Strengthening state control over developers and the entry into force of amendments to 214-FZ from July 1 will inevitably change the work of development companies with a small portfolio of objects. According to experts, not everyone will be able to comply with the tightened legislation and, as a result, they will either have to learn how to work in a new way, or leave the market. Options, in fact, the developers will have few. It will be possible to erect residential buildings and sell apartments in them under preliminary purchase / sale agreements (PDKP) and under the schemes of the housing cooperative (housing and construction cooperative) and ZhNK (housing savings cooperative). For the legislation still allows to attract funds through them in construction. About what opportunities opens up for buyers of new buildings the entry into housing cooperatives, and what risks they will have to take into account, the site found out from experts.
well forgotten old
Until recently, it seemed that ZhNK and ZhSK remained in the distant past, in any case, after 2015, in the capital and the region, there were practically no such schemes for the implementation of new buildings. It was then that the state subsidized the mortgage rate up to 12%, and the developers of the Moscow region massively switched to sales under equity participation agreements (DDU). It seemed that the age of housing cooperatives had come to its logical end, and only scandals with deceived equity holders reminded of the existence of housing cooperatives: criminal cases in Orenburg (ZhNK "Cossack Forpost", embezzlement of 35 million rubles), Barnaul (ZhNK "Nash Dom", 26 million rubles), history in Primorye (ZHNK Primorsky and ZHSK Solnechnaya Dolina), etc.
Nevertheless, according to the Central Bank of the Russian Federation, which controls the activities of housing cooperatives, there are 90 housing cooperatives in the register. In reality, there are about 60 stable working organizations, since 20 ZhNK have already been liquidated, and about a dozen are in a pre-bankruptcy state. It can be concluded that, at a minimum, regional developers have not refused to raise funds for construction through housing cooperatives, and, moreover, they even continue to bring new projects to the market. For example, in March, the Unistroy company announced the launch of a large-scale project in Ufa - the Vienna Forest residential complex, where you can buy an apartment through ZhNK.
Experts believe that in the next few months the number of such developers will increase. “I am sure that ZhNK will start actively growing after July 1, 2018. Because small developers building 3-4 houses up to 120 apartments on average will not be able to work according to Federal Law-214. Given that we have not developed bank project financing, and it’s hard to say how long it will take to finance all projects,” predicts Violetta Basina, Chairman of the Committee for Interaction between Developers and Homeowners of the Russian Union of Builders.
According to her, after the amendments to 214-FZ come into force, small businesses will be the first to suffer, such companies will be forced to leave the market. Perhaps they will hold out for a year or two, completing the construction of old facilities, and then such a business will not be able to create new ones. Therefore, developers will either have to look for alternative options, or go into some kind of illegal schemes. The Committee assumes that many developers will start working under FZ-215 in the near future, and considers it important that they "take advantage of this opportunity wisely", and even offer to insure the construction business.
“If developers start taking money again, stealing it and leaving, we will get the same picture as under FZ-214 - they will not have the opportunity to work on the market. To prevent this from happening, we came up with a mechanism in the form of an Association and a Citizens Protection Fund, where the developer transfers money,” says Violetta Basina. The funds transferred by the developer will act as a guarantor of the completion of the facility, in case the company suddenly starts having financial problems.
In addition, uniform standards and rules for working in the market were developed. Of course, they are declared voluntarily, and not by law, but the Association will bring understandable information to individuals: here, there is a developer, there is a ZhNK, a fund, a bank, the state, where everything works in a single consortium, and when buying a home under this scheme there will be no risks for an individual at all. But at the same time, there is a clear understanding that a legal entity that operates under this scheme will act according to uniform rules and be under certain control: in this case, developers will monitor each other. Since if one developer encounters difficulties, the Association will finance it in order to pull out the project and prevent the appearance of deceived equity holders.
About the pros and cons of ZhNK
The first and main advantage of ZhNK is the possibility of acquiring housing without participating in a mortgage. In a housing savings cooperative, you can take installments at a maximum of 1-5% per annum, they don’t ask for income statements, they don’t require that a person has had a job for the last three to six months at the time of applying. In addition, you can become a member of the WNC at the age of 16.
