unscrupulous developers, in order to avoid liability to those who invest in construction and acquisition of the ownership of property, are increasingly using the new "old" the bypass of the Federal Law "On Participation in joint construction" - the creation of housing co-operatives.
HBC essence is that citizens, combining their funds (equity contributions), organizing or HBC entered into it, across the board and its chairman HBC participate in the construction of housing for its own needs.
Everything seems just have to wait treasured square meters.
But suddenly, like a bolt from the blue: "Construction is frozen, there is no money, the developer goes bust, the citizens of shareholders - goodbye, but rather:" Good-bye, because we have been forgiven! ".
If you're reading this - either you've already heard this, or you have a sneaking suspicion or are thinking about joining the HBC.
and the question arises: "What happened?Where desired property?Where's the money? ".
try to sort out this issue.
What would have happened, be sure to call your attention to nezhesleduyuschee and remember that all is not lost.
«gray» schemes of diversion of funds through the HBC.
developer (who organize all construction), having owned or leased land for construction, attracts investors, t. E. Those who will pay for the construction and contractors - who is involved in the construction, from the design of permits and up to datethe house in operation.Contractor often acts and conscientious organization, also has a certain prestige in the community builders.
developer through intermediaries arrange HBC.HBC Why not "dolёvka"?And because the responsibility of the developer for F№ "On Participation in joint construction" in this case does not occur, even the law on consumer protection does not apply, ie. A. Against members of HBC and HBC are regulated only by the provisions of the Charter of the HBC and the Housing Code of the housing-building cooperatives.
As a result, the money of shareholders through HBC go to other organizations, and the HCC is responsible to the members of the cooperative only to property that they themselves have made, and either you are asked to contribute more, or HBC recognized bankrupt (sometimes eliminated).
What should pay attention to.
It may be observed the procedure of creating HBC or (i) the adoption of a member of the HBC.
In accordance with Art.121 Housing Code, which would become a member of the HBC, you must meet the following conditions:
1).Apply for membership in the housing co-operative.
2).Approval of the decision for membership in the housing co-operative members' general meeting (conference).
3).To pay the entrance fee.
Non-compliance with at least one of the conditions is the basis of what you will be a member of the cooperative.In this case, if the share contribution put forward to, a contract unit is concluded, the relationship fall within the construction contract and, accordingly, under the Law on Protection of Consumer Rights.It can be re-qualification of the contract on introduction of shares in the contract or general invalidity (nullity) deal (recognition of avoidable transaction as invalid and the application of consequences of its invalidity, the application of consequences of a void transaction).
In this case, you have a chance to "press" in the HBC as a contractor and as a developer to attract joint debtors on the side of the contractor and to claim unjust enrichment.
should be careful to apply the "recovery of property from illegal possession" - replevin.As it may be claimed only specific thing (for example, an apartment, a house), but not cash.
Often, the cooperative member draws up a power of attorney to the President of HBC to conduct activities pursuant to the objectives of HBC (negotiating, signing contracts on behalf of the HBC, other).On the one hand it is able to quickly carry out economic activities without convening a general meeting, on the other hand - you can not be traced with whom, on what terms signed contracts.Chairman of the Board of HBC and can get up anything.
Can I cancel such contracts or to recognize them as invalid (void)?
Let's see what the power of attorney.
power of attorney admits written authorization issued by one person to another person for representation before third parties.
power of attorney for transactions requiring notarial form must be notarized, except as required by law.
In this case, be sure notarized power of attorney or certified by a person having such authority.
In the absence of authority to act on behalf of another person, or in excess of authority transaction is concluded, on behalf of and in the interests committed her face, unless another person (represented) subsequently did not directly endorse the deal.
If the power of attorney framed properly, and you will no longer have approved the transaction, the transaction (agreement) is not concluded.Accordingly, the parties to the transaction must still vozvernut received on such a transaction.
And do not forget about the statute of limitations.
In the case of liquidation of HBC, the rules of the Civil Code, according to which, all the property of the cooperative, after settlements with creditors, is transferred to participants in proportion to their units of HBC.All contracts with other persons HBC terminated, respectively, all of unfulfilled transactions, and returns to the cooperative in the future, its founders (participants).
Well, if you are a member of HBC and is duly executed, if construction stopped, or for other reasons, you can assert their rights through the re-election of the Board and Chairman of the Board.If unable to re HBC management, you can get out of the cooperative and to demand the return of their share, including from third parties.
clarify everything stated above is advisory in nature, and each case should be considered separately.
