

A member of a housing savings cooperative is a citizen of the Russian Federation who has reached the age of 16. The main duty of each member of the cooperative is to timely make their share contributions.

In order to join the organization, it is enough to provide personal documents, an application and an entrance fee, the amount of which is determined by the constituent documents.

ZHNK independently calculates the amount of initial and subsequent contributions. A schedule is drawn up according to which the shareholder undertakes to make them.

But in addition to payments for the purchase of an apartment, cooperative members are required to pay membership fees.

The rights of a member of a cooperative include:

• taking part in the management of the ZhNK;
• use of the services provided by the organization;
• receiving property after depositing funds;
• use of benefits, if they are provided for by the Charter;
• obtaining information about the financial activities of ZhNK;
• transfer of their rights to a share to third parties.

In addition to the rights, the member of the cooperative has its own obligations:

• compliance with the rules of the organization;
• making payments without delay;
• payment of additional expenses.

As soon as a citizen becomes a member of the cooperative, the board decides whether to provide him with the necessary living space. That is, a person can live in an apartment and pay his share. Naturally, property rights are limited until the full amount is paid. Therefore, a member of the ZhNK cannot, for example, sell real estate.

Advantages and disadvantages

There are quite a lot of various organizations whose purpose is to provide participants with housing.

Therefore, when choosing a cooperative, you need to familiarize yourself with all its pluses and minuses. The advantages of the WNC are as follows:

1. assistance of the cooperative for paperwork. The participant can use the information base of the organization.
2. Involvement of trusted banking institutions. ZhNK always try to cooperate with well-known and reliable banks, which minimizes the likelihood of losing the capital of the cooperative.
3. Participants have the opportunity to choose their own accommodation.
4. Members of the cooperative do not overpay the real cost of housing, as is the case with mortgage lending.
5. When purchasing housing with the help of this association, participants are exempt from paying taxes. It also significantly affects the value of real estate.

The main disadvantages of the association are:

1. absence of state registration of contracts. Because of this, cases of fraud sometimes occur, for example, one apartment may have several owners.
2. Additional spending. It is rare that an organization involved in the construction or purchase of apartments requires participants to pay additional costs. But in ZhNK it may be possible, therefore, before joining the organization, it will not be superfluous to check the constituent documents.
3. Issues with refunds. When leaving the organization, participants can only count on receiving earmarked contributions. Yes, and then after going through a certain legal procedure. Savings contributions of ZHNK members are usually non-refundable.
4. List of responsibilities of association. Usually it is minimal, and the procedure for providing housing is not clearly prescribed in the contracts. Therefore, members of the cooperative may receive an apartment much later than expected.
5. Shareholders do not have the opportunity to insure risks.

Before making a decision to participate in ZHNK, it is necessary to take into account all the risks and consult with a specialist.

Reorganization and liquidation of a housing savings cooperative

ZhNK as a legal entity can be reorganized or liquidated. Reorganization is provided if:

• merger of companies;
• division of the organization;
• accession of another cooperative;
• conversion to another form, for example, HOA.

Liquidation can be forced, that is, by a court decision. This is possible if the ZHNK violates the law or goes bankrupt. Voluntary liquidation is usually carried out if the cooperative has fulfilled its tasks.

At the same time, the risks borne by the participants of the cooperative should be taken into account:

• collective responsibility;
• loss of funds upon liquidation of the association;
• additional expenses.

If the ZHNK is created for fraudulent purposes, the participants are unlikely to be able to receive apartments or return the invested funds.

It's important to know!

There are nuances that every participant entering the cooperative must be aware of:

• after the registration procedure, you should receive copies of the decision on admission to membership and a copy of the minutes of the board meeting;
• when studying the contract, you need to check what is indicated in it about the indexation of share contributions (the indexation framework is not provided for by law);
• in case of early exit from the cooperative, participants often have to pay a penalty;
• until the share is paid in full, the property belongs to the ZhNK, and if the organization goes bankrupt, the shareholder risks losing the apartment.

Conclusion

With all the shortcomings, a housing savings cooperative can be an ideal solution to the housing problem. Legislation is constantly changing, so the regulation of the activities of such cooperatives is improving. This means that members of the WNC acquire additional rights and guarantees.

This is a simple and convenient way to purchase housing. But participation in a cooperative is associated with certain risks. Therefore, it is important to carefully check all the documentation and the contract that is concluded with the organization.

The direct predecessors of housing savings cooperatives in Russia were housing construction (housing cooperatives). These cooperatives actually lost their cooperative status from the moment when the legislator recognized the ownership of the apartment for members who paid their share in full. Politically, such a measure was more than just, if we take into account the legislation on the privatization of state housing stock, which allowed the free transfer of state housing into the ownership of their tenants. However, legally, this meant the beginning of the end of housing cooperatives as a cooperative form of meeting the need for housing. From now on, their life span was determined by the moment of full payment of the shares by the members of the cooperative, after which they no longer had any influence on the process of disposing of living space and could, at best, count on transformation into a house management organization 1 “...Housing construction cooperatives... which have been known to us since Soviet times. They were created to improve the living conditions of citizens, attracting money from private individuals. They once built the so-called "cooperative" houses. Now these housing cooperatives are actually engaged only in the operation of the housing stock and, according to the new Housing Code of the Russian Federation, should be transformed into homeowners' associations ”(Filippova E.S. Housing cooperatives in modern Russia // Lawyer. 2006. No. 8., which was supposed to act no longer on cooperative, but on general commercial, i.e. on capitalist principles. Here, the number of votes belonging to each participant should have already depended on the size of the area occupied by him. And the concept of "share" has ceased to have any legal meaning.

Meanwhile, a feature of the cooperative organizational-legal form of management is the stability of its property base. Withdrawal from the members of the cooperative usually does not entail any requirements for the departing to the property created or acquired as a result of the activities of the cooperative. Everything is limited, as a rule, to the payment of share accumulation (most often paid share contributions) to the retiring share minus the general cooperative losses falling on his share. Thus, the continuity of generations is ensured, which does not allow the current composition of cooperators to steal property that will be used by those who come to replace them. Changes in the cooperative legislation of the transitional period actually turned housing construction cooperatives into a kind of construction and credit intermediaries: the cooperative accepted an individual for paying part of the initial construction cost of the apartment, attracted funds from outside to finance the construction of a residential building, subsequently attributed all these expenses on shares of members of the cooperative, until the full payment, the share retained the ownership of the apartment transferred for use to its member, and after the share was paid, the shareholder's ownership of the apartment could be registered. It is difficult to say how this mechanism differs from the sale by installments of payment and with the preservation of the right of ownership until the moment of full payment for the sold item. Is that the external side: registration of membership in the housing cooperative, and not a contract of sale.

But it was precisely these changes that created the ground for the transition of housing cooperatives to a new form of activity: raising funds from the population not for a specific living space in a specific residential building under construction (individually defined living space 2 It is hardly possible to call it an individually defined thing, since the building is the thing, not the room in it.), but for a certain living space (individual residential building, apartment or even a room of certain generic characteristics) with payment in installments and subsequent transfer to ownership. But formally, they had nothing to do with such business and relied solely on the generally permissible nature of civil law norms, which allowed, at least in the opinion of those who saw this principle in the content of the Civil Code of the Russian Federation and acted as its defender, to engage in any entrepreneurial activity, directly not prohibited by law. True, housing cooperatives were considered non-profit organizations, which means that they were allowed to engage in entrepreneurial activities insofar as it did not contradict the achievement of the goals for which they were created, and corresponded to these goals (clause 3 of article 50 of the Civil Code of the Russian Federation). However, this vague formulation, at best, made it possible to prove that such a correspondence was obvious, since it was all about the same goal of satisfying the need for living space for members of the cooperative (even if it was not managed by the cooperative), and at worst, that this activity was not is entrepreneurial, since the cooperative does not pursue the goal of making a profit in it.

We know that demand creates supply. New housing cooperatives entered the market. New housing cooperatives are organizations built on the principle of housing cooperatives, but their history begins in the 2000s. They differ from the "old" housing cooperatives in that they are active in the real estate market - they attract funds from the population and finance the purchase of housing for their shareholders at the expense of this money, both in the primary and secondary markets. These housing cooperatives, investing in new construction, began to conclude investment agreements between the cooperative and members, in which they acted as customers, and members of the cooperative as investors. On the basis of such agreements, apartments were subsequently transferred to members of the cooperative 3 See: Sokol P. Protecting the rights of investors when investing in construction.7 Law and Economics. 2004. No. 10.. Until the beginning of 2005, their activities were regulated by the Civil Code of the Russian Federation and were not actually controlled by the state, but after the Federal Law “On Housing Savings Cooperatives” dated December 30, 2004 No. 215-FZ came into force on April 1, 2004, all organizations using in their activities, the housing savings of citizens, during the year, i.e. before April 1, 2006, they had to either re-register as a ZhNK or stop attracting money from the population.

Prototypes of ZhNK appeared in Russia long before the adoption of the law on them. For example, in the Republic of Bashkortostan back in 1996, a consumer cooperative of financial support for citizens in purchasing housing was created, which basically implements a funded scheme for purchasing housing in installments. From 1998-2000 similar cooperatives have become very popular in other regions of the country.

Starting from the second half of the 1990s, in practice, many organizations began to intensively implement housing savings programs. In addition to housing, housing construction, housing savings cooperatives, consumer cooperatives have begun to do this, joint-stock companies, limited partnerships and organizations of other legal forms, including cooperative unions. With the adoption of the Federal Law “On Housing Savings Cooperatives”, only housing savings, housing and housing construction cooperatives will be able to engage in this activity. The constituent documents of all organizations engaged in activities to attract and use citizens' funds for the purchase of residential premises are subject to alignment with the new law, with the exception of the constituent documents of housing and housing construction cooperatives (clause 2, article 57 of the Federal Law "On Housing Savings cooperatives").

But attempts to circumvent this requirement of the Law in one form or another have not stopped and, apparently, will not stop in the foreseeable future. It was noted in the literature that a number of cooperatives, without waiting for the end of this transitional period, had already decided to transform themselves, not into ZHNK, but into the so-called consumer mortgage cooperatives (PIK). The desire to separate and create new type cooperative was dictated by the unwillingness of the founders of PIK to be in the scope of the Law on ZhNK due to the fact that this law, in their opinion, was not sufficiently developed.

