On July 1, amendments to the Town Planning Code came into force, which change legal regulation activities of the technical customer. According to, these innovations also apply to developers who independently (without a technical customer) hire surveyors, designers and contractors.
Until the designated date, organizations performing the function of a technical customer required membership only in a construction SRO with a certificate of admission to types of construction control work, recalls the ERZ information service. From July 1, in accordance with paragraph 22 of Article 1 Urban Planning Code, the technical customer must be a member of the survey SRO if he interacts with the survey organization on behalf of the developer, as well as a member of the design SRO if he interacts with the design organization, and a construction SRO if he interacts with the contractor.
The Ministry of Construction of Russia believes that "when the developer performs the functions of a technical customer on his own, the developer requires membership in a self-regulatory organization of the appropriate type." That is, according to ministerial officials, the developer in this case should be a member of three SROs at once - survey, design and construction.
The director of the Institute for the Development of the Construction Industry does not agree with this interpretation of the law. , and concurrently - the head of the apparatus National Association housing developers (NOHA) Kirill Holopik.
“Court practice shows that in terms of the emergence of certain obligations for entrepreneurs, the court, as a rule, is guided by a literal interpretation of the law. The method of interpretation based on the totality of norms used in the clarification of the Ministry of Construction of Russia is not applicable in this case, - ERP quotes Kholopik. - The law contains a requirement that the technical customer must be a member of the SRO. The rule that the developer "has the right to transfer its functions provided for by the legislation on urban construction activities, technical customer”, does not mean that if such functions are not transferred to a technical customer, the developer himself becomes a technical customer in cooperation with contractors.
The analogy with lawyers works well here. In order to defend himself in court, a citizen can hire a professional lawyer, but he can also act without a representative. If a citizen carries out his own defense in court, then this does not mean that he is required to join the chamber of lawyers. I think that the Ministry of Justice of Russia will never give an explanation from which, based on the totality of norms, a conclusion will be drawn about the need for membership in the Chamber of Lawyers of all those who defend themselves on their own.”
The term "customer-builder" came into the construction lexicon from the Soviet Union. Amendments to the Civil Code of the Russian Federation, approved by Federal Law No. 240-FZ of July 27, 2010, abolished the term "customer-developer" and specified the requirements of the law for the need to obtain the SRO of the customer. Instead of the obsolete term, the concept of "Person carrying out the construction, reconstruction, overhaul of an object" is introduced. capital construction". And now it is not only a developer or customer, but also all individuals and legal entities that are involved in the construction procedure on the basis of a contract. Since the listed persons are responsible for the quality of work and their compliance project documentation, they are required to join the SRO. The rule is valid only when the contractor performs work that affects the safety of the capital construction facility.
Consider an example in which three parties are responsible for poor performance of the terms of the contract to a higher organization.
These parties are:
In this example, the general contractor requires a certificate of membership in the SRO for general contracting. The contractor or subcontractor is also required to enter into a relevant partnership. But is membership in the SRO necessary for a technical customer or developer?
The main question that interests everyone one way or another involved in construction is whether a technical customer needs membership in an SRO? The obligation of the customer to enter into a non-profit partnership is not regulated by any law. Nevertheless, the technical customer is a kind of top management of the construction site. He organizes the work construction sites, conducts financial control and audit, coordinates the work of all entities that take part in the process.
Thus, we can draw the following conclusion: the customer should issue a certificate of membership of the SRO. Otherwise, he will not be able to perform the function of a construction quality supervisor at the facility.
The situation is rather absurd, but quite real. The customer may not be in the SRO, but this will not prevent him from signing a contract with the general contractor, who is a participant non-profit partnership. Nevertheless, the technical customer will not succeed in fulfilling his functions - he will have to shift control and supervision onto the shoulders of the company.
Thus, it turns out that the technical customer must join the SRO, for a legitimate way to carry out activities. Otherwise, problems may arise with incompetent employees of a third-party company.
The procedure for the entry of a technical customer in construction into an SRO can cause a large number of questions, in particular, about the amount of documentation and the specialization of employees. For all these questions, you can get professional advice from the NCL.
Other materials of the section SRO
Question
Does the customer-investor need to have access to the SRO?
Answer
Since July 1, 2017, admissions to the SRO have been cancelled. To confirm the right to perform certain types construction works from July 1, it is enough to receive an extract from the register of members of the construction SRO.
The provisions of the Civil Code of the Russian Federation do not establish the obligation of the developer (customer) to be a member of the SRO, if such a developer (customer) does not carry out construction, reconstruction, overhaul of capital construction objects independently.