When a citizen buys an apartment on the secondary market, he accumulates 30% of the amount on his own, and ZhNK pays for 70% of the cost of the apartment. And then it is already calculated from the ZhNK according to a certain scheme, depending on what period of accumulation and repayment a person chooses. In the case of ZHNK, the amount of payments can be varied, making it convenient for an individual, unlike, for example, the amount of a fee that the bank sets at its discretion. “Many citizens who do not have a large salary or have a bad credit history cannot apply to the bank for a mortgage, and therefore the ZhNK is really a good chance for them to purchase their own housing,” Violetta Basina notes.
If we consider this scheme from the point of view of guarantees in the emerging market, then ZhNK works according to Federal Law No. 215. This is a non-profit form of organization, the purpose of which is to provide citizens with housing. ZhNK can spend its funds either on the purchase of finished housing, or on the construction of a new one. If this is construction, then the money transferred by individuals or government agencies, ZHNK can spend only 20%. The rest of the funds are on a special account until the housing is put into operation. The Central Bank of the Russian Federation monitors the targeted spending of funds. This is a guarantee for citizens that their funds will be directed to housing, and that they will not be spent until housing is built. Therefore, in fact, there are no risks here. At any time, a citizen can withdraw from the ZHC and receive his actual share value.
As a rule, the actual value of a share increases during the year: funds are on a special account at interest - 7-8% on deposits today on average in the market. Accordingly, the amount that is there increases by 7-8%. And if housing is bought and the funds are transferred into square meters, the value of the share also increases depending on the rise in housing prices.
Since the activity of ZhNK is controlled by the Central Bank, there are practically no risks for depositors. If you look from the point of view of bankruptcy, only the members of the ZhNK themselves can bankrupt it, having made such a decision at the general meeting. For example, if the ZhNK has completed the task of building houses, and no more ZhNK is needed. An initiative may also be put forward by the Central Bank, in the event that the ZhNK submitted a report for the last quarter that does not meet the requirements of regulatory and financial stability - to control the targeted spending of funds. In this case, the Central Bank puts forward a requirement to eliminate these comments. If the remarks are not eliminated, then the Central Bank may initiate bankruptcy proceedings.
For individuals, guarantees regarding participation in ZhNK under FZ-215 are much higher than under FZ-214. The coming into force Federal Law-218 also includes articles on targeted spending of funds, on closing funds on escrow accounts - in general, the same guarantees are spelled out as in Federal Law-215.
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 shares by 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 thing. Is that the external side: registration of membership in the housing cooperative, and not a contract of sale.
But it was these changes that created the ground for the transition of housing cooperatives to a new form of activity: attracting 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 by 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 both in the primary and secondary markets with this money. 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, joint-stock companies, limited partnerships and organizations of other legal forms, including cooperative unions, have begun to do this. 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 stand apart and create a new type of cooperative was dictated by the unwillingness of the founders of PIK to be within 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 for the participation of a citizen in the authorized capital of a legal entity, property provision 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 been determined today, 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 technique, 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-construction cooperative has 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). Artificial cut-off of Russian housing-construction cooperatives from business, which, from their point of view, was natural development 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 Russian Federation(item-by-item). 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, created "from scratch", housing cooperatives already had a property base in their assets in the form of 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 position 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 the obligations of providing 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 residential buildings, premises and members, since this generally contradicts the nature of the 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 "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 organizational and 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 the Russian legal literature, the distinguishing features of a cooperative organizational and legal form (signs of cooperatives of any kind that distinguish them from other types of legal entities) are:
- membership, which is the organizational basis for the formation of a cooperative;
- democratic principles of governance (in particular, one participant - one vote);
- making property share contributions by members of the cooperative;
- 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. The implementation of commercial activities by persons having the status of a non-profit organization can be allowed only if they are subject to all the private and public legal 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 the new kind 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 features 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 to the legal regulation of consumer cooperatives; 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 from citizens and legal entities of agricultural and craft products, wild fruits, berries and mushrooms, medicinal raw materials with their subsequent processing and sale; production of food products and non-production goods with subsequent sale through retail organizations; 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 a clear and unambiguous distinction between the concepts of “production cooperative”, “consumer cooperative”, “consumer society”, “agricultural cooperative” ... in order to further development and support of 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 by adopting a single law "On Cooperation", bringing it into line with 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 of 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 distinguishing features of NPOs in comparison with commercial legal entities.. Otherwise, this classification loses its meaning. If you are exclusively involved 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 transactions charitable foundation, which purchases office equipment for its own needs, and a small wholesaler who 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.
Founders can take advantage of the benefits of a non-commercial legal entity provided by the current legislation, even when the activities of this entity can actually be difficult to distinguish from entrepreneurial activities. 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 even 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” does not hinder the understanding of this circumstance.