There is no doubt that the form of the so-called consumer mortgage cooperative does not comply with the new legislation. It is not clear on what basis its inventors decided that the structures created according to their drawings are not subject to the Law on ZHNK. The law contains a provision that the ZhNK provides an apartment in the ownership of its shareholder only after he fully pays the share contribution. PIK decided differently: they immediately give the apartment ownership and draw up a mortgage on it. Meanwhile, the technology incorporated in the Law on ZhNK includes all possible options participation of a citizen in the authorized capital of a legal entity, the property provision for which is the right to housing. Thus, it is not the method of providing living quarters and not the moment when the right of ownership arises, but the attraction of funds from the population in the right to participate, paid for by the provision of living quarters, constitute the essence of the financial and economic mechanism protected by the Law on ZhNK, which is correctly drawn attention to in the legal literature.

In fact, both ZhNK and PIK attract money from the population, using fundamentally the same schemes from the point of view of the law. Proceeding from this logic, the activities of PIK should be subject to the Law on ZhNK. So far, it is not known about any sanctions in relation to PIK by the state and regulatory bodies, since as a result of their application, shareholders will suffer first of all. However, the legal status of PIK has now been determined, and their participants and responsible persons must understand that no one is going to create another law on mortgage savings cooperatives for them. From here, until the transformation or liquidation of these cooperatives, the norms governing the activities of ZhNK will have to be applied to their activities. Especially in terms of guarantees of the rights of PIK members to share contributions and housing.

The very term "housing savings cooperative" is an original creation of Russian legal technology, which is not found anywhere else in the world. It's not that no one else in the world is involved in attracting funds from the population to special accounts and deposits under the obligation to transfer housing for use or ownership. No, such commercial activity is quite developed, including in the cooperative sector of the economy. And in Russia itself, housing-construction cooperatives have been actively engaged in it for a long time. But their traditional capabilities, initially focused on the construction and operation of only one residential building, turned out to be clearly insufficient in the new conditions, characterized by the growth of pent-up demand for housing and the rapid development of capital construction. There was an opportunity to "play on the housing market" without taking on the burdensome functions of a developer, customer 4 In Soviet times, the housing cooperative actually did not even have this function, which made them hostages of the administrative-command system. The contractor did not formally bear responsibility to them, and OKSs and UKSs of local councils and even enterprises, institutions and organizations under which housing construction cooperatives were also created, did not answer even more so. The role of the beneficiary was reduced to the participation of representatives of the housing cooperative in the acceptance of the object, stating the shortcomings and waiting for their elimination with symbolic penalties for violating the deadlines. “Unfinished work” in cooperative houses was a widespread phenomenon in Soviet times, although less odious in nature and scale than imperfections in houses built at the expense of the budget., and even the functions of a housing management company. Intermediary services provided by the right to dispose of the transferred funds and the right of ownership of the residential premises until it is fully paid turned out to be not only more attractive, but in essence and the only possible way to preserve the housing cooperative as a cooperative form of meeting the needs of the household of its members in residential premises, after the Russian legislator deprived them of the opportunity to own apartments, and made the common structures and non-residential premises of the house the subject of the right of common ownership of persons who are owners of residential premises. In this case, the housing cooperative is left with only the functions of a house management company, although sufficient to maintain the cooperative nature at the level of a modified cooperative with a relatively constant number of members, but not very attractive compared to the financial opportunities provided by the cooperative form of the housing sector by participating in transactions with housing facilities.

The current RF LC still prohibits housing and housing-construction cooperatives from having more members than the number of residential premises in an apartment building under construction or acquired by a cooperative (Article 112 of the RF LC). The artificial cutting off of Russian housing cooperatives from business, which, from their point of view, was a natural development of their cooperative essence in the new conditions, did not eliminate the very need for the legal organization of such a business. Attempts by the housing cooperatives themselves to circumvent the requirement of the Housing Code of the Russian Federation with the help of a holey shield, made up of the notorious principle of “permissible orientation of civil law norms” and an open list of non-profit legal entities, expressed in the appearance of the most bizarre names, were perceived by the legislator and in the literature as a corporate masquerade 5 See: Commentary on the Housing Code of the Russian Federation (item-by-article). 2nd ed., corrected, supplemented. / Under the total. ed. V.M. Zhuikov). M.: Law firm "Kontrakt", 2007. Hence the assertion that with the adoption of the Law on ZhNK "a new mechanism has been launched on the real estate market - a housing savings cooperative" (Grechishnikova E.I. Housing savings cooperative as a mechanism for attracting investment in construction // Civil Law, 2007, No. 2, p. 17), does not accurately convey the actual state of affairs. The idea has already matured and even received visible forms in the housing market, but existed without the direct approval of the legislator, since in most cases the current civil law considers such consent to be superfluous. And if it were not for the sad experience of the financial pyramids that Russia acquired, and not the specifics of Russian housing cooperatives, which were originally created as the simplest consumer cooperatives and did not have experience in managing large property complexes and attracting financial resources from a large number of investors, then such an intervention most likely would not have been required. would. After all, unlike the ZhNK, which is being created “from scratch”, housing cooperatives already had a property base in their assets in the form of the common property of their members, which they managed.. The end to the hopes associated with dressing up was put an end to the Federal Law "On Housing Savings Cooperatives" by introducing a new player on the housing market - housing savings cooperatives.

Thus, in Russia the legislator considered it necessary to separate the functions of managing the "housing" savings of citizens in order to purchase housing from the functions of managing housing complexes.

For comparison, we can cite the example of the German Housing and Construction Cooperative under the name “Sparund Bauverein Solingen eG”, which is difficult to translate into Russian. 6 A rough translation might look like this: "Registered Cooperative Savings and Building Association Solingen.", founded back in 1897. It has 14,213 members owning 30,604 shares with a total value of 15.5 million euros. The housing complex of the cooperative is formed by 1828 houses, 7308 apartments with a total area of ​​491,000 sq. m, 1429 parking lots and garages and 38 production units. Its financial condition for 2005 was characterized by the following figures: balance sheet total - 200 million euros: savings on members' deposits - 47 million euros (more than 13,000 savings accounts); modernization costs - 7.4 million euros; repair costs - 9.1 million euros; financing of new construction - 4.8 million euros. Operating fee - 4.48 euros.

The combination of the functions of attracting funds from the population under obligations to provide housing with the functions of financing the construction and management of the housing stock for the same cooperative organization is not at all considered impossible here, just as it is not considered possible to limit this organization to the number of residential buildings, premises and members, since this is generally contrary to nature. a cooperative characterized by an open composition of members, even if we are talking about “patriarchal cooperatives” tied exclusively to the place of their origin.

Along with housing construction, rental housing and management of housing stock, the cooperative offers its members attractive models of savings accounts with high interest and investment programs. 7 www.sbv-solingen.de. In one person, as it were, a housing and housing construction cooperative, a housing savings cooperative and a credit cooperative, an investment fund are combined. And all this does not interfere with the cooperative form of management. On the contrary, it creates great advantages for members of the cooperative through additional benefits that they receive under special programs of the cooperative (construction of recreation areas, places of meetings and leisure and sports events provided to members of the cooperative on preferential terms) 8 All this is generally achieved in Russia by programs for the construction of elite housing, inaccessible to persons whose expectations can be realized by a cooperative form of acquiring living space.. At the same time, the owner of the property, including apartments provided to the members of the cooperative for living, remains the cooperative, and the members are the "ideal equity holders" (ideeller Teilhaber) of the cooperative 9 That is, the owners of ideal shares. and thereby co-owners of their apartments, retaining the right to lifelong residence and participation in the management of the affairs of the cooperative.

The housing savings cooperative is classified by law as a type of consumer cooperative. In accordance with paragraph 1 of Art. 2 Laws

housing savings cooperative ... - a consumer cooperative established as a voluntary association of citizens on the basis of membership in order to meet the needs of members of the cooperative in residential premises by combining share contributions by members of the cooperative.

As we have already found out earlier (see § 1), the consumer cooperative in the European classification belongs to the category of socially oriented cooperatives, whose task is to satisfy by economic means the various needs of the personal economy of its members, as well as other general economic and social needs. At the same time, a private household is understood as a private household in the broadest sense of the word. 10 The needs of the economy are satisfied if the cooperative, acting by economic methods, for example, by promoting savings or income, supports the members of the cooperative in meeting the needs of their livelihoods.. According to the Russian legal classification, a consumer cooperative is a voluntary association of citizens and legal entities on the basis of membership in order to meet the material and other needs of the participants, carried out by combining property shares by its members - clause 1 of Art. 116 of the Civil Code of the Russian Federation, the wording of which is reproduced almost verbatim in the definition of the Law.

Historically, both production and consumer cooperatives "grow from the same root" and rely on common cooperative principles. This justifies the criticism of the Civil Code of the Russian Federation, which artificially divided these two homogeneous types of legal entities on the basis of the purpose of making profit, which is difficult to formalize, by individual representatives of Russian legal science. Some of them (T.E. Abova, S.V. Tychinin) propose to return to the old doctrine, recognizing cooperatives as a single special legal form, others (Andreev V.K., Novak D.V.) - to consider all cooperatives as commercial legal entities.

General cooperative features are voluntary membership, democratic rather than capitalist principle of management - minimizing the influence of capital on management (one person - one vote), focusing on the priority satisfaction of the needs of cooperative members, a variable number of members due to free entry and exit, democratic internal structure, consolidation of property share contributions and participation of members of the cooperative in covering the losses of the latter.

In Russian legal literature hallmarks cooperative organizational-legal form (features of cooperatives of any kind that differ from other types of legal entities) are:

1. membership, which is the organizational basis for the formation of a cooperative;
2. democratic principles of governance (in particular, one participant - one vote);
3. making property share contributions by members of the cooperative;
4. satisfaction of the material and other needs of the members of the cooperative as the main goal of the association of citizens and legal entities into a cooperative.

V.V. Dolinskaya points to the following general cooperative features: “A cooperative is a voluntary association of persons on the basis of membership for the joint achievement of certain goals on the basis of the union of its members (participants) of property shares, for which, after their transfer to the cooperative, the ownership right arises from the cooperative itself , and its participants acquire the rights of claim, which can be exercised under the conditions established by law.

The sign of the association of property shares, however, is an indispensable specific feature of the cooperative only under Russian law. The laws of European countries are aware of cooperatives with symbolic share contributions, even in the field of industrial entrepreneurial activity. True, there such cooperatives are rather an exception to the general rule, accompanied by additional restrictions on the status of such a cooperative, aimed at preserving its cooperative nature, designed to prevent its degeneration into an economic company (dividend partnership).

At the same time, share contributions as a source of financing the activities of production cooperatives have lost their former importance everywhere. Exceptions, of course, remain, especially in Russia. Here, share and other contributions still play a significant role in the activities of housing, housing construction, garage and garage construction companies. 11 If those still remain not in the documentary-linguistic variant, not de nomine. In one of the most recent publications on non-profit organizations, garage-building cooperatives are still mentioned among the existing ones, but the author is no longer able to attach any normative act to them that determines their legal status, so they are in the list given with the appearance of a Kazan orphan meekly awaiting its fate. And this fate, most likely, in most cases seems unenviable. In any case, in large cities the functions of garage-building cooperatives have already been taken over by purely commercial structures, and cooperative garage complexes, which are also cooperative in name and built according to the wretched standards of the Soviet period, will be demolished under any more or less plausible pretext with a minimum payment possible compensation., housing savings, as well as credit and insurance (mutual insurance companies) consumer cooperatives. For consumer societies, as well as for production cooperatives, the share contribution forms the initial capital, determines the minimum amount of their property. 12 It is no accident, apparently, that the consumer society is sometimes referred to as a kind of production cooperative..

The most specific features of a consumer cooperative are considered to be its belonging to a group of non-commercial legal entities and the way to meet the needs of its members who are not directly involved in its economic activities, but are the exclusive consumers of its services.

The division of legal entities into commercial and non-commercial is feature modern Russian legal order. However, it is not characteristic of all European legal orders. The point is also that the term “commercial” itself and, accordingly, the term “non-commercial” etymologically express an attributive attitude to commercial (in the broad sense of civil) turnover. In its literal sense, the first should be used for persons whose activities are exclusively or mainly related to trade, civil circulation, and the second - for persons who participate in it occasionally or do not participate at all. 13 It seems that prof. E.A. Sukhanov and his followers generally deny these latter persons the need to have the status of a legal entity, while reasonably relying on the provisions of Russian legislation, and since they are for the civilist beyond the bounds of reality accessible to his scientific tools, they can simply not be taken into account in the future. reasoning..

In Russian civil law (theory and legislation), however, the decisive feature was not the degree and method of participation in the commercial (civil) turnover, but the goal of making a profit, dividing all legal entities participating in this turnover into commercial (pursuing such a goal) and non-commercial (not pursuing such a goal). Economically, everything looks perfect, since the commercial (civil) turnover for persons pursuing the goal of making a profit acquires in their person the main and permanent participant. But the “goal of making a profit” turns out to be unsuitable for formalization by legal means, representing not the external, formal, but essential side of the activity of an agent of economic relations, a general trend, and not an obligatory property of every even a professional participant in economic turnover. As Klaus Canaris rightly noted on this occasion, “one who takes part in economic life for a fee cannot be treated differently from other subjects of commercial turnover, just because he does not seek profit. Desire to receive it, therefore, although de facto typical, is nevertheless de jure not an obligatory sign of trade and the status of a merchant. To avoid such a danger, in Russia it was necessary to resort to an artificial method - to forcibly register some legal entities in a group of those that ipso lege "are obliged to have the goal of making a profit", and others - in a group whose membership prohibits the pursuit of profit. In this case, a "profit objective" is merely presumed, but not required. Commercial from these positions is also only entrepreneurial activity, the purpose of which is to make a profit. The result in this case is not mandatory, but natural 13 “Since making a profit is the goal of entrepreneurial activity, and not its obligatory real result, the absence of profit from this activity in itself does not serve as a basis for concluding that such activity is not entrepreneurial” (paragraph 12 of the Review of Judicial Practice in Civil Cases (BVSR. 1997. No. 10)..

Only this, perhaps, serves as a practical justification for the existing classification of legal entities in Russia into commercial and non-commercial. But since no effective incentives to comply with this general compulsory declaration of intent could be found in real life, additional means had to be resorted to (prohibition of the distribution of profits among participants, founders' control, licensing, and others).

At the same time, one circumstance also escapes sight: profit as a result is a natural consequence of any entrepreneurial activity, but it can also be obtained as a result of other economic activities (trade in licenses, advertising spaces, issuance of visas, collection of fees and duties, etc.) 14 Of course, if we talk about profit in the formally “legal interpretation” of a part of income that exceeds the costs of any activity.. Profit as a goal, on the contrary, is inherent only to persons engaged in entrepreneurial activities, but, firstly, not to activities as such, and, secondly, not to all absolutely persons engaged in entrepreneurial activities. You can pursue the goal of making a profit by engaging in entrepreneurial and other economic activity, and not to receive it, and, on the contrary, it is possible not to pursue the goal of making a profit, but to receive it, being engaged exclusively in entrepreneurial activity.

The foregoing gives reason to doubt the indisputability, universality and even the classical nature of the existing division of legal entities into commercial and non-commercial entities in the Civil Code of the Russian Federation on the basis of making a profit and to think about what benefits, in comparison with this, the replacement of the profit criterion with the criterion of grounds for participation in civil circulation can provide. Those legal entities for which such participation is caused by the constant need for a compensated alienation of the results of professionally carried out activities (sale of goods, paid performance of work or provision of services) could be considered commercial with much greater certainty than all those who, by virtue of a direct indication of the law and the charter must pursue the goal of making a profit.

Such activity, even if it cannot be attributed to entrepreneurial activity on the basis of making a profit, will always be an economic, economic activity. Those who enter into relations of civil circulation only as a consumer of the offered goods, works and services can rightly be called non-commercial legal entities. Implementation commercial activities persons with the status of a non-profit organization can be allowed only if they are subject to all the private and public law consequences of such activities, including bankruptcy and liability of the founders.

In other words, with the condition of "suspension of their non-commercial status" for the entire period of commercial (entrepreneurial) activity. In particular, this should concern the so-called commercialization of the main activity of a non-profit organization (educational, medical and other similar services of public institutions). Exceptions can be stipulated in the law where there are outwardly similar, but essentially completely non-commercial types of activity (paid provision of public services, etc.).

A consumer cooperative from this point of view would be a typical commercial organization, since its activities are related to the provision of services to its members through its own economic activities, although the latter is not necessarily related to making a profit. 14 The difficulties associated with using the goal of systematic profit-making to qualify the legal entity as an entrepreneurial structure, and the consolidation of structures that bring cooperatives closer to companies, lead to the fact that, as a result, the main activity of many cooperatives becomes profit-making. Hence the conclusion is drawn that "such legal entities only hide behind the organizational and legal form of a consumer cooperative, but in reality they do not differ in any way from commercial organizations." Meanwhile, making a profit (even systematic, even as a result of the main activity) is not yet an argument for denying the cooperative nature of a consumer cooperative. All this rather indicates the imperfection of the division of legal entities into commercial and non-commercial..

Another feature of a consumer cooperative is release of a cooperative member from the obligation of personal participation in his economic activities. The presence of shareholders who are not connected by personal labor participation is the second fundamental feature of a consumer cooperative, in everything else, according to S.V. Tychinin, not significantly different from other cooperatives 15 See: Tychinin S.V. Consumer cooperation from the standpoint of civil law. In other words, S.V. Tychinin not only excludes, but, on the contrary, allows the commercial activity of a consumer cooperative..

“In a consumer cooperative, the objects of consumption of members of the cooperative are things, works, services produced directly by the cooperative or other organizations. A consumer cooperative provides items, works, services to members of the cooperative through trade organized by it, construction, operation of a built or acquired object, etc. A member of a consumer cooperative is not obliged to take personal labor participation in the activities of the cooperative. If he works in a cooperative, then his relations with the cooperative are regulated by labor legislation for employees.

This provision, however, cannot be accepted without taking into account the content of paragraph 1 of Art. 4 of the Federal Law "On Agricultural Cooperation" dated December 8, 1995 No. 193-F3, obliging all members of an agricultural consumer cooperative to personally participate in its economic activities. Most likely, this is not just a trivial technical error, even if one can somehow be established 16 In any case, this is the first thing that comes to mind when you read that in this case, the legislator refers to consumer cooperatives as processing, marketing (trading), servicing, supplying, horticultural, horticultural, livestock and other cooperatives created ... to fulfill one or more of these activities. It remains to ask oneself, what then belongs to the share of production cooperatives - only the actual production (growing) of agricultural products? After all, each of these "consumer" cooperatives, if it were not made up of agricultural producers, would deserve the status of an ordinary production cooperative.. Personal participation in general, of course, is an obligatory sign of a production cooperative. But it is historically generally inherent in cooperation as such, which is primarily an association of individuals, not capitals. Nevertheless, personal participation in the main economic activity of a consumer cooperative is required and perhaps not always, which is why cooperatives should also be recognized in which the cooperative mandate is realized in exclusive consumer transactions with members of the cooperative (mandatory personal participation as the other party to the transaction 17 By the way, compulsory personal labor participation can also be considered as the subject of the same exclusive transaction, since participation in a cooperative is based on the principle of voluntariness. From here, production cooperatives that do not require mandatory personal labor participation (marketing, processing, procurement, etc.) become possible.). But this, however, does not mean that this feature, which manifests itself depending on the subject of the cooperative's activity and the professional qualities of its members, should be formulated as an imperative principle. The charter of such a cooperative must each time freely determine whether the personal participation of a member of the cooperative in its economic activity is required or not.

Members of consumer cooperatives today can be not only individuals, but also legal entities. For a consumer cooperative, the participation of a legal entity is no longer a matter of the statutory autonomy of the cooperative, but a right granted to a legal entity by law. Here, therefore, the secondary or, as T.E. Abov, a multi-level cooperative (cooperative association) is a common thing.

Income received by a consumer cooperative from business activities carried out in accordance with the law and the charter, in exception to the general rule provided for in paragraph 1 of Art. 50 of the Civil Code of the Russian Federation, is distributed among its members (clause 5, article 116 of the Civil Code of the Russian Federation). It must be said that the distribution of profits (income) is rather a Russian exception to the cooperative principle of the inadmissibility of distributing the profits received except in cases expressly provided for by the charter, and only to the extent that does not infringe on the needs of the cooperative itself. Civil scientists have expressed a fair opinion that the rule according to which the income received by a consumer cooperative can be divided among its members contradicts its essence as a non-profit organization. 18 Interview with dr. legal sciences, prof., head. department of civil Law, Dean of Law. Faculty of Moscow State University M.V. Lomonosova E.A. Sukhanov // Legislation. 1998. No. 10. P. 3.. To this one could add that the matter is not only in the non-commercial nature of the cooperative, but in the general cooperative principle, which allows the distribution of profits within limited limits (in terms of the formation of share accumulation within the share, in some other cases) and necessarily taking into account the interests of the cooperative. Its members do not receive dividends, but part of the income of the cooperative, depending on their participation in its commercial (economic) activities. In essence, we are talking about either remuneration for work, or payment for the participation of a member of the cooperative in a different form (but not in the form of investments) - for example, depending on the share in the total volume of trade.