Rationale
In this regard, the Letter of the Ministry of Construction of Russia dated August 17, 2016 N 26526-OS / 02 (answer to question 2) states that from July 1, 2017, certificates of admission to a certain type or types of work are terminated.
In this regard, Letter N 26526-OS / 02 (answer to question N 2) states that from July 1, 2017, certificates of admission to a certain type or types of work will cease to be valid.
The only document confirming the membership of a legal entity or an individual entrepreneur in a self-regulatory organization in the field of construction, from 07/01/2017, will be an extract from the register of members of a self-regulatory organization.
2. As established by Part 2 of Art. 47 "Urban Planning Code Russian Federation"of December 29, 2004 N 190-FZ (as amended on July 29, 2017) (as amended and supplemented, effective from September 30, 2017) work under contracts for the performance engineering surveys, or by a person who, in accordance with the Land Code of the Russian Federation, has received permission to use land or land plot, which is in state or municipal ownership, for the performance of engineering surveys, should be carried out only by individual entrepreneurs or legal entities that are members of self-regulatory organizations in the field of engineering surveys, unless otherwise provided by this article. The performance of engineering surveys under such contracts is provided by specialists in the organization of engineering surveys (chief project engineers). Work under contracts for the performance of engineering surveys concluded with other persons may be performed by individual entrepreneurs or legal entities that are not members of such self-regulatory organizations.
In accordance with Part 4 of Art. 48 of the Contract Code on the preparation of project documentation, concluded with the developer, technical customer, the person responsible for the operation of the building, structure, the regional operator (hereinafter also referred to as contract agreements for the preparation of project documentation), should be carried out only by individual entrepreneurs or legal entities that are members of self-regulatory organizations in the field of architectural and construction design, unless otherwise provided by this articles. The execution of works on the preparation of project documentation under such contracts is provided by specialists in the organization of architectural and construction design (chief project engineers, chief architects of projects). Work under contracts for the preparation of project documentation concluded with other persons may be performed by individual entrepreneurs or legal entities that are not members of such self-regulatory organizations.
In part 2 of Art. 52 of the Civil Code of the Russian Federation provides for the same requirement for the performance of work under contracts for construction, reconstruction, overhaul capital construction projects.
Wherein, Part 2.1 of Article 47, Part 4.1 of Article 48, Part 2.2 of Article 52 of the Code define the circle of persons and the conditions under which membership in a self-regulatory organization when performing work under the relevant contracts from July 1, 2017 is not required.
In accordance with paragraph 3.1 of Article 52 of the Town Planning Code of the Russian Federation (hereinafter referred to as the CRC of the Russian Federation) the builder has the right to build, reconstruction, overhaul of capital construction facilities independently, provided that he is a member of a self-regulatory organization in the field of construction, reconstruction, overhaul of capital construction facilities, unless otherwise provided by Article 52 of the Civil Code of the Russian Federation, or with the involvement of other persons under a construction contract.
Based on the provisions of the above norms, it follows that membership in the SRO is required for persons who directly carry out work on engineering surveys, preparation of project documentation, construction, reconstruction, overhaul of capital construction projects.
Also, in the Letter of the Ministry of Finance of Russia dated 05.10.2017 N 24-02-06 / 65169, it is explained that the provisions of the Civil Code of the Russian Federation the obligation of the developer (customer) to be a member of the SRO is not established, if such a developer (customer) does not construction, reconstruction, overhaul of capital construction projects.
If the customer (investor) plans to carry out these works independently without the involvement of specialized organizations, membership in the SRO is necessary.
The developer organization carries out the construction of a residential building on the basis of an investment contract and has a building permit issued in its name. Construction is carried out by a hired general contractor.
Should the developer be a member of the SRO?
After considering the issue, we came to the following conclusion:
When construction is carried out by a general contractor engaged by the developer on the basis of a general contractor agreement, the developer does not need to obtain a certificate of admission to the types of work that affect the safety of capital construction projects. Therefore, the developer is not required to join the SRO.
Rationale for the conclusion:
In accordance with Part 2 of Art. 52 of the Town Planning Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation), types of work on the construction, reconstruction, overhaul of capital construction facilities that affect the safety of capital construction facilities should be carried out only by individual entrepreneurs or legal entities that have certificates of admission to such types of work. Other types of construction, reconstruction, overhaul of capital construction projects can be performed by any individuals or legal entities.
The person carrying out the construