The chairman of the board of SNT turned to me. The essence of the problem: in December, at the initiative of the members of the board, an extraordinary general meeting of members of the SNT was held. The chairman of the board wants to recognize the specified meeting as unauthorized.
Here's what we found out. Life in SNT flowed neither shaky nor rolls. There was no order in the document flow, about registration labor relations no one thought about the workers either.
For a long time, no one brought the charter of the partnership into line with the law. In short, in what form the previous chairman handed over everything to my chairman of the board (we are talking about documents), in this form it all lay.
The chairman, as best he could, worked for the benefit of gardening, tried to "do good." Perhaps this is not really his place.
But once you have chosen, then you have to try.
In the summer of 2014, his powers were extended for another 2 years. The summer season has come to an end. And suddenly...
It became known to some members of the board that an asphalt road would pass next to the SNT (the plan is already in the architecture of the city) !!! The boarders quickly realized that the land plots in this situation would increase in price, and there was a prospect of their gasification (nearby a residential village).
You can’t really turn around with the current chairman of the board, because he didn’t “blow around” with the rulers (he wasn’t on friendly terms). This means that we need our own person, younger and more energetic, who will actively promote the interests of the board members of the SNT (an established mini-collective), and of course our own.
The board members decided to hold an extraordinary general meeting of SNT members, terminate the powers of the current chairman of the board with the wording "due to loss of confidence", and choose their protege. …....
The board members were preparing the upcoming meeting without the participation of the chairman. They themselves established the lists of SNT members with the help of an accountant for payment documents. The extraordinary meeting was actually attended by members of the SNT and not (sorry) members, because. people going through registration did not confirm their membership in the SNT with a membership book, did not present an identity document, but at the same time they participated in the vote, and their votes were counted.
When the meeting began, and the counting commission announced that there was no quorum, the following proposal was received: to put a new proposal on the agenda - to get the missing votes by the votes of authorized representatives. They voted successfully, and the meeting continued (immediately, for fidelity, they also riveted powers of attorney from persons who were not present at the meeting. And after the meeting, the rulers visited those who were not present and asked them to sign where necessary).
Everyone was happy.
Only my chairman was not happy after this meeting and turned to the prosecutor's office to ask the members of the board to request the minutes of the extraordinary meeting and lists of participants in the meeting. A little later, SNT, represented by the new chairman of the board, applied to the Court for the recovery of Fin. and constituent documents from my chairman.
And at that moment the client came to me, and we filed a counterclaim (Chapter 9.1 of the Civil Code of the Russian Federation to help me))) and asked the Court to recognize the meeting as incompetent, and the decision of the extraordinary meeting null and void (Article 181.5 of the Civil Code of the Russian Federation).
We provided the Court with a list of SNT members registered with Rosreestr. Federal Law No. 66 and the Civil Code of the Russian Federation clearly define in which case the decision of the meeting is considered adopted (I'm talking about the number of votes). The newly elected chairman of the board (and the lawyer who appeared with him) in the Court said that the Charter of the company establishes the required number of votes at 25% of total number.
Indeed, it was in the Charter. But some long-time chairman of the board crossed out this figure ballpoint pen, and wrote 50% next to it.
This is how the Bylaws were amended. Funny, I agree. (this is a separate topic altogether) But, whatever is written in the Charter, its provisions should not contradict the current legislation.
So the focus with 25% did not work.
Members of the horticulture about the upcoming extraordinary meeting were notified in violation of the current legislation (the notifications did not indicate the issues put on the agenda - part 2 of article 21 of the Federal Law No. 66).
The powers of attorney giving the right to participate in the meeting and vote, provided by the new chairman of the board, turned out to be void, because they did not contain the date of commission (paragraph 2, part 1, article 186 of the Civil Code of the Russian Federation).
We also petitioned the Court to request documents from the prosecutor's office (I'm talking about the documents that the prosecutor's office requested based on my client's request). When we compared the lists submitted to the prosecutor's office with the lists submitted to the Court, we saw that the lists submitted to the Court were added by hand (this is how the number of SNT members participating in the meeting increased easily and simply).
And on the little things, there were many, many more things that had to be established (like, not all members of the board are members of the SNT, which is illegal, the registration lists have exactly the same signatures opposite different names, the signature of a person in the registration list differs from the signature of the same person in the summer minutes at a meeting of the street, or a member of the SNT wife, and the husband came to the vote and voted, etc.)......