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, different size share contributions and, accordingly, different risks predetermine proportional participation in the management of the affairs of a 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 general principle 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 the funds available to him in the construction of residential premises (including 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 to direct income from entrepreneurial activities of ZhNK to the reserve fund, the funds of which, upon reaching the size 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". The 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 full payment of the share contribution.
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; 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 common areas, engineering infrastructure and adjacent territory simply do not exist for the housing cooperative. Until the 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 at least for some time they exist as cooperatives, uniting members with a common interest, and then they 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 little money, but there is time to solve the housing problem, it is worth contacting a 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:
- the presence of signs of the organization (participants, management bodies, internal divisions, the procedure for entry, the formation of bodies and divisions, competence, relationships);
- availability of separate property (from the property of participants and any third parties);
- individualization in circulation and in public relations - “own name”;
- 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), grants 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 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 - in 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 acquisition 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:
- attraction and use of citizens' funds for the purchase of residential premises;
- 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;
- acquisition of residential premises;
- 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:
- issue loans to individuals or legal entities;
- donate living quarters;
- transfer residential premises for free use;
- 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;
- 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. The 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:
- 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;
- 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;
- 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
- 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;
- 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;
- 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. AT 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 the declared purpose of making profit, tied by law either to a specific legal form (commercial legal entity), or to a specific fact (state registration of constituent documents giving the right to engage in entrepreneurial activity, registration as an individual entrepreneur, or to a specific 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 making a profit, but satisfying 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:
- activities of real estate agencies;
- real estate management;
- preparation for the sale of own residential real estate;
- provision of intermediary services in the purchase, sale and lease of residential real estate;
- provision of intermediary services in the evaluation of residential real estate;
- housing management (in addition to real estate management);
- activities in the field of legal services;
- advising on business and management issues;
- provision of insurance services;
- construction of buildings and structures;
- installation of engineering equipment of buildings and structures;
- production of finishing works;
- 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 trade 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).
Housing savings cooperative is an association of voluntary shareholders who wish to purchase real estate, but do not have sufficient funds and do not want to apply to a bank for a mortgage loan. In this case, real estate means an apartment or a residential building: participation in the ZhNK does not make it possible to purchase a room or a land plot for construction.
According to Federal Financial Markets Service There are 73 such associations in the Russian Federation, seven of which are located in St. Petersburg. Associations are regulated 215 FZ "On housing savings cooperatives". In particular, the law prescribes the obligation to create a reserve fund. Its size is determined individually, but cannot be less than 1.5% of the mutual fund. At its expense, if necessary, the losses of the cooperative are covered, which makes it possible to guarantee the safety of funds contributed to it by shareholders. In addition, the activities of such cooperatives are supervised through annual audits conducted by the Bank of Russia. All key decisions regarding the activities of the WNC are made by the general meeting of its members, in which everyone has equal rights.
The principle of functioning of the ZhNK
Housing savings cooperatives in Russia are actually associations that allow their members to accumulate a down payment for the purchase of real estate, and then provide the missing amount for the purchase of an apartment as a loan. Their principle of operation is based on the following steps:
- Applying for admission. The lower age limit for shareholders is 16 years. At the same time, to join the ZhNK in the selected region, it is not necessary to have a permanent registration in it: Russian citizenship is enough to be able to purchase real estate according to the described scheme anywhere in the Russian Federation. Information about all participants of the ZhNK is entered in the state register. After entering the information, an entrance and membership fee is paid, and the person who submitted the application becomes a full member of the association.
- After joining, the accumulation period begins to pay the down payment of the cost of housing. The accumulation is carried out by making share contributions. In addition, participation in the cooperative involves a monthly membership fee. According to Article 47 of the Federal Law 215, we cannot talk about an amount that is less than 30% of the value of real estate. This is one of the key differences between ZHNK and mortgage: if in order to get a loan from a bank it is necessary to have a significant amount equal to the size of the down payment, then the cooperative allows you to save it. The scheme for making payments, just like the size of the entrance and membership fees, is determined by each cooperative individually.