The Civil Code of the Russian Federation in terms of the model of legal regulation of cooperatives opens the way for the French model of cooperative legislation, which prefers special legislation on certain types of cooperation to the general law. Consumer cooperatives and cooperatives have their own rules there. retail, production labor cooperatives and craftsmen's cooperatives, cooperative banks, agricultural cooperatives and - mainly in the framework of social housing construction - housing cooperatives. Of particular interest are also cooperative types designed for small groups and professions, such as architectural and medical cooperatives, transport and fishing cooperatives.

The Civil Code of the Russian Federation also does not define the areas in which consumer cooperatives operate, their management bodies, the regime of property of these cooperatives. The legal status of consumer cooperatives, the rights and obligations of their members must, within the meaning of the Civil Code of the Russian Federation, be determined by laws on consumer cooperatives. Currently, the activities of consumer societies and their unions are regulated by the Law on Consumer Cooperation. The organization and activities of consumer cooperatives in agriculture are established by the Federal Law "On Agricultural Cooperation" dated December 8, 1995 No. 19E-FZ. A cooperative as an organizational form of a non-profit organization is provided for in the Federal Law “On Horticultural, Gardening and Dacha Non-Commercial Associations of Citizens” dated April 15, 1998 No. 66-FZ (as amended on March 21, 2002). On August 7, 2001, the Federal Law “On Credit Consumer Cooperatives of Citizens” No. 117-FZ was adopted. There is still no certainty in regulating the activities of such common consumer cooperatives as garage cooperatives.

In terms of their socio-economic function, consumer cooperatives occupy a clearly intermediate position between production cooperatives and public organizations, representing a kind of symbiosis between them. Like a production cooperative, a consumer cooperative basically has an egoistic beginning to satisfy its own and mainly material needs of its members, who pool their property to achieve such goals. Like a production cooperative, a consumer cooperative therefore cannot but engage in economic, mainly entrepreneurial, activities and even distribute the profits received among its members. But in contrast to a production cooperative, such distribution should be of a secondary, auxiliary nature in the formation of a share of a member of a consumer cooperative who is not obliged to participate in the activities of the cooperative.

A consumer cooperative is a corporation created by individuals who transfer their property to it in order to meet their certain (mainly material) needs in return for this cooperative. There is another essential feature that distinguishes cooperatives from all other collective forms of satisfying needs. This feature lies in the nature of the main activity of any cooperative. It consists either in the production (processing) of material goods, or in the organization of their sale, storage, supply of the cooperative members with the goods they need, organization of the construction of the necessary facilities, management of property that serves the common needs of the cooperative members, etc. In other words, the activities of cooperatives are always economic, economic activities.

With public organizations, consumer cooperatives have a common goal - the satisfaction of needs, however, here in most cases and mostly intangible 19 One should not be mistaken about the ethereal nature of the needs of members of public organizations and the sterility of the spiritual aspirations of this organization itself. While on the ground, they cannot avoid contact with its soil layer: the economic (and sometimes directly entrepreneurial) activities of public organizations and material incentives for their most active members are a necessary payment for survival in market conditions. When the law speaks of the joint satisfaction of spiritual and other non-material interests, it is silent about the price that is required for achieving such a goal, because the satisfaction of most of the non-material interests requires quite material costs. There is nothing supernatural, therefore, in information about the sale of positions in other political parties, and about paying their factions for voting in legislative assemblies.. However, public organizations are characterized by the joint satisfaction of these needs, which implies the obligatory participation of a member of the organization in its work, while in a consumer cooperative no member activity is required - only the fulfillment of the obligation to transfer property, and the satisfaction of needs occurs accordingly individually - through the targeted distribution of property (and other benefits) by a consumer cooperative between its members. It is impossible not to mention one more difference, which in most cases is considered as decisive. We are talking about "beneficiaries", whose interests are mainly served by the activities of the cooperative and public organization. Cooperatives are focused on a closed, always known team of their members, while a public organization should serve the achievement of generally useful goals. In fact, this general principle is far from consistent and cannot be decisive. Another evidence in favor of the special position of the consumer cooperative, on which the division of legal entities into commercial and non-commercial ones stumbles, is the fact that it is not subject to the Law “On Non-Commercial Organizations” dated January 12, 1996 No. 7-FZ.

Nevertheless, there are such serious differences between the consumer cooperative and non-profit organizations that this cannot but give rise to a reassessment of its place in the legal classification of legal entities. There are also quite real dogmatic grounds for refraining from categorical judgments in favor of classifying consumer cooperatives in general and housing savings cooperatives in particular as non-profit organizations. The latter all over the world, and here in Russia too, differ in the following characteristics, which are so important for commercial corporations: (1) "fixed corporate control" over the main activity and use of property; (2) "stability in the distribution of profits"; (3) transferability of participation rights; (4) members' claims to property. It does not take much effort to make sure consumer cooperatives have most of these features. 20 See: Stepanov D.I. In search of a criterion for distinguishing legal entities into two types and the principle of segregation of non-profit organizations // Bulletin of Civil Law. 2007. V. 7. No. 3. P. 35. Somewhat even redundant. As has already been shown above, the distribution of profits for cooperatives is the first step towards the dissolution of their cooperative nature, and the liquidation quota finally puts an end to it, turning the cooperative into a kind of economic society..

The housing savings cooperative is just one of such consumer cooperatives, arising and operating on the basis of a special law within the framework of the most general provisions of the Civil Code of the Russian Federation on consumer cooperatives.

The emergence of ZhNK in the Russian legal space was immediately assessed as a qualitatively new subject of legal relations. At the same time, one can come across the assertion that “the law on accumulation cooperatives introduces a new type of cooperatives, previously unknown to either Soviet or Russian legislation” 21 Sokol P.V. New law on housing savings cooperatives // Legislation and Economics. 2005. No. 11.. It's impossible to agree with this. The law itself (Article 2) refers ZhNK to the type of consumer cooperatives, and this is already enough to refute such a characterization. It could still be accepted if it were a new type of consumer cooperative. Indeed, among them we will not find a single one that, in terms of the subject and forms of its activity, in terms of organization and sources of financing, public control and accountability, as well as responsibility to its members, was even remotely similar to a housing savings cooperative.

ZhNK are characterized as a new organizational and legal form of consumer cooperatives created to meet the needs of citizens in housing. However, the organizational and legal form “should be understood as a set of property and organizational differences, ways of forming the property base, features of the interaction of owners, entrepreneurs and the workforce, their responsibility to each other and counterparties.” It “determines the nature of the relationship between the founders (participants of a company or partnership), the regime of property liability for the obligations of the enterprise, the minimum amount required when creating an enterprise authorized capital, the degree of protection of the interests of creditors, the procedure for managing the enterprise and the distribution of profits, possible sources of financing its activities. The organizational and legal form “can be defined as a set of elements and features specified in the Law that characterize the form of ownership on the basis of which the enterprise was created, the procedure for forming the property base of an economic entity (including with a minimum size of the authorized capital), the structure of interaction between its founders and participants, the limits of liability of the enterprise itself and its participants for the debts of the enterprise, as well as the procedure and features of management. “Legal entities are created in certain organizational and legal forms, the list of which is established by law. For commercial legal entities, this list is closed (clause 2 of article 50 of the Civil Code), for non-commercial legal entities - open (clause 3 of article 50 of the Civil Code). Thus, the Civil Code of the Russian Federation makes it possible to single out organizational and legal forms of business partnerships and business companies, industrial and consumer cooperatives, non-profit partnerships and autonomous non-profit organizations, other non-profit organizations, unitary enterprises and institutions.

ZhNK ipso lege refers to the organizational and legal form of a consumer cooperative and, at first glance, formally ranks on a par with housing and housing cooperatives. So, to consider it a new organizational and legal form of a consumer cooperative is the same as classifying CJSC and OJSC or LLC and ALC, respectively, as different organizational and legal forms.

But if instead of the words “organizational and legal form” we put the words variety or type, we get a completely fair idea that in this case formally (based on the text of the law) we are dealing with a qualitatively new type of consumer cooperative, still unknown or legal, nor Russian investment practice. This is generally true. If you look at ZhNK as a legal entity, then within the legal form of a consumer cooperative there will be nothing to compare it with 22 Unless, of course, we do not count consumer cooperatives that actually carry out the same activities as housing savings cooperatives, but legally either going beyond the boundaries of the usual target legal capacity established for them by law (ZHK, ZHSK), or "putting on" handicraft a developed shell of a variety of consumer cooperatives unknown to the law (mortgage consumer cooperatives). The benefit of the Civil Code of the Russian Federation has provided at the disposal of everyone a powerful means of triumphing private interest over public interest in the form of the so-called principle of permissive orientation of civil law norms..

The question of the signs of a consumer cooperative as a special organizational and legal form and its differences from a production cooperative has not yet been resolved in legal science. 23 See: Kozlova N.V. Non-profit organizations: charity or entrepreneurship?//Legislation. 1998. No. 1..

The initial prerequisites are the provisions of the Civil Code of the Russian Federation on that a consumer cooperative is (1) a non-profit organization (2) created by citizens and legal entities (3) through their voluntary association on the basis of membership and (4) contribution to a mutual fund 24 N.V. Kozlova, the text contains the words “to the statutory fund”, but this is an obvious reservation, since such a fund is not created at all by cooperatives, and there is no need for it. organization of property share contributions (5) in order to meet the material and other needs of participants (clause 1, article 116).

Two of the listed signs are of the greatest importance for the recognition of a consumer cooperative as an independent organizational and legal form of a non-profit organization. The purpose of creating a consumer cooperative is to satisfy the material and cultural needs of its members, mainly by acquiring property in the ownership of the cooperative and then transferring it to the use and / or ownership of the member of the cooperative. The operation of the property is carried out by the cooperative and the members of the cooperative jointly. A consumer cooperative cannot set itself the goal of making a profit, and therefore, as a rule, is not engaged in entrepreneurial activity as such.

If he has to conduct commercial activities and even distribute the profits received among his members, then this should be done solely in order to achieve the main goal - to satisfy the material and cultural needs of his members (acquisition of property and transfer of it to members of the cooperative, which involves the distribution of all income received between the cooperative and members on the principle of covering the costs of the cooperative and distributing the entire remaining part of the income to increase the share savings of members of the cooperative) 25 The distribution of all income received among the members of the cooperative, as it could be understood based on the literal meaning of paragraph 5 of Art. 116 of the Civil Code of the Russian Federation, should not take place due to the senselessness in such cases of entrepreneurial (commercial) activities, the costs of which will still have to be covered by the members of the cooperative by making additional contributions by virtue of paragraph 3 of Art. 116 of the Civil Code of the Russian Federation..

The consumer cooperative differs from the production cooperative, therefore, in the purpose and subject of activity, as well as in the absence of a sign of the mandatory labor participation of a member of the consumer cooperative in its main activity.

These signs actually turn out to be so fragile and vague that it made it possible to doubt in general the expediency of distinguishing between two types of cooperatives - production and consumer cooperatives.

The objections boil down to the following. First. Personal participation under the current legislation is not always required in production cooperatives (clause 2, article 7 of the Federal Law “On production cooperatives”). Second. Legislation knows cases when personal participation in the economic activities of a consumer cooperative is mandatory. Third. The law allows consumer cooperatives to engage in entrepreneurial activities and distribute the income received among their members, and the principle of distribution is the same as in a production cooperative. Fourth. Common to both cooperatives is the subsidiary liability of their members for the debts of cooperatives (clause 2, article 107, clause 4, article 116 of the Civil Code of the Russian Federation). Fifth. The abundance of laws on certain types of consumer cooperatives, differentiated by areas of economic activity (trade, lending, housing construction, garage construction, summer cottage construction, gardening and horticulture), mutually exclusive, is evidence rather in favor of the absence of a single type of consumer cooperative 26 Just like N.V. The goat conclusion is not made. But why else, in order to prove her thesis that there are no clear criteria in the law for distinguishing consumer cooperatives from production cooperatives, she writes: “Secondly, lawyers are justly bewildered by the abundance of laws devoted legal regulation consumer cooperation; they are created almost in every sphere of economic activity. For example, the status of such a type of consumer cooperative as a consumer society (as well as unions of consumer societies) is determined by the Federal Law of June 19, 1992 (with amendments and additions of June 11, 1997; “On Consumer Cooperation in the Russian Federation”). This law does not apply to housing, housing construction, dacha, garage, credit and similar specialized consumer cooperatives operating in accordance with the legislation on certain types of these cooperatives. In agriculture, consumer cooperatives are created on the basis of the Federal Law of December 8, 1995 "On Agricultural Cooperation". Otherwise, such an abundance of laws could be attributed to the shortcomings of the legislative technique, which reproduces the same general provisions in each of these laws. But since this cannot be noticed, if all these laws describe the status of a new subject each time, then one can doubt the existence of a common organizational and legal form for all of them.. Sixth. Some of these laws in fact directly fix the status of a production cooperative, calling it, more out of habit than in the totality of its essential features, a consumer cooperative.

In particular, we are talking about the Federal Law “On Consumer Cooperatives”. It concerns only consumer societies and their unions. The use of the phrase "consumer society" in the names of other types of consumer cooperatives is not allowed. According to Art. 1 of this Law, a consumer society is a voluntary association of citizens and legal entities created on the basis of membership by combining property shares for trade, procurement, production or other activities in order to meet the material and other needs of its members. The main tasks of the consumer society are: the purchase of products from citizens and legal entities Agriculture and crafts, wild fruits, berries and mushrooms, medicinal raw materials with their subsequent processing and sale; production food products and non-manufacturing goods with subsequent sale through retailers; provision of production and household services to members of societies, etc. Thus, despite the name, in fact, a consumer society is a specific form of not even a consumer, but a production cooperative, the features of the legal status of which are again related to the subject and goals of its activity.

The same can be said about agricultural processing, marketing (trading), servicing, supply, horticultural, horticultural, livestock and other, which the law 27 Article 4 of the Federal Law "On Agricultural Cooperation" of December 8, 1995 No. 193-F3. classified as consumer.

As a result, it is concluded that “Russian legislation on cooperation does not allow clear and unambiguous differentiation between the concepts of “production cooperative”, “consumer cooperative”, “consumer society”, “agricultural cooperative” ... in order to further develop and support this very popular organizational form, equally suitable for both entrepreneurial and non-commercial activities, the current legislation on production and consumer cooperatives should be streamlined, perhaps through the adoption of a single law "On Cooperation", bringing it into line with the Civil Code of the Russian Federation.

With this conclusion, which takes us back to the beginning of the 20th century. 28 The bill on cooperative partnerships worked out by the commission of legislative proposals created by the Moscow cooperative congress in 1908 was based precisely on the idea of ​​the need for a special general cooperative law. and suggesting that we put an end to the distinction between commercial (production) and non-commercial (consumer) cooperatives, it is impossible to agree. Of course, the division of legal entities into commercial and non-commercial has its drawbacks. There are even situations in which this classification turns out to be purely formal, since in reality the differences between commercial person and a non-commercial entity (as in the case of a rural consumer society and a cooperative farm) turns out to be a distinction “on paper”. However, this classification in this case also carries a very real legal burden. As E.A. Sukhanov, "the need to separate commercial and non-commercial organizations in the domestic legal order is dictated by the need to exclude often, unfortunately, situations in which, for example, government bodies would have the right to establish commercial banks or issue bonds "on their own behalf"".

The status of a non-commercial legal entity finds its justification, therefore, not so much in the private law as in the public law sphere, excluding for certain legal entities, based on public interests, certain forms of activity in the economic turnover and instead creating benefits for them in relations with state 29 Preferences in the public, especially tax, sphere and minimization of management requirements are the most striking distinctive features NPOs compared to commercial legal entities.. Otherwise, this classification loses its meaning. If you are exclusively engaged in charitable activities and at the same time bear the same tax burden as a wholesaler, then this is only contrary to the principle of justice and undermines the foundations of charitable activity. But in civil circulation there should be no difference between the transactions of a charitable foundation that purchases office equipment for its own needs, and a small wholesaler that purchases this equipment for the purpose of subsequent sale. Civil law gives them, in principle, the same legal regime. The ongoing attempts of the legislator to preserve for such persons increased public-law guarantees in civil circulation (limitation of the grounds and amount of liability, inadmissibility of bankruptcy, and others) generally have a destructive effect on this circulation.

The founders can take advantage of the benefits of a non-commercial legal entity provided by the current legislation, even when the activity of this entity is actually difficult to distinguish from the activity of entrepreneurship. It is important to remember at the same time that in return for the benefits provided to such a fake, the law restricts his freedom of entrepreneurial activity. 30 According to the defended D.I. Stepanov, when the center of gravity of NCO activities shifts towards business (whether in the economic or other sphere), at a certain stage, it objectively becomes necessary to transform into a commercial legal entity, since, on the one hand, with the growth of business profitability in the field of tax breaks, taxation is also equalized commercial and non-profit organizations, and on the other hand, the mechanisms for using profits and investing in NPOs turn out to be ineffective from the point of view of medium and large businesses.. The consumer society, as you know, was created as an organization designed to meet the needs of an ordinary (both rural and urban) resident in industrial goods. That was its historical purpose. And the state provided him with the regime of a consumer cooperative (today - the status of a non-profit organization), bearing in mind just the social significance of this activity, and not at all the impossibility of conducting it in the mode of entrepreneurship. No one restricts the rights of rural residents to create trading companies with limited liability in the countryside or to engage in this activity as individual entrepreneurs. Whether people will take advantage of the opportunity that opens up for them to engage in economic activity in the regime of a non-profit organization or not is another matter. But since such a possibility exists in principle, it is absurd to deny on this basis the classification of legal entities into commercial and non-commercial. Rather, we can talk about the inconsistency of the legislator or about "legislative arbitrariness", legislative errors. Moreover, in the vast majority of cases, such a problem does not arise at all, since most non-profit legal entities are created to perform tasks that are not directly related to making a profit (public administration, public order, justice, education, healthcare, etc.) . And the understanding of this circumstance does not interfere even with the fact that the market is ready at any moment to “correct this mistake” and turn the subject of any activity into a “supplier of another product”.

The list of signs that distinguish a cooperative from other legal entities, both commercial and non-commercial, rightly include the sign of the presence of a specific form of equity participation in the property of the cooperative - a share and, accordingly, the presence of a share fund in the composition of the property of the cooperative. The absence of a share fund from a homeowners association and, accordingly, a share from members of an HOA prevents it from being recognized as a type of consumer cooperative 31 See: Civil law / Otv. ed. E.A. Sukhanov. P. 258. Against this background, the instruction of Professor E.A. Sukhanov that for HOA the law does not provide for the possibility of transformation into other organizational and legal forms, in this respect it is formal and not of particular importance. Bankruptcy is another matter. The possibility of insolvency is an unconditional sign of the risky nature of cooperative activities undertaken on the basis of mutual assistance, but at your own peril and risk. Nevertheless, bankruptcy does not form a decisive feature, since nothing prevents the legislator from removing one or another consumer cooperative from the zone of bankruptcy legislation for exactly the same reasons for which he is able to allow the implementation of entrepreneurial activities by a non-profit organization. Another point of view: “At its core, such a partnership can be considered as a consumer cooperative, however, paragraph 2 of Art. 291 of the Civil Code of the Russian Federation considers it to be an independent type of non-profit organization operating on the basis of a special law (which fully complies with the requirements of paragraph 3 of article 50 of the Civil Code of the Russian Federation) ”(Realtor’s Handbook / Compiled by I.A. Dubrovskaya, O.I. Sosnauskene. M. : Yustitsinform, 2006)., although in principle one can find many other arguments in favor of recognizing it as a legal form of cooperation (unification of forces and means for the joint exploitation of property on the basis of mutual assistance).

There is another difference between consumer and production cooperatives, which can be regarded as significant. If in a production cooperative participation in management is based on the equal obligation of personal participation in its entrepreneurial activity and equal risk and is expressed in equal share contributions and equal voting rights at the general meeting, then a different approach is also characteristic of consumer cooperatives: participation by property, and not by personal activity, the different size of share contributions and, accordingly, different risks predetermine proportional participation in the management of the affairs of the consumer cooperative. In this regard, of course, there is as much in common between the consumer society and the production cooperative as it is between the housing cooperative and the HOA.

Thus, in our opinion, there is no reason to refuse to divide cooperatives into production (commercial) and consumer (non-commercial) cooperatives. In Russia, these are two different organizational and legal forms of cooperation. This would be possible only if the conceptual approach to the division of all legal entities into commercial and non-commercial ones is abandoned, i.e. subject to a radical revision of the provisions of the Civil Code of the Russian Federation on legal entities. Since the probability of this is negligible, one has to put up with the costs of classification, understanding its conventionality in application to cooperatives. Rather, it is possible to recognize a consumer cooperative as a commercial legal entity, if we assume that the purpose of making profit for commercial legal entities is not as significant as the right to distribute it.

The main question for the sake of which such a lengthy digression was made is whether we can consider ZHNK as a kind of consumer cooperative, and if we can, then whether it should be attributed to a modification of one of the known types of consumer cooperatives, or whether it should be considered a new independent variety consumer cooperative.

After all that has been said above, the answer seems almost obvious. ZHNK is a corporation based on the personal participation of a variable number of persons who are obliged to make property contributions in exchange for acquiring the right to participate. The main task of this corporation is to meet the needs of the economy of its members in housing, and, consequently, to conclude exclusive transactions with them and in their interests for the acquisition of residential premises and their provision for use, and then for ownership (Articles 1, 2 of the Law). Members of the WNC enjoy an equal right to participate in the management of the affairs of the cooperative, regardless of the size of their share contribution, on the principle of one member - one vote (clause 3, article 34 of the Law). All this is direct evidence of the cooperative nature of the WNK.

And what is unusual about it? Some deviation is the size of the share (share contribution, as the law does not quite correctly call it). It is not the same for different members of the ZhNK, since its size is determined by the living quarters that a member of the ZhNK wants to acquire ownership (Article 24 of the Law). But this, already known to us from housing construction cooperatives, can also be considered as a peculiar form of manifestation of cooperative equality, allowing in other cases the possibility of owning several shares while maintaining the general principle of equality of votes on fundamental issues of cooperative activity. If we take the share contribution per unit of living space as the size of the share, then questions should not seem to arise. From this point of view, ZhNKs, like ZhSKs, can actually be considered as cooperatives that allow for plurality (inequality) of shares with equal votes.

The Russian Housing Savings Cooperative is an organizational and legal form of a single function - the management of special savings deposits of its members, without providing them, apart from intermediary services in obtaining housing, any additional preferences from their economic activities. The content of its activities is: 1) the accumulation of share contributions of members of the ZhNK on special accounts; 2) spending the accumulated funds for the purchase of residential premises for members of the ZhNK on the accumulated funds; 3) attraction of borrowed funds in case of insufficiency of share contributions for the acquisition of residential premises for members of the cooperative. In addition, ZhNK is allowed to: 4) invest its funds in the construction of residential premises (including in apartment buildings), as well as participate in the construction of residential premises as a developer or participant in shared construction; 5) acquire residential premises. The fourth and fifth points are, first of all, forms of realization of the main authority of the ZhNK to spend the accumulated share contributions.

However, the question arises: can these two powers also be exercised outside of the specific order of a member of the ZhNK? For example, under the future order? The answer to this question seems to be rather negative. Firstly, the law allows ZhNK only one type of activity - activities to meet the needs of its members in living space and some types of auxiliary activities in relation to it. Secondly, the expenditure of share contributions is allowed only for the purpose of acquiring residential premises for members of the cooperative. Thirdly, the law obliges the income from entrepreneurial activities of the ZhNK to be directed to the reserve fund, the funds of which, upon reaching the amount established by the charter, are subject to distribution among the members of the cooperative (clause 4, article 16 of the Law). Fourthly, borrowed funds can be attracted by ZhNK only for the purposes of the main activity (part 3 of article 47 of the Law). There remains only the assumption of a weak possibility of an exceptional situation of temporary investment of the reserve fund in residential premises.

A housing savings cooperative is defined by the Law (clause 1, article 2) as a consumer cooperative established as a voluntary association of citizens on the basis of membership in order to meet the needs of members of the housing cooperative in residential premises by combining share contributions by the members of the housing cooperative.

This definition clearly suffers from redundancy, since any consumer cooperative already represents itself as a voluntary association ... on the basis of membership ... by combining share contributions by members of the ZhNK (Article 116 of the Civil Code of the Russian Federation). A better solution could be the following definition: "a housing savings cooperative is a consumer cooperative created as a voluntary association of citizens in order to meet the needs of members of the housing cooperative in residential premises."

The law fixes the exclusive right to use the phrase "housing savings cooperative" in the name. At first glance, the presence in Part 2 of Art. 2 of the Law, which establishes the right to the exclusive use of the phrase housing savings cooperative and prohibits all legal entities that do not fall under the status of a housing savings cooperative from using it in their names. Indeed, for all legal entities of a non-cooperative organizational and legal form, such a ban is meaningless, since even the words “cooperative” and “cooperative” cannot be used by them without the risk of jeopardizing, if not the validity of their state registration, then at least their own reputation. 32 True, the formal use in the constituent documents, as well as documents submitted for the purpose of state registration of a legal entity, names prohibited from use for a registered legal entity, is not a reason to refuse its registration (Article 23 of the Federal Law of August 8, 2001 No. 129-FZ)..

However, this technique reveals a deep meaning, as soon as we try to establish where else the legislator considered it appropriate to use it to prevent misleading facts. 33 We do not mean general prohibitions on the use of certain names in the name (company name) of a legal entity (see, for example, Article 1473 of the Civil Code of the Russian Federation), but only those that definitely indicate the nature of the activity of a legal entity. For non-commercial legal entities, the indication of such information in the name is always mandatory, and for commercial legal entities - in cases provided for by law (Article 54 of the Civil Code of the Russian Federation).. Such cases include the use of the words "bank", "credit institution", "stock exchange", "investment fund", "chamber of commerce". A general ban in such cases pursues purely public goals - preventing the state and private individuals (mainly consumers) from being misled about the content and objectives of the legal entity. The inclusion of the name “housing savings cooperative” in the category of such restrictions gives one more reason to regard its status as a legal entity of public law.

Given the changes made to the legal status of a company name in connection with the adoption of part 4 of the Civil Code of the Russian Federation, this prohibition should also be extended to commercial designations of legal entities.

How can you characterize the legal status of ZhNK in a number of consumer cooperatives?

As already mentioned, housing cooperatives in a number of ways remain similar to housing cooperatives to such an extent that this may give the impression of the possibility of applying the same legal regime to them. Meanwhile, the only thing that seems possible is the provision of housing for use by a member of the ZhNK and ensuring the housing rights and obligations of the members of the ZhKK and ZHNK until the share contribution is paid in full.

ZhSK is a cooperative created for the construction and operation of a residential building, and ZhNK - for the acquisition of living space according to the statements of ZhNK members. ZhNK is primarily an intermediary whose role is reduced to 1) providing financial services (saving the housing savings of its members and providing them with a loan at the expense of savings accumulated in its mutual fund and third-party loans) and 2) making transactions for the acquisition of living space on behalf of a ZhNK member, in his interests, but on his own behalf and at his own expense. For housing cooperatives, the right of ownership of a dwelling is a natural consequence of acquiring the right of ownership of the residential building in which they are located. The loss of this right by him is a feature of Russian housing cooperatives and Russian real estate legislation, which allow the acquisition of ownership of a dwelling separately from the ownership of the building in which it is located, and regardless of the owner's right to this building. For ZhNK, the right of ownership even to a dwelling is a temporary necessity, a means of ensuring the fulfillment of a financial obligation by a member of ZhNK.

There are no questions at all about the management of a residential building for ZhNK 34 A complete misunderstanding of the meaning of the law, in our opinion, distinguishes the assertions that ZhNKs are allegedly created for the purchase of residential buildings and their subsequent operation. So, E.S. Kryukova writes that "such cooperatives do not perform the functions of managing the common property of apartment buildings and its operation until the full payment of share contributions by their members." But the fact is that even after the full payment of the share contributions, they cannot do this, since the Law does not remove their main duties from them, and the members of the ZhNK who have paid the share contributions in full generally leave the cooperative (see: Kryukova E.S. Termination of the ownership right of housing cooperatives to residential premises // Legislation, 2007, No. 9). On the contrary, they are right, he claims that “unlike housing and housing-construction cooperatives, a housing-savings cooperative does not pursue the goal of managing residential and non-residential premises in a cooperative house (Article 110 of the Housing Code of the Russian Federation). The achievement of this goal is called upon to serve the partnership of homeowners formed in it, into which a housing savings cooperative can be transformed (clause 2 of article 13 of the Law) ”(Sokol P. Protection of the rights of investors when investing in construction.), and expenses similar to those incurred by members of the housing cooperative for the maintenance of places common use, engineering infrastructure and local area, ZhNK simply does not exist. Until the moment of transfer of the acquired residential premises for use by its member, the ZhNK bears these expenses as the owner of the residential premises (including, possibly, as a member of the housing cooperative), but at the expense of the share fund, i.e. future user of the dwelling. After the transfer of the residential premises for use, the ZhNK generally ceases any participation in such expenses, which from that moment are fully assigned to the member of the ZhNK. But for the latter, these are obligations that do not arise from his membership, although they are conditioned by him, since these are obligations not to the ZhNK, but housing obligations to third parties.

Finally, membership in the housing cooperative is a relatively stable relationship, which is designed for a long service life of the building. The only thing that undermines it is the loss of the cooperative nature of the housing cooperative after the transfer of all living quarters of a residential building to the ownership of members of the cooperative. But this does not formally terminate membership in the housing cooperative. On the contrary, membership in the ZhNK is always a temporary, even urgent means of acquiring ownership of a dwelling on credit. But the termination of membership here does not affect the cooperative status of WNK in any way. If ordinary cooperatives are distinguished by a relatively variable composition of participants, caused by the unrestricted right to freely withdraw from the cooperative, then the ZNC is characterized by the principle of absolute variability of composition, which cannot be countered even by a general cooperative guarantee for maintaining membership in a cooperative. ZhNK in terms of membership resembles a queue for housing and, accordingly, a queue for a loan to purchase it.

Thus, the essence of a housing savings cooperative is closest to a savings and loan, credit, rather than a housing cooperative. 35 “The cooperative is a mutual aid fund. Its fund is formed at the expense of contributions (shares) of members of the cooperative. The guarantee is the contracts concluded with the participants of the cooperative that they pay monthly fees. When all members pay the full cost of their apartments, the money will run out, but this means that all members of the cooperative have either received apartments or returned their money.” And one more thing: “The basis of the activity of the ZhNK is the principle of mutual financial support, or, in other words, the principle of the mutual benefit fund.” “Modern Russian legislation provides for the creation of credit cooperatives in various organizational and legal forms, the most common of which are: ... a housing savings cooperative (HSC) (has the right to accept personal savings, savings of shareholders for the purpose of joint investment in housing construction, purchase of housing) ”(Schepotiev A.V. Credit and savings cooperatives // Entrepreneur without forming a legal entity. 2006. No. 1; see the same: Tax accounting for an accountant. 2005. No. 12).. The fact is that in housing cooperation, the cooperative nature is manifested either in the rights to life-long use of an apartment on terms more favorable than rent, or in the provision of additional benefits and benefits associated with use: organization of leisure and recreation, family celebrations, etc. In this regard, even the current housing and housing-construction cooperatives are no longer cooperatives in the full sense of the word, since they are mainly a form of acquiring residential space in property with installment payment. But they exist at least for a while as cooperatives that unite members common interest, and then can become a cooperative house management organization. What about a housing savings cooperative? What kind of benefits and advantages does it provide to cooperators, in addition to payment by installments? Does not charge interest for the use of a mutual loan? But in return, the members pay him all the expenses associated with the activities of the ZHNK, including the maintenance and repayment of attracted loans and loans for the purchase or construction of residential premises (clause 4, part 2, article 24 of the Law) and the costs associated with the implementation by the cooperative of the provisions of its charter activities (Article 2 of the Law).

There is one more difference, which is not significant from a legal point of view, but from an economic point of view, it is almost decisive. It is it that expands the possibilities of using the cooperative form of meeting the needs of the population in living space. Housing cooperatives are used where the demand for residential premises is already solvent enough to start housing construction. ZhNK, on ​​the contrary, makes no difference between fully solvent and pent-up demand. Furthermore. ZhNK is focused on citizens who need a period of initial accumulation of funds (part 1 of article 28 of the Law) 36 “When joining a ZhNK, unlike a housing cooperative, a shareholder does not have a “binding” to a specific property. If a housing cooperative is created for the construction of a specific house, then the housing cooperative is obliged to provide its shareholders with housing as such, according to the market value of the property and the size of the contributed share..

Thus, there are three main types of use of housing savings of citizens. The first is mortgage lending and shared or individual construction. The second is participation in the housing cooperative, which carries out construction at the expense of shareholders and a mortgage loan. The third one is participation in ZhNK in order to accumulate funds for the purchase of residential premises using a mutual loan 37 Apparently, this circumstance is not fully understood by those who write that “those who are not confused by additional expenses, and who need to purchase housing as soon as possible, it is advisable to apply to a bank for a mortgage loan. If there is not enough money, but there is time to solve the housing problem, you should contact housing cooperative". Today we can already speak about the presence of schemes for accelerated and delayed acquisition of residential premises in the composition of cooperatives. For housing cooperatives, the issue of accumulating funds necessary to start construction should, in principle, be resolved by the time the housing cooperative is created. Otherwise, it makes no sense to create it, since it is a cooperative for the construction and operation of a residential building built at the expense of shareholders..

The general features of any legal entity are:

1. the presence of signs of the organization (participants, management bodies, internal divisions, the procedure for entry, the formation of bodies and divisions, competence, relationships);
2. availability of separate property (from the property of participants and any third parties);
3. individualization in circulation and in public relations - “own name”;
4. independent property liability.

According to the text of the law, ZhNK has all these signs. The law establishes the status of a member of the ZhNK and the conditions for its acquisition and loss (Articles 5-10), the structure of the ZhNK (Articles 33-46), recognizes him as the owner of separate property (Article 3), provides the right to use a special addition in his own (company ) name (Article 3) and provides for independent liability for obligations (Article 4).

After that, it remains only to check whether empty declarations are hidden behind the provisions of the law, and to clarify the features of the embodiment of these signs in the personality of the ZhNK.

The fact is that in modern legal literature the question of what exactly predetermines the status of a legal entity is solved differently.

The simplest answer is to leave all doubt and trust the law. Any organization named as such in the law (legal acts) should be considered a legal entity 38 See: Mitskevich A.V. Subjects of Soviet law. M: Legal Literature, 1962. S. 134..

Professor S.N. Bratus once argued that “the recognition of any public entity as a legal entity does not depend on whether it is officially called a legal entity, but on whether it has those properties that, in their totality, make it an independent participant in civil legal relations, those. legal entity" 39 Bratus S.N. Legal entities in Soviet civil law (Concept, types, state legal entities) // All-Union Institute of Legal Sciences. Uchen. works. Issue. 12. M.: Yurizdat, 1947. S. 143. From this followed a slightly less obvious than the first position, suggesting that the question posed was rhetorical. If an organization has all the signs of a legal entity provided for in the Civil Code of the Russian Federation, then it is a legal entity 40 See: Pushkin A.A. Subjects of civil law: (Text of lectures). Kharkov, 1974. S. 10; “... h. 1 st. 11 of the Fundamentals connects the recognition of an organization as a legal entity with material moments (the presence of the signs indicated in the article), and not formal ones (the presence of an appropriate entry about the legal personality of the organization in its charter or regulation) ”(Braginsky M.I. Participation of the Soviet state in civil legal relations. M , 1981. S. 27, 34).. But the view that the properties of a legal entity are predetermined not by nominal, but by the real qualities of the organization has become more widespread. 41 “... The signs of a legal entity, enshrined in Art. 48 of the Civil Code, are currently only necessary for understanding the category of “legal entity” (understanding this legal phenomenon), and not for determining whether this or that organization, based on the presence of signs of a legal entity, is a legal entity ”(Kovalev M.V. On the issue of the concept of entrepreneurial activity // Proceedings of the All-Russian scientific and practical conference "Public and private law: the problem of interaction, legislative expression and legal practice" April 23-24, 1998. Ekaterinburg, 1999. P. 143)..

Based on this, it is proposed to associate the status of a legal entity in some cases with independent participation in civil circulation, in others - with compliance with the established procedure for creating a legal entity, in others - with an act of state registration.

As a result of applying any of these approaches, ZHNK turns out to be a corporation for us, the legal identity of which is not in doubt.

The most characteristic feature of the legal personality of the ZhNK is its exclusive legal capacity predetermined, as already shown above, by the nature of the activities carried out.

The exclusive legal personality of the ZhNK is expressed primarily in establishing as its main economic activity the attraction and use of funds of citizens - its members for the purchase or construction of residential premises on the territory of the Russian Federation in order to transfer them for use and after making share contributions in full to the property of their members (Part 1, Article 1 of the Law). This activity includes the following main operations:

1. attraction and use of citizens' funds for the purchase of residential premises;
2. investment (investment) of the funds available to him in the construction of residential premises (including in apartment buildings), as well as participation in the construction of residential premises as a developer or participant in shared construction;
3. acquisition of residential premises;
4. attraction of borrowed funds.

The positively expressed aspect of an exceptional nature is confirmed by a special prohibition of the ZhNK to carry out any other activity (part 1 of article 3 of the Law) and a general ban on all other persons to carry out such activities except in cases expressly provided for by law (part 3 of article 1 of the Law) .

As a result, a status monopoly is established for engaging in activities that combine savings and loans, agency (real estate) and investment functions in one person.

To protect against the negative consequences of this monopoly, external and internal restrictions are provided.

External restrictions are expressed in prohibitions and restrictions on the commission of external acts - transactions with third parties that violate the exclusive legal personality of the ZhNK.

In accordance with Part 2 of Art. 48 of the Law, a cooperative is prohibited from:

1. issue loans to individuals or legal entities;
2. donate living quarters;
3. transfer residential premises for free use;
4. act as a guarantor of its members and third parties, as well as in any other way ensure the fulfillment of obligations by these persons;
5. contribute their property as a contribution to the authorized (reserve) capital of business partnerships and companies, share fund of production cooperatives and otherwise participate with their property in the formation of property of legal entities, with the exception of participation in the formation of property of self-regulatory organizations of housing savings cooperatives.

Transactions that are not related to the main activity, but do not contradict it, ZHNK makes in compliance with the procedure or conditions established by law.

So, a cooperative, without a preliminary decision of the general meeting of members of the cooperative, is not entitled to make transactions for the alienation of residential premises owned by the cooperative, including the exchange of residential premises transferred for use by members of the cooperative, other transactions that entail a decrease in the property of the cooperative, as well as transactions for the delivery of residential premises for rent or for rent or as a pledge (mortgage) (part 1 of article 48 of the Law).

When raising borrowed funds in the case provided for in Part 3 of Art. 47 of the Law, the loan agreement (loan agreement) must be approved before it is made by the board of the cooperative. A loan agreement (loan agreement) may be approved by the board of the cooperative if the amount of the loan (credit) does not exceed the amount of funds that the cooperative has the right to attract for the purchase or construction of residential premises in accordance with Art. 47 of the Law (part 5 of article 48 of the Law).

The cooperative cannot assume obligations, including with a delay or installment plan for their execution, on the assignment of rights of claims, fully or partially forgive a debt, take other actions that may lead to losses to the cooperative or deterioration in the financial stability of its activities (part 4 article 48 of the Law).

The law also prohibits transactions with the interest of members of the ZhNK. According to part 6 of Art. 3 of the Law, a cooperative cannot be in contractual relations with members of the cooperative, as a result of which civil rights and obligations are established, changed or terminated, associated with the implementation of the cooperative's activities to attract and use citizens' funds for the purchase of residential premises.

Internal restrictions are requirements for property and sources of financing of ZHNK, referred to in the law as requirements for ensuring the financial sustainability of the cooperative's activities. These requirements set:

1. the minimum amount of the part of the share contribution, after the payment of which, in accordance with the charter, a member of the ZhNK acquires the right to purchase (construct) a dwelling;
2. the maximum amount of a mutual loan (the total amount of share savings of other members of the ZhNK, directed from a mutual fund for the purchase (construction) of housing;
3. the maximum amount of external borrowings to finance the acquisition (construction) of residential premises for a member of the ZhNK and in general for all operations of the ZhNK
4. the maximum amount of the cost of acquiring rights to residential premises being built in the manner of equity participation and the cost of residential premises being built by the cooperative;
5. the minimum period for making a part of the share contribution, after which a member of the ZhNK acquires the right to purchase or build a dwelling;
6. the maximum term for the full payment of the share contribution.

In addition to the main activity, the ZhNK has the right to perform certain types of auxiliary operations that ensure the main activity. The cooperative has the right to provide its members with legal, consulting and other assistance, as well as other services corresponding to the goals of the cooperative and not contradicting the legislation of the Russian Federation.

The law allows ZhNK to engage in entrepreneurial activities. IN general view such a permit seems redundant, since investment activities (investment in the acquisition and construction of residential premises) 42 Investment, in our opinion, is only the activity of ZhNK, but not the activity of its members. Not right therefore P.V. Sokol, who claims that “investing in any of the cooperatives (housing, housing construction or housing savings) has all the signs of investment activity in the form of capital investments” (Sokol P. Protecting the rights of investors when investing in construction). Cooperative members are not investors and are not subject to investment laws. The investor is a cooperative that risks its own funds, since the unit fund is its property, and the members bear the risk of losses within the limits of their share savings. is already an entrepreneurial activity, since it contains almost all the signs of such, with the exception of the goal of making a profit, which, in our opinion, cannot be of decisive importance in general, and especially for cooperatives, since these are not capitalist enterprises. However, one way or another, the permission of the law should be understood as a sanction to engage in other business activities specifically for the purpose of making a profit. 43 Such a special permission, as it is already clear, is a consequence of the special approach of the Russian legislator and legal theory to the understanding of entrepreneurial activity. Its essential feature is considered to be the declared purpose of making a profit, tied by law either to a certain organizational and legal form (commercial legal entity), or to a certain fact (state registration of constituent documents giving the right to engage in entrepreneurial activity, registration as individual entrepreneur, or to a certain type of activity (activities of arbitration managers, banking, insurance, etc.).. Income received by the cooperative from entrepreneurial activity must be directed to the reserve fund of the cooperative and, when the specified fund reaches the amount established by the charter of the cooperative, distributed among the members of the cooperative in proportion to their shares by transferring the appropriate amounts to the account of share contributions.

What exactly this side business activity should be, the law does not specify. It can be assumed that this could be the activity of a house management company, since ZhNK formally does not prevent anything at a certain stage from acting like a housing cooperative, acting as a customer (developer) or a shareholder in a contract for the capital construction of an apartment building. After the full payment of share contributions, the ZhNK could take over the functions of a house management company in relation to the building occupied by its former members. However, this is opposed by insurmountable obstacles, firstly, in the form of a ban on engaging in any other activity, except for what is indicated as the main activity of the ZhNK (Part 1, Article 3 of the Law). But the main thing is that the ZhNK will be forced to accrue income from such activities on the shares of its new members. There will simply be no point in such activities 44 Except for the usual Russian practice of directing the income received to pay remuneration to the responsible employees of the cooperative, which demonstrates, among other things, what the sign of the goal of making a profit is really worth as a formally legal criterion, since in reality the profit turns out to be an invisible to the naked eye component of income, correlated with expenses not even for each fact of income, but for a certain period of activity. It is not surprising, therefore, that works appear in the legal literature that replace the concepts of profit and income: “Obviously ... obtaining income is not the primary goal of the members of the cooperative, however, the possibility of obtaining income, which is allowed by the current legislation, may change social function such a cooperative. As a result, the cooperative may de facto become an organization whose purpose is to make a profit from doing business. We believe that the main goal of the cooperative's activity should not be profit making, but the satisfaction of the material and other needs of the members of the cooperative. The above quotation also shows the desire to explain the non-entrepreneurial nature of the activities of the consumer cooperative with the help of a simple logical device - dividing the goal of recovering profit into a primary goal (supposedly characteristic of entrepreneurs) and a non-primary one (typical of non-profit structures engaged in economic activities). As a result, there is a substitution of concepts: instead of the goal of making a profit, we face the primary goal of making a profit., and for new members of the cooperative, such activities are in no way connected with their participation in the activities of the cooperative. Meanwhile, all over the world, the distribution of cooperative profits among the shares of members is associated with their personal contribution to the activities of the cooperative to obtain such income. Hence, the norm establishing the distribution of the profits of the ZhNK among the shares of its members is not a cooperative, but a general corporate norm, characteristic of mutual economic societies.

In practice, one can clearly see the desire of cooperatives, while maintaining the advantages of WNCs, to expand business opportunities beyond the established restrictions. So, for example, ZhNK "First Obninsky" additionally laid down in its charter:

1. activities of real estate agencies;
2. real estate management;
3. preparation for the sale of own residential real estate;
4. provision of intermediary services in the purchase, sale and lease of residential real estate;
5. provision of intermediary services in the evaluation of residential real estate;
6. housing management (in addition to real estate management);
7. activities in the field of legal services;
8. advising on business and management issues;
9. provision of insurance services;
10. construction of buildings and structures;
11. mounting engineering equipment buildings and structures;
12. production of finishing works;
13. provision for members of the cooperative of legal, financial and other guarantees in the field of protection of their rights and legitimate interests in connection with membership in the cooperative.

It does not take much effort to prove that for such a universal investment and construction company with the functions of a realtor, insurer, guarantor, legal consultant and house management company, the main functions will not be the exclusive goal, but one of the goals of the activity, maybe not even the main one. 45 It must be said that practitioners, and, most likely, not quite disinterestedly, welcome these trends and even try to draw up a legal justification for them: “Based on practice, at present, cooperatives in the field of housing relations are created not only as citizens in housing, but also for other (commercial) purposes. From a legal point of view, such cooperatives do not violate the law ”(Lebedeva O. Participation of legal entities in a cooperative in the field of housing relations // Russian Justice. 2007. No. 1). One can only regret that such persons are not ashamed of their law degrees. It seems that so far none of the law schools in Russia teaches to justify the practice of breaking the law..

Like any legal entity, a cooperative, in accordance with the established procedure, has the right to open accounts in banks located on the territory of the Russian Federation (clause 6, article 3 of the Law), including a separate bank account for the main operations of the ZhNK (clause 5, article 16 of the Law) .

The individualization of a housing savings cooperative in civil circulation is carried out by means of its name, which must contain a mandatory indication that it is a housing savings cooperative, i.e. on its organizational and legal form (clause 2, article 3 of the Law).

The cooperative must have a round seal containing its full name in Russian and an indication of the location of the cooperative. The seal of the cooperative may also contain its company name in any language of the peoples of the Russian Federation and (or) a foreign language. The cooperative has the right to have stamps and forms with its name, its own emblem and other means of individualization (part 8 of article 3 of the Law).

The cooperative is liable for its obligations with all its property. The cooperative is not liable for the obligations of its members. Accordingly, members of the ZhNK, unlike members of production cooperatives, do not bear subsidiary liability for the obligations of the cooperative, but only the risk of losses associated with the activities of the cooperative, within the limits of their share savings. In this respect, they are no different from participants in a limited liability company (Articles 4, 6 of the Law).

Someone cannot collect the necessary package of documents, someone does not have enough money for the down payment. Nevertheless, people still create families, give birth to children and want to improve their living conditions, because, you see, having your own, separate apartment in many ways - the key to a long and happy family life, when the hardships of everyday life do not overshadow the joy of relationships.

What to do in a situation when it is not possible to take a mortgage? Real estate market experts today are advised to pay attention to other, alternative opportunities. One of these alternatives is to join a housing savings cooperative - ZHNK. Many people remember that in Soviet times, those who could not wait to receive housing from the state purchased cooperative apartments. Housewarming in this case happened quickly, and the housing itself, as a rule, was more comfortable and of high quality. Today ZhNK is experiencing the second peak of its popularity - more and more people are joining them, aimed at acquiring new housing with comfortable conditions his purchases and payments. Kazan in this sense does not lag behind the all-Russian trends - the residents of our city have the opportunity to join the ZhNK in order to purchase a new apartment.

One of the reputable cooperatives in the Volga region market is ZhNK "Housing Opportunities", which provides shareholders with the opportunity to purchase apartments in modern new buildings of the Unistroy company. By the way, "Unistroy" today, when the headlines of newspapers are full of information about the deceived equity holders, is one of the few construction holdings that consistently fulfills all its obligations. For more than 20 years on the market, the company has secured an impeccable reputation as a reliable developer; new houses in modern residential complexes are rented out regularly. Currently, an apartment within the framework of the ZhNK can be purchased in any of the residential complexes of the Unistroy company, while avoiding many of the negative aspects associated with obtaining a mortgage loan. In March 2018, the Unistroy company plans to start selling apartments in a new residential complex in the very center of the city of Ufa.

Shafigullin Rustam Sharifullovich told us about what a housing savings cooperative is and what its advantages are.

How does a housing savings cooperative work? What do you need to become a member?

- The essence of the work of the ZhNK is quite simple: a person who wants to become a shareholder writes an application for joining the cooperative, pays an entrance fee of 10 thousand rubles and 1 thousand rubles of the monthly membership fee for the first month of participation in the cooperative. Further, the shareholder replenishes the share fund of the cooperative with regular contributions. Having accumulated 50% of the cost of the desired apartment, for which you can use the funds maternity capital, the shareholder books it, and if the house is put into operation, he can move to his new home - the cooperative pays the remaining amount for it, according to the principle of the Soviet “mutual assistance funds”. With a one-time payment of 50% of the cost of the desired apartment, the Cooperative immediately reserves it for its shareholder and removes it from sale. Then the shareholder is determined the minimum size of the apartment area subject to monthly redemption, by making share contributions during the remaining period of his participation in the cooperative, which is limited to 8 years. As soon as the installment plan - by the way, interest-free! - will be closed, the shareholder will become the full owner of the apartment, and before that he can live in it for his own pleasure, make repairs or rent it out.

- What are the benefits for those who purchase an apartment on the ZhNK?

- If we compare participation in housing and mortgages, then ZhNK "Housing Opportunities" has a number of significant and profitable advantages. Firstly, thanks to interest-free installments, you will not have to overpay unimaginable amounts, like a bank with a mortgage. Secondly, the key rate of banks does not affect the ZHNK, and real estate prices grow much more slowly and are not so subject to fluctuations in the financial market. Thirdly, it is much easier to join a ZHNK than to get a mortgage: there is no down payment for an apartment required, no need to confirm your income and credit history, there is no compulsory life and property insurance, which costs a pretty penny for bank borrowers, and you can become a member of a cooperative from the age of 16 and with just one document!

- What guarantees do ZhNK participants have?

- The activities of the ZhNK are controlled and regulated by a special Federal Law No. 215-FZ of December 30, 2004, Rosreestr and the Central Bank no less strictly than the activities of banks. But, as you know, it is very difficult to negotiate with banks in case of force majeure. Here, all issues are resolved promptly, individually and openly.

According to the law, there can be no more than 5 thousand members in the ZhNK, and any shareholder can at any time get access to the charter and reporting documents of the cooperative. And the cooperative cannot “burst” if at least one of the members is against its liquidation.