I'm mentally tired of this case. I studied a bunch of documents, compared and analyzed by name (there are more than 600 members in the partnership). In addition, a group of support members of the board (30 people, gardeners) came to all meetings.
They roared, made comments in the Courtroom. They bullied my client. But...
By decision of the District Court, the requirements of SNT in the person, on the reclamation of, fin. and constituent documents were rejected, and my client's claims for recognition of the decision of the extraordinary general meeting insignificant satisfied in full.
Now we are preparing for the appeal (essentially))) I am confident in myself. But I don't relax either.
I will definitely share the results. (By the way, the other side has changed legal counsel. Now I will meet with their lawyer in the appeal).
Let's see what it will change)
SOLUTION
In the name of the Russian Federation
(Date anonymized)
Istra City Court of the Moscow Region, consisting of:
presiding judge Bardin M.Yu.,
under the secretary Shirokova I.A.,
examined in open court a civil case under the claim of Yurbachev A.P. to SNT "Kholshcheviki-1" on invalidating the decision of the general meeting,
u s t a n o v i l:
Claimant Yurbachev A.P. filed a lawsuit to invalidate the decision of the general meeting of the SNT "Kholshcheviki-1" dated (Date anonymized), indicating in justification that (Date anonymized) an illegitimate meeting was assembled by an initiative group of members and non-members of the SNT, by the decision of which the powers of the chairman were removed from him . I do not agree with the decision on the following grounds: The procedure for convening an extraordinary general meeting has been violated. Violation of the rules of conduct of the general meeting. Violated Art. 11, paragraph 3 of the Charter, namely a total of 106 members, there were 34 members of the SNT, and there should be more than 53 members of the SNT. The list of those who voted at the meeting included the owners of the plots who, at the time of the adoption of the charter of the SNT, were not members of the SNT and still are not, these are Morozov M.M., Chaklina N.A., Smirnova A.I., Linyushin V.V., Nikolaeva N.N., the paintings of Rumyantseva E.M., Komissarov N.M., who has been outside the Russian Federation for a long time, raise doubts. Melnikova A.N. was not present at the meeting, her husband Melnikov N.V. signed for her. Istomina T.A. was entered twice, the signature of Rtishchev A.V., who was not at the meeting, was forged. The powers of attorney of 14 members of the SNT were not presented to the general meeting and in violation of Art. 11 clause 3 of the Charter is not signed by the Chairman of the Board. In addition, Linyushin V.V. was elected to the board. not a member of the SNT, Kovynev V.A. and Kupriyanova O.P., who were not present at the meeting.
Claimant Yurbachev A.P. The claim was held and asked to invalidate the decision of the general meeting of the SNT "Kholshcheviki-1" dated (Date anonymized) in full.
Representative by proxy SNT "Kholshcheviki-1" Savateeva E.S. explained that Yurbachev A.P. A letter was sent, which was signed by 70 people with a request to hold a meeting. A total of 106 members of the SNT, (Date anonymized) a meeting was held, which was postponed to (Date anonymized) There were 41 people at the meeting on September 3, and 15 people voted by proxy, the list indicates those who were present in person and by proxy, Istomina twice I signed by mistake, but there was a quorum. Linyushin applied for membership in the SNT, but it was never considered. Smirnova's husband died (the date is anonymized), she applied for membership in the SNT, but no decision was made on her. The situation is the same for Nikolaeva, she pays membership fee, applied for admission on (Date anonymized), but it has not been considered. Chaklina has a certificate of ownership of the land, she pays membership fees, she did not apply for membership in the SNT. Morozov came to the meeting, but the site was registered not for him, but for his mother. Komissarov was not present at the meeting, his mother was at the meeting, but without a power of attorney. Rumyantsev and Melnikova were at the meeting and signed themselves. Rtishchev was not at the meeting, this time, as always, his wife was present, a marriage certificate is not currently available. According to the Charter of the SNT, a power of attorney can be certified by both the chairman and any other person.
The court found that the decision of the general meeting of SNT «Kholshchevieki-1» from (date anonymized) Yurbachev A.P. elected chairman of the board.
(Date anonymized) an extraordinary general meeting of members of the SNT "Kholshcheviki-1" was held at which issues were resolved on the re-election of members of the board, the chairman of the partnership, members and the chairman audit commission, other issues, about which the minutes of the general meeting were drawn up with an appendix - a list of registration of members of the SNT on two sheets. The minutes of the extraordinary general meeting indicate that 56 members were registered, 15 of them by proxy, 10 members refused to register, but participated in the vote, in total 66 members of the SNT were present at the meeting, which is 57.4% of the total number of members of the partnership, the quorum 57%.
The court concludes that the claim is satisfied on the following grounds.
When making a decision, the court takes into account that the violation of the procedure for convening an extraordinary general meeting, the rules of conduct of the general meeting, the procedure for familiarization with the decision of the general meeting, in themselves, in the presence of a quorum, are not an unconditional basis for declaring the decision invalid.
In accordance with Art. 21 federal law N 66-FZ "On horticultural, horticultural and country non-profit associations citizens" a general meeting of members of a horticultural, horticultural or dacha non-profit association (a meeting of authorized persons) is competent if more than fifty percent of the members of such an association (not less than fifty percent of authorized persons) are present at the said meeting. A member of such an association has the right to participate in voting personally or through his representative, whose powers must be formalized by a power of attorney certified by the chairman of such an association.
It follows from the explanations of the parties that Komissarov and Rtishchev were not at the meeting, their relatives were present for them without a power of attorney.
The case file contains 15 powers of attorney not certified by the chairman of the SNT, however, this fact does not entail the invalidity of votes on these powers of attorney, since the law provides for other consequences of actions in the absence of a power of attorney.
By virtue of Art. 183 of the Civil Code of the Russian Federation, if there is no authority to act on behalf of another person or if such authority is exceeded, the transaction is considered concluded on behalf of and in the interests of the person who made it, unless the other person (represented) subsequently directly approves this transaction.
The plaintiff did not provide evidence that the represented citizens (members of the SNT), by proxy and without a power of attorney at the general meeting, did not directly approve the decision of the general meeting.
According to the explanations of the parties, there are 106 members in the SNT "Kholshcheviki-1".
Thus, in accordance with Art. 21 of the Federal Law No. 66-FZ, the general meeting of members of the SNT "Kholshcheviki-1" is competent if more than 53 members of the SNT are present at the specified meeting.
According to the list of members of the SNT "Kholshcheviki-1" who were present at the meeting (date anonymized), 57 people.
However, Istomina T.A. listed twice.
Evidence that 10 members were present at the meeting, who refused to register, but participated in the vote on the part of the defendant is not presented.
Evidence that the signature Rumyantseva E.M. and Melnikova A.N. delivered by another person or that Rumyantseva E.M. and Melnikov A.N. did not attend the meeting the court is not represented.
In deciding, the court takes into account that, in accordance with Article.18 h.4. Federal Law N 66-FZ "On horticultural, horticultural and dacha non-profit associations of citizens" the founders of a horticultural, horticultural or dacha non-profit association are considered accepted as members of such an association from the moment of its state registration. Other persons joining such an association are accepted as its members by the general meeting of members of the horticultural, horticultural or dacha non-profit association.
From the explanations of the parties, the materials of the case, it follows that Morozov M.M., Chaklina N.A., Smirnova A.I., Linyushin V.V., Nikolaeva N.N. were not founders of the SNT and were not accepted by the decision of the general meeting as members of the SNT, and therefore they are not members of the SNT and did not have the right to vote at the general meeting.
Thus, 34 members of the SNT were present at the general meeting (the date is anonymized) and from 15 members of the SNT they voted by proxy, from two members of the SNT without powers of attorney, and in total from 51 members of the SNT.
Thus, the general meeting (the date is anonymized) was not eligible, since it was not attended by more than 53 members of the SNT.
These violations during the holding of a general meeting of members of the SNT are significant, violate the rights of the plaintiff, in connection with which the court concludes that the claim is satisfied.
Guided by Art. 194-199 Code of Civil Procedure of the Russian Federation, court,
I DECIDED:
The claim of Yurbachev A.P. to satisfy.
To invalidate the decision of the general meeting of the SNT "Kholshcheviki-1" dated (Date anonymized) in full.
The decision can be appealed within a month to the Moscow regional court through the Istra City Court.
presiding:
Decision made (Date anonymized)
If you would like to make an appointment with lawyers specializing in land relations, registration of real estate, inheritance, neighborhood law, to get a detailed, realistic consultation in private, with a prediction of a court decision, call:
2018 is the last year when a general meeting can be held “in the old way”. Since 2019, due to the entry into force of 217-FZ, the procedure will change significantly.
