Registration and creation of OSMD
Registration and creation of OSMD is part of the legal support when registering business from the law firm AGTL Kharkiv, Kyiv, Odessa.
The co-owners of apartments are owners of apartments and non-residential premises in an apartment building. And OSMD is a legal entity created by them to promote the use of their property and management, as well as common property. At the same time, only one association can be created in one apartment building. Owners of apartments and non-residential premises in two or more apartment buildings, united by a common home territory, elements of landscaping, equipment, engineering infrastructure, can also create one association.
In order to register OSMD in the state authorities, it is necessary to:
- The protocol of the constituent assemblies;
- Two original charters signed by the chairman of the constituent assemblies;
- A list of OSMD members;
- power of attorney to register OSMD.
After the state registration, the OSBB can take the housing complex on the balance sheet.
There are several options for making a housing complex on the balance sheet of OSMD
The association of co-owners of an apartment building can: (1) take on the balance of the entire apartment building; (2) under a contract with the previous owner to leave its ba[предыдущего владельца]lance holder of the entire apartment building or part of it; (3) to conclude a contract with a legal entity, the statute of which provides for the possibility of carrying out the relevant activities, on the transfer to the balance of the entire apartment building or part of it.
The decision to accept the housing complex on the balance sheet is taken by a qualified majority of the participants of the general meetings, i.e. three-quarters of the members present at the meetings of the OSMD. The procedure of transferring to the balance of the housing complex is defined by the order of transferring the housing complex or part of it from the balance sheet to the balance sheet.
A commission is created to take the apartment building on the balance sheet, which includes representatives of the previous balance holder and OSMD. In the event of a decision to transfer the housing complex or part of it to the balance of another legal entity, representatives of the marked legal entity are also included to the commission. The decision of the general meetings of the OSMD to accept and transfer the housing complex or part of it to its balance sheet or to the balance of another legal entity is formalized by the protocol. The protocol should determine the list of persons who will be part of the commission created for the adoption and transfer of the apartment building, as well as the person authorized to sign the act of receiving and transferring the apartment building or its part from the balance sheet. The Commission determines the technical condition of the house and constitutes the act of receiving or transferring the apartment building or part of it from the balance sheet.
Therefore, in order to transfer an apartment building or part of it, it is necessary to have technical documentation: inventory, act of commissioning, plans of external networks and so on.
Once the transfer of the house to the balance sheet is completed, OSMD can start its economic activities.
Step-by-step instructions for the creation of OSMD
Stage 1. Preparing for the constituent assembly
Step 1.Create an initiative group
The initiators of OSMD in their home first need to create an initiative group, which will be engaged in the preparation of the constituent assembly of OSMD.
Step 2.Gather information about the house
Contact the housing and housing service with an information request for the following information about the house:
The availability of a technical passport at home;
The total area of the house and the area of all residential and non-residential premises in the house;
The availability of built-in non-residential premises and their belongings;
The availability and use of support facilities, tenant information and the cost of rent;
The area to be cleaned around the house;
The total number of all persons registered in the house, including the number of beneficiaries and recipients of subsidies;
The number of privatized and non-privatized apartments;
Lists of owners of all residential and non-residential premises in the house;
The amount of tenants’ debts for house maintenance, if any.
After that, determine the economic feasibility of creating OSMD in the house, drawing up a project estimate for the maintenance of the house. This estimate will be the main tool for the agitation of the co-owners of the house for the creation of OSMD. Taking into account the fact that the majority of co-owners are often afraid of tariff increases after the creation of OSMD, it is recommended to leave the amount of the contribution for the maintenance of the house (tariff) in the first stage of activity the same as it was “in the housing department”.
Step 3.Prepare a Charter
Develop the CHARTER of OSMD on the basis of the Model Charter of the Association of Co-owners of an apartment building, approved by the order of the State Housing Committee of 27.08.2003 No. 141, and the requirements of Article 7 of the LAW.M.P. Act. Be sure to note that in order for OSMD to be introduced by the tax inspectorate to the Register of Non-Profit Organizations, paragraph 14.3. the statute should not be spelled out in the manner proposed in the Model Charter, but as noted in paragraph 7.11.11. Ukraine’s Law on the Taxation of Profits of Enterprises” : “In the event of liquidation of a non-profit organization, its assets must be transferred to another non-profit organization of the relevant kind, or credited to the budget revenue.”