- After the participant has made the necessary number of payments to ensure the down payment, he gets the opportunity to purchase an apartment or a residential building. At the same time, in any ZHNK, a certain order of acquisition of housing is maintained, determined by the general meeting of members. About 30% of the value of real estate ZhNK also provides its members from the savings of other members. The rest is given as a loan. At the same time, according to Law 215 "On Housing Savings Cooperatives", the right to purchase housing appears with the shareholder after two years from the date of its entry into the register. In turn, the term for the provision of installments depends on the period in which the initial payment was accumulated: it can be more than a maximum of 1.5 times. So, for example, if the shareholder has been saving the down payment for 3 years, the installment plan can only be granted to him for 4.5 years.
- The acquired apartment until the full repayment of the loan is registered as the property of the ZhNK. After its repayment, the apartment is re-registered as the property of the shareholder, who receives the right to dispose of it at his own discretion.
Exit from ZhNK
Housing savings cooperatives, reviews of which can be found on the Internet in the same way as reviews of developers, are an association of citizens on a voluntary basis. That is why, if necessary, you can leave such a cooperative. The algorithm for exiting the ZHC depends on the specific stage of the acquisition of real estate that its participants are at.
- If a member of the ZHNK at the time of leaving it is at the accumulation stage, the full cost of the share contributions paid by him is returned to him, while the monthly membership and entrance fees are not compensated.
- If the property is already in the use of the shareholder, but its loan to the cooperative is not fully repaid, he has two possible options: to leave the ZHNK with the preservation or loss of the apartment. In order to keep the property and then transfer it to the shareholder, it will be necessary to repay the remaining loan amount in a single payment or through the provision of a traditional loan. If the shareholder leaves the cooperative without retaining the property, he will be returned the entire amount of the money he has contributed, with the exception of the entrance and membership fees, as well as the interest that the cooperative retains for itself on account of the use of the funds provided by it.
In addition, a shareholder can not only leave the cooperative, but also sell his participation in it, transfer it.
Thus, housing savings cooperatives are an alternative to mortgages that allow you to purchase real estate in the absence of the possibility of making a large down payment. At the same time, the activities of any ZhNK are coordinated by law, which simultaneously introduces certain restrictions, for example, the impossibility of acquiring real estate earlier than two years after joining the cooperative. That is why, before deciding to join the ZHC, it is worth studying all the nuances and weighing the pros and cons.
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With the advent of various mortgage programs, the option of acquiring an apartment through a housing savings cooperative (HSC) has undeservedly faded into the background. But still, it should be considered in certain cases; like other opportunities to get your own apartment, it has its pros and cons.
ZhNK is a non-profit organization that collects share contributions for the purchase of housing. The activities of such a cooperative are regulated by the Federal Law:
A passport is enough to join a savings cooperative. Here, the participant is not required to have an ideal credit history, official employment and a large package of documents for consideration. The main thing is to make monthly share contributions, the amount of which is negotiated in advance. All the savings of shareholders are managed by the cooperative, of which the following is paid:
- Construction;
- Repair;
- Insurance;
- Content;
- Public utilities;
- Repayment of loans;
- Payment of taxes.
When more than half of the cost of the apartment is paid by the invested funds and the agreed period of savings ends, the cooperative member receives money from the general fund to buy his home. The remaining half of the cost of the apartment is paid within 10-15 years.
The main feature (and difference from a mortgage) in this case will be that until the cooperative member pays the full cost of his housing, it remains in the ownership of the ZhNK. The option of obtaining a mortgage is more attractive due to the fact that the apartment immediately becomes the property of the borrower, only an encumbrance is imposed. No matter what happens to the bank, the owner of the apartment, even if it is pledged, will have no problems. There will only be a change of lender. A housing cooperative is a riskier option, as it is an enterprise, albeit a non-profit one, that is more difficult to control by the state.
In the event of an economic crisis, the borrower who has issued a mortgage wins: the terms of the loan agreement apply for the entire long term of the mortgage loan, a fixed monthly payment is charged, which, against the backdrop of rising prices and the depreciation of money, seems to be relatively small. And for a member of a housing cooperative, everything is not so rosy - contributions can grow by a third, cooperatives independently calculate required size share contributions, which should compensate for the costs of ZhNK.
Advantages and disadvantages of ZhNK
The advantages of a housing cooperative in the minimum lump-sum contribution (15,000 - 20,000 rubles against 20% of the cost of housing with a mortgage), no need to collect certificates and provide a large package of documents, low interest rates (5-7% per annum), in fact, buying an apartment is practically on a long-term basis.
But in order to insure yourself against a strong increase in share contributions, you will need to study in detail the clause of the agreement regarding indexation. The amount of indexation is not limited by law, therefore, due to the duration of the apartment acquisition scheme, it is better to insist on a reasonable framework.
The risks associated with participation in a housing cooperative include:
- Risk of exclusion from the cooperative at the general meeting
- Losses within the limits of share savings associated with the activities of the cooperative
- The presence of payments that will not be taken into account in the cost of the future apartment: entrance fee, membership fees
- The possibility of bankruptcy of the cooperative before the final payment of all contributions and the transfer of ownership of the apartment to the shareholder
- In case of early exit from the cooperative, a long return of the down payment, a penalty may be imposed for non-compliance with the terms of the contract
Despite all the risks, housing cooperatives are quite reliable, control over compliance with the housing tax is carried out by the Central Bank of the Russian Federation. In addition, the risk can be considered justified due to the fact that the rate is two times lower than on a mortgage, but this only works in a stable economic situation: low inflation, low real estate prices.
A savings cooperative wins in some details not only before applying for a mortgage loan, but also before a housing construction cooperative, as it does not have the risk associated with “unfinished construction”. If the housing cooperative builds or reconstructs a house for shareholders, then the shareholders of the housing cooperative are already dealing with finished real estate. (see article "")
How profitable is it to be a member of the WNC?
Example: Let's say the cost of an apartment is 5,000,000 rubles, if you get a mortgage loan for 10 years at 12% per annum, with an initial payment of 1,000,000 rubles, we will get an overpayment of 6,888,156 rubles. the cost of the apartment, that is, 1,750,000 rubles, the remaining amount is paid gradually at a rate of 5% per annum, we get an overpayment of 886,819 rubles. Even if you remember that the calculation is very rough, and does not take into account entrance and membership cooperative fees (several tens of thousands of rubles), some features of interest calculation, the overpayment will still be many times less than for a mortgage loan.
It is obvious that ZHNK allows you to acquire housing on much more favorable terms, compared to a more expensive mortgage loan. ZhNK, as a non-profit organization, is aimed not at making a profit, but at the financial mutual benefit of shareholders, satisfying their need to purchase housing. Certificates, guarantees and guarantees are not required. Under certain circumstances (informal employment, negative credit history), participation in the JNC is practically the only way get your own property.
The shareholder needs to be prepared for the fact that for the first couple of years, at least, it will be impossible to move into an apartment purchased through the ZhNK, and housing will become property only after the payment of all shares. There is also no risk insurance, which is typical for bank loans, which for some will even be a plus, since there will be no “thirteenth payment” on the mortgage. If all this is acceptable, then it is worth giving preference to a housing savings cooperative.
A housing savings cooperative (HSC) is created to purchase a room, an apartment or an individual house, a garage or a parking space. Unlike the housing cooperative, which, as a rule, was created for the construction of one house, the housing cooperative “works” with different houses, acquiring housing for shareholders, both in the primary and secondary markets. In addition, he himself can act as a developer or participant in the construction.
According to the law on ZhNK, the shareholder must first accumulate the minimum part of the contribution (at least 30% of the cost of housing), after which the cooperative adds another 30% to this amount from its own funds, and for the remaining 40% it takes a bank loan for the shareholder and allocates him an apartment . A person can immediately move into it, but until he fully pays off the cooperative, the apartment will be owned by the ZhNK.
In order to prevent ZhNK from getting bogged down in construction at the stage of excavation and not directing all the money for the construction of one house, Law No. 215-F3 limited the participation of the cooperative in new construction. For these purposes, it is allowed to direct no more than 30% of the funds if the ZhNK participates in new construction as a developer or shareholder.
There are no advantages for housing savings cooperatives, apart from the fact that interest rates are lower than for classical mortgages. However, proof of income is not required to join the WNC. It is enough for a citizen to write an application about what kind of apartment he would like to purchase, and make contributions on time. All other problems are solved for him by the cooperative. Minus: a member of the cooperative is not the owner of the housing until it has been paid in full.
Housing and construction cooperative
A housing construction cooperative belongs to the consumer sector, where the process of housing construction is being implemented with a gradual transformation into homeowners' associations. This scheme existed long before shared construction, it has been tested and worked out by law. The essence of this scheme is the intended purpose of the funds invested by citizens. A citizen joins a cooperative and begins to pay for his share, for which a particular apartment is booked.
Acquisition of a property through participation in a cooperative gives less overhead costs. However, in this case, the property becomes the property of the cooperative and, as a result, difficulties arise when registering its pledge.
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