The definition of "correctly" means holding a general meeting in such a way that it would be extremely difficult or impossible to challenge it in court.
Who and for what reasons can cancel the decisions of the general meetings of the SNT in court.
Only a member of the SNT can apply to the court to challenge (or invalidate) the decision of the general meeting in 2018. From 2019, individuals will also have this right, as they will also be able to participate in general meetings, albeit on a limited range of issues.
An important condition for going to court is a violated right. Therefore, the answer to the question of the court “what violated your right” must be prepared in advance. If the issue of determining the amount of contributions was considered, then the answer is easy. If financial issues were not considered, then, as a rule, the right of a member of the SNT to elect and be elected to the governing bodies and the control body of the SNT is violated.
There are great chances to cancel the decisions of the general meeting of members of the SNT if:
- Convening a general meeting by unauthorized persons.
- The procedure for proper notification of members was not followed or the board does not have documentary evidence.
- There was no quorum at the meeting, or the presence of a quorum cannot be confirmed by registration sheets and original powers of attorney.
- Making a decision on an issue not specified in the agenda of the general meeting of members at the time of notification of the meeting.
- Holding a general meeting in the form of absentee voting on issues on which absentee voting is not provided for by law.
- Holding a general meeting in absentia, if the possibility and procedure for holding a general meeting of the NST in absentia is not provided.
Within what time from the moment of holding a general meeting of members of the SNT can it be canceled in court?
When gross violations procedures for holding a general meeting of SNT members, there are great chances to cancel the decision through the court if no more than six months have passed from the date of the meeting. Legislatively, a period of six months is provided for challenging the decisions of SNT meetings from the moment when the person learned or could learn about the decisions taken, but not more than two years from the moment the information became publicly available.
The most difficult thing is to document that the gardener did not know and could not know about the decisions made for six months and only therefore goes to court to protect his rights after six months. Therefore, in practice, if more than six months have passed since the date of the general meeting, it is very difficult to cancel the decisions of the general meeting of the SNT in court.
To minimize the chances of overturning the decision of the general meeting of SNT members, the following procedures must be followed:
Convening a general meeting of members.
If we are talking about a regular or extraordinary general meeting of members with any agenda, then only the board of the SNT can convene a general meeting. The initiative group, no matter how numerous it is, is incompetent to initiate the holding of a regular or extraordinary general meeting with any agenda. There is only one issue, for the solution of which the initiative group in the amount of more than 1/3 of the number of members can initiate and hold an extraordinary general meeting. This is a question about early termination the powers of the current board and chairman and the election of new ones. The decision to hold such a general meeting (re-election) is drawn up in any form, but with the date, place, time of the general meeting and signatures of more than 1/3 of the members of the SNT. The requirements for further actions of the initiative group are the same as if the initiator was the board of the SNT.
Notice of a general meeting of members of the SNT.
It is not enough just to notify about the upcoming meeting, you need to do additional manipulations so that material evidence remains: a photo, a newspaper, a website, an inventory of sending a letter with a notification.
The text of the notice must include:
Date, place, time of the general meeting of members of the SNT
List of questions submitted for voting.
Notification must be made at least two weeks before the general meeting of members of the SNT.
There are several ways to notify members of the CNT General Meeting correctly:
1. Registered letters at the address of gardeners. Expensive, time-consuming and inefficient, since most often there are no relevant addresses in the board. From the point of view of the legal security of the board, the method is effective, from the point of view of the prospect of collecting a quorum - not very much.
2. Place on the information board on the territory of the partnership. Be sure to take a photo with the date so that the text is visible on the photo and you can identify exactly where the photo was taken.
3. Publish in the local newspaper land plot where legally significant messages are published. Buy and store a newspaper. Keep in mind that such newspapers do not come out every day. So you need to take care of the publication in advance.
4. Publication of notice on the official website of the partnership. The site must be exactly official - i.e. Domain name approved as the domain name of your SNT, by a decision of the general meeting of members. Since in 2018-2019 most SNTs will bring their charters in line with the new 217-FZ, it is advisable to indicate the domain name of the official website in the charter.
In practice, it is better to use several notification methods at once.
Holding a general meeting of members of the SNT.
Registration sheets are required. The task of the board is to have the signatures of all participants in the meeting or their representatives by proxy. It is advisable to take the original power of attorney. The presence of a quorum is confirmed only by these documents and no others. In the case of a court, the list of members can be "revised". In practice, there were cases when the registration sheets contained the signatures of people who were abroad or the deceased ... There were cases when persons whose signatures were artistically depicted on the registration sheets indicated that the signatures were not theirs, they were not at the meeting, they did not have a power of attorney they gave ... Therefore, it is not worth going to this kind of tricks.
A meeting in absentia can be held only for those partnerships, the possibility and procedure of which is prescribed in the charter. But, in absentia, it is impossible to make decisions on important SNT issues: the amount of contributions, the election of the board, etc.
In-person voting (as a form of holding a general meeting) will become possible by law only from 2019. The procedure for convening and holding a general meeting of members of the SNT in person and in absentia must be spelled out in the charter of the SNT!
The Chairman of the Board of SNT is not necessarily the chairman of the meeting. And the secretary of the meeting does not have to be the one who usually does this ... The chairman and secretary are elected by the decision of the general meeting, by a simple majority of votes. Another question is whether the one who was elected will have something to say if, according to the meaning of the agenda, the speaker should be the chairman of the board.
Anything can be discussed at the general meeting, but decisions can only be made on those issues that were indicated on the agenda. Changing the agenda during the general meeting of members of the SNT is allowed only if all 100% of the members are present. And this does not happen in SNT ...
As for the requirement to familiarize with the draft documents for approval (charter, estimate, regulation on the audit commission) ...
According to the current legislation and humanly, of course, it is worth familiarizing yourself with the draft documents. But "non-familiarization" with the draft documents for approval in advance will not entail legal negative aspects. This is not a reason to cancel the decision of the general meeting of members! The only unpleasant thing that can happen is that everyone unanimously votes “against”, simply because they don’t know what they are talking about ...
But from 2019, the SNT documents subject to consideration at the general meeting will need to be familiarized no later than 7 days before the meeting. If the estimate can be placed on the information board, then you can familiarize yourself with the Charter only using the official website. We do not forget that the task of the Board is not only to really acquaint everyone, but also to secure legally: if the publication is in a newspaper, buy the newspaper; adding information did not "update" the publication date.
What to demand in court?
Depending on the grounds for which it is planned to “cancel” the decisions of the general meeting, the decisions may be declared invalid or void.
The decision of the SNT meeting may be declared invalid by the court if:
1. A material violation of the procedure for convening, preparing and holding a meeting has been committed, affecting the will of the participants in the meeting
2. The person speaking on behalf of the meeting participant did not have the authority
3. There was a violation of the equality of rights of participants in the meeting during its conduct
ATTENTION! The decision of the meeting cannot be recognized by the court as invalid on the grounds related to the violation of the decision-making procedure, if it is confirmed by the decision of the subsequent meeting, adopted in in due course before the decision of the court.
The person contesting the decision of the meeting must notify the writing in advance of the participants of the relevant civil law community about the intention to file such a claim with the court and provide them with other information relevant to the case.
The decision of the meeting is void if:
1. Adopted on an issue not included in the agenda, unless the meeting was attended by all members of the relevant civil law community;
2. Adopted in the absence of the required quorum;
3. Adopted on an issue not related to the competence of the meeting.
4. Contradicts the foundations of law and order or morality.
The most important thing is to strike a balance between private and general interests. Before canceling the decision of the general meeting, think about the consequences of this action for gardeners and the village as a whole.
By canceling the decision of the general meeting of members, there is a chance to cancel someone's membership. By losing membership, the owner loses the right to vote, elect and be elected.
Publication date: 07/01/2015
Members of a horticultural, horticultural or dacha non-profit association have the right to appeal to the court the decision of the general meeting of its members (meeting of authorized persons), which violates the rights and legitimate interests of a member of such an association (paragraph 12, clause 2, article 21 of the Law of April 15, 1998 N 66-FZ ).
At the same time, a member of the SNT who did not take part in the meeting or voted against the adoption of the contested decision has the right in any case, if statutory grounds to appeal the decision of the general meeting of members of the SNT.
A member of the SNT who voted for the adoption of a decision or abstained from voting has the right to challenge the decision of the meeting in court in cases where his expression of will during voting was violated (clause 3 of article 181.4 of the Civil Code of the Russian Federation).
Note!
The decision of the meeting cannot be declared invalid by the court if the vote of the person whose rights are affected by the disputed decision could not affect its adoption and the decision of the meeting does not entail significant adverse consequences for this person (clause 4 of article 181.4 of the Civil Code of the Russian Federation).
Grounds for declaring the general meeting of SNT invalid
The decision of the general meeting of members of the SNT is invalid by virtue of its recognition as such by the court (disputable decision) or regardless of such recognition (void decision) (clause 1 of article 181.3 of the Civil Code of the Russian Federation).
The decision of the general meeting of members of the SNT is void if it (Article 181.5 of the Civil Code of the Russian Federation):
- adopted on an issue not included in the agenda, except for the case when all members of the SNT took part in the meeting;
- accepted in the absence of the required quorum.
Note. The general meeting of members of the SNT is competent if more than 50 percent of the members of such an association are present at the said meeting (paragraph 7, clause 2, article 21 of Law N 66-FZ);
Adopted on an issue not related to the competence of the meeting.
Note. The competence of the general meeting of members of the SNT is provided for by the charter of the company (paragraph 10, clause 4, article 16 of Law N 66-FZ);
Contradicts the foundations of law and order or morality.
The decision of the general meeting of members of the SNT is voidable and may be declared invalid by the court if (clause 1 of article 181.4 of the Civil Code of the Russian Federation):
- there has been a significant violation of the procedure for convening, preparing and holding a meeting, which affects the will of the participants in the meeting;
- the person speaking on behalf of the meeting participant did not have the authority;
- violation of the equality of rights of participants in the meeting during its conduct;
- there was a significant violation of the rules for drawing up the protocol, including the rule on the written form of the protocol (clause 3, article 181.2 of the Civil Code of the Russian Federation).
The procedure for declaring the general meeting of SNT invalid
The decision of the meeting may be challenged in court within six months from the day when the person whose rights were violated by the adoption of the decision knew or should have known about it, but not later than within two years from the day when information about the decision made became publicly available to the public. SNT participants (clause 5, article 181.4 of the Civil Code of the Russian Federation).
In order to invalidate the decision of the general meeting of SNT members, we recommend that you adhere to the following algorithm.
Step 1. Get the minutes of the general meeting of SNT members, the decision of which you plan to challenge.
The minutes of the general meeting of members of the SNT are signed by the chairman and secretary of such a meeting, certified by the seal of the SNT and kept permanently in its files.
A copy of the minutes of the general meeting of members of the SNT is submitted for familiarization to the members of such an association at their request (clauses 1, 3, article 27 of Law N 66-FZ).
Step 2. Notify other SNT members of your intention to file a lawsuit in court to challenge the decision of the general meeting of SNT members.
Notification shall be made in writing and in advance. In addition, SNT members must provide other information relevant to the case (clause 6, article 181.4 of the Civil Code of the Russian Federation).
Note. Members of the SNT who have not joined such a claim, including those who have other grounds for challenging this decision, subsequently have no right to apply to the court with demands to challenge the decision, unless the court recognizes the reasons for this appeal as valid (clause 6 of article 181.4 of the Civil Code RF).
Step 3. Prepare and submit to the court a statement of claim to invalidate the decision of the general meeting of SNT and the documents attached to it.
The statement of claim must indicate the name of the defendant - SNT and its location, what is the violation or threat of violation of the rights of the SNT member in connection with the adoption of the contested decision, the claimant's claims, as well as the circumstances and evidence on which they are based.
Pay the state duty in the amount of 300 rubles. (clause 3, clause 1, article 333.19 of the Tax Code of the Russian Federation).
The statement of claim must be accompanied, among other things, by the following documents (Article 132 of the Code of Civil Procedure of the Russian Federation):
- copy statement of claim in accordance with the number of defendants and third parties;
- a document confirming the payment of the state duty;
- a power of attorney or other document certifying the authority of the plaintiff's representative;
- documents confirming the circumstances on which you base your claims, copies of these documents for the defendants and third parties, if they do not have copies;
- a certified copy of the contested decision of the general meeting of members of the SNT.
The claim is brought at the location of the SNT (Article 28 of the Code of Civil Procedure of the Russian Federation).
Note!
To resolve a litigation, you may need a qualified legal assistance, the cost of which, depending on the complexity of the case, the amount of the claim and other factors, may be significant. If your interests are represented in court, you will need to prepare a notarized power of attorney for a representative (Articles 185, 185.1 of the Civil Code of the Russian Federation; Part 2 of Article 53 of the Code of Civil Procedure of the Russian Federation).
Step 4. Take part in the court session and receive a court decision that has entered into force.
The decision of the court shall enter into force upon the expiration of the period for appeal, if it has not been appealed. The term for filing an appeal is one month from the date of the final decision of the court (part 1 of article 209, part 2 of article 321 of the Code of Civil Procedure of the Russian Federation).
Reference. Determination of the final form of the court decision
The adoption of a court decision in the final form provides for the preparation of the introductory, descriptive, motivational and resolutive parts of the decision (part 1 of article 198 of the Code of Civil Procedure of the Russian Federation).
The operative part of the decision is announced by the court in the same court session in which the trial of the case ended (part 1 of article 199 of the Code of Civil Procedure of the Russian Federation).
The drawing up of a reasoned court decision may be postponed for a period not exceeding five days from the date of completion of the proceedings. At the same time, the reasoning part of the court decision must indicate: the circumstances of the case established by the court; the evidence on which the court's conclusions about these circumstances are based; arguments on which the court rejects certain evidence; the laws that guided the court (part 4 of article 198, part 2 of article 199 of the Code of Civil Procedure of the Russian Federation).
If an appeal is filed, the decision shall enter into force after consideration of the complaint by the court, unless the appealed decision has been cancelled. If the decision of the court of first instance was canceled or changed and a new decision was made, it enters into force immediately (part 1 of article 209 of the Code of Civil Procedure of the Russian Federation).
Citizens often turn to the prosecutor's office of the Kursk region on the legality of the actions of the governing bodies of horticultural associations and decisions taken at general meetings of members (meetings of authorized persons) of the SNT. In this regard, it became necessary to clarify a number of issues.
Legislation on horticultural associations establishes the right of each member of the SNT to apply to the court to invalidate the decisions of the general meeting of members (meeting of authorized persons) of the SNT, as well as decisions of the board and other bodies of the partnership that violate its rights and legitimate interests (Articles 19, 21 of the Federal Law of 15.04.1998 No. 66- Federal Law "On horticultural, horticultural and dacha non-profit associations of citizens" - hereinafter referred to as the Law). The Supreme Court of the Russian Federation (Resolution of the Supreme Court of the Russian Federation of June 23, 2015 No. 25) clarified that a participant who did not take part in the meeting or voted against the contested decision has the right to challenge the decision of the meeting in court. The basis for applying to the court may be a violation of the legitimate interests of both the participant himself and the entire partnership, which may lead to losses, deprivation of the right to receive benefits from the use of property, restriction or deprivation of the participant of the opportunity in the future to take management decisions or exercise control over the activities of the civil law community.
At the same time, it should be taken into account that, in accordance with the general norms of the Civil Code of the Russian Federation, the decision of the meeting can be challenged in court within 6 months from the date when the person whose rights were violated by the adoption of the decision found out or should have found out about it, but no later than in within 2 years from the date when information about the decision made became publicly available to participants in the relevant civil law community (Article 181.3 of the Civil Code of the Russian Federation). As evidenced by arbitrage practice, missing the deadline for appeal is one of the most common grounds for refusing to satisfy the applications of members of the SNT.
The Law on Horticultural Associations establishes that the decisions of the general meeting of members of the SNT (meeting of authorized persons) are brought to the attention of its members within 7 days after the date of adoption of these decisions in the manner prescribed by the charter of such an association (Article 21 of the Law). The Supreme Court of the Russian Federation clarified that, taking into account the specific circumstances of the case, the placement of information about the decision of the meeting on the bulletin board, in the media can be recognized as publicly available. mass media, the Internet, if such methods of placement are the established practice of communicating information in the partnership. It should be noted that in the case of going to court, the plaintiff will have to prove that the decision was not available for review.
As the practice of prosecutorial supervision shows, in most SNTs, many decisions of the meeting, for example, on turning off electricity at winter period, are accepted at the beginning of the summer season (February-April), and their actual implementation is carried out in October, and therefore, at the time of the power outage, the period for appealing against such a decision had already expired.
Thus, in order to effectively protect their rights, members of the SNT should take an active part in the activities of the partnership and timely apply for the protection of their rights to the judicial authorities.
Vasily Loktionov,
assistant prosecutor of the Kursk region