Step 4. Satit tenants
It is important from the very beginning of their work to find support for the idea of creating a union among the co-owners of the house by:
Holding information meetings on the entrances;
Private conversations
Introduction to draft estimates and charters;
Distribution of propaganda leaflets about OSMD.
To popularize associations as an alternative form of housing management, it is necessary to awaken in tenants instead of the favorite habit of criticizing the power of the “feeling of the owner” which has very real powers. Only then will citizens finally begin to feel like real owners of their homes, not petitioners and complainants.
Step 5.Prepare for the constituent assembly
Before the general meeting:
1.Determine the number of owners of premises, which is 100%.
According to Article 9 of the Law of Ukraine “On OSMD” a member of the association may be an individual or a legal person who owns an apartment (apartment) or premises (rooms) in an apartment building.
Membership in OSMD is voluntary, and is acquired at the same time as the creation of the association at the constituent assembly, or individually, on the basis of a written statement, at any time of its existence. The procedure for adoption in the OSMD is determined by the statute.
Members of OSMD have the right to elect and be elected to the governing bodies – the board and the audit committee, to re-elect the management early, and have the right to unhindered access to the documents of the association, that is, any member of the OSMD can read the accounting documents and make sure of the purposeful use of funds.
At the same time, the co-owner, if he does not want, may not join the association, but he is not exempt from the obligation to participate in the financing of activities for the preservation and maintenance of common property. If the co-owner refuses to perform his duties, the association or any member of the union can force him to do so by going to court.
Thus, determining the number of all co-owners of the house, consider:
If the apartment has several owners, but the shares in the apartment are not allocated (i.e. each co-owner does not have a separate certificate of ownership of BTI for his share of the apartment), it is considered that the apartment is represented by one owner, usually recorded first in the certificate of privatization of the apartment;
Non-privatized apartments in the house have only one owner, usually – the territorial bulk of the city or the state (if the house – departmental);
The owners of non-residential premises in the house are also co-owners of the house.
2. Reserve the name OSMD. According to the law, registration of legal entities whose names are identical to those of other legal entities included in the state registry is not allowed. In order to avoid further misunderstandings, it is advisable to reserve the name of OSMD in the state registration authority. If OSMD with the same name already exists in Ukraine, it will have to come up with something new. If your name is not used by other OSMDs, you can reserve it for 2 months. During this period, you must apply for OSMD registration.
3. Define:
Venue,
The time it will take place
Draft agenda of the constituent assembly.
4.In addition to the aforementioned draft estimates and the charter of osmid, think in advance the nominations to the board and audit committee of the association.
5.No later than 14 calendar days before the meeting, be sure to notify each co-owner in writing about the date and time of the meeting. There are two ways to do this:
Give a notice to the owner.
Send mail notifications with a bespoke letter with an inventory and notification.
Don’t forget to invite a representative of the non-privatized part of the apartments, which is usually the balance holder of the house, to the meeting.
Stage 2. Hold a constituent assembly
A number of procedural rules must be enforced if the assembly is to be lawful and its decisions to be lawful.
1.At the entrance to the room where the meeting will be held, arrange registration of arrivals:
Owners of premises (or their proxies) with the right to vote, and it is desirable for them to issue a mandate of the assembly participant, for the convenience of counting votes;
Une-voting, usually employers and family members of owners.
The registration list, as well as the proxy for voting rights, are an integral part of the meeting’s documentation.
If a representative of the co-owner of the house – an individual – is present at the meeting, then according to the Civil Code of Ukraine, the power of attorney for the representation of his interests must be certified notarized.
2. According to the registration, determine the presence of a quorum at the meeting. The meeting is legal if it is attended by more than 50% of the owners of residential and non-residential premises of the house.
In the absence of a quorum, the initiative group sets a new date, place and time for the constituent meeting. A newly appointed constituent assembly can be held no earlier than 14 days after the meeting, which did not take place.
3.If the number of co-owners required for the meeting is assembled, the representative of the initiative group opens the meeting, announces the presence of a quorum and puts to the vote the question “Who is in favor of opening the meeting?”
The next to vote is the choice of the chairman and then the secretary of the assembly, who are elected by a majority of the co-owners present.
Any co-owner of the house and even, as an exception, a person who is not a co-owner may be elected as the chairman of the assembly.
The chairman of the assembly presides over the assembly: announces speakers on the agenda, directs the discussion of issues, conducts a vote, ensures the counting of votes.
The Secretary usually maintains the protocol of general meetings. The protocol includes:
The name of the meeting
The date and location of the meeting
The number of attendees
The surname and initials of the chairman and secretary;
The meeting’s agenda
Decisions taken at the meeting indicating the results of the vote.
4. The Chairman of the Assembly consistently puts to the vote the following procedural questions: the choice of the counting commission (optional), the agenda, the rules of the meeting.
According to Article 6 of the Ukrainian Law on OSMD, the decision at the meeting is made by name vote. A decision is considered to be taken if at least two thirds of those present who have the right to vote voted for it. Each voter must confirm their decision (“for” or “against”), personally putting his signature in the protocol with the results of the name vote.
The results of the name vote on all issues on the agenda are a mandatory annex to the meeting protocol and when the association is registered, together with the protocol, they are submitted to the relevant registration authority.
Only the owners or their authorized representatives can take part in the voting. At the constituent assembly, each owner, including the former sole owner of the house, has only one vote, regardless of the area and the number of premises that he owns.
As a rule, the following issues are put on the agenda:
1) the creation of a union of co-owners of an apartment building and the definition of its name;
2) approval of the charter of the association;
3) election of board members;
4) the election of the chairman of the board (if he is elected by the assembly, not the board);
5) the election of the audit committee;
6) the election of an authorized person to sign the charter of OSMD on behalf of all owners;
7) on the state registration of OSMD and on the election of the commissioner of the person responsible for registration.
After considering all the issues on the agenda, the presiding officer puts to a vote the question of closing the meeting.
Stage 3. State registration of OSMD
Step 1.Prepare your paperwork
The newly elected board must prepare a package of documents for the state registration of OSMD.
Registration of OSMD is regulated by:
On the one hand, the Law on State Registration of Legal Persons and Persons Entrepreneurs;
And on the other hand, the State Registration Order of the Co-owners of the apartment building, approved by the CMU Resolution of 11.10.2002. No 1521.
In order to register OSMD, board members need to prepare the following documents:
1) 2 ekzemplyr stitched, numbered, signed by the chairman of the constituent assembly of the charter of OSMD;
2) The original protocol of the founding meeting of OSMD;
3) the original annex to the protocol, which reflects the results of the name vote of the participants of the meeting on the issues of the agenda;
4) The original list of members of osmosis, issued on a special form, established by the CMU Resolution of 11.10.2002. No152. In this list, the shareholding (“share”) of each member of the association is calculated as the ratio of the total area of the apartment or non-residential premises to the amount of common space of all residential and non-residential premises of the house. The area of the auxiliary premises is not taken into account.
5) completed registration cards for the state registration of a legal entity (usually filled out in the state registration authority);
6) a copy of the notarized power of attorney for the representative who will register OSMD (unless it is the chairman of the board of OSMD).
Since some of the documents remain with the state registrar, it is advisable to immediately make the meeting protocol, list and addition to the protocol in several original copies.
Step 2.Get a registration certificate
The authorized constituent assembly person submits an application for registration together with the association’s founding documents to the State Registrar of The State Registration of Legal Persons and Individuals-Entrepreneurs of the City Council.
The State Registrar submits the OPMD statements to the Unified State Register of Legal Persons and Individuals – Entrepreneurs, and no later than three working days after receiving the necessary documents is issued and issued to the association:
A certificate of state registration of a legal entity;
Certified (signature and print) registration cards;
Certified (signature and stamped) charter of OSMD.
At the same time, he has no right to require you to submit documents other than the documents provided and issued in accordance with the State Registration Order of the associations of the co-owners of the apartment building.
State registration of the associations created is free of charge (Article 6 of the Law on OSMD), but for the reservation of the name of OSMD, for notary (assurance of signatures, assurance of copies) and other services will certainly have to pay.
After the state registration of OSMD it is necessary to register with the state statistics bodies, the state tax office, the Pension Fund and the funds of the general state social insurance, to make stamps and stamps, as well as to open a bank account. Moreover, in the case of late registration in these bodies, OSMD can expect administrative fines. It should be remembered that registration in the tax office and funds, as well as timely reporting, are mandatory, regardless of whether OSMD is financial or not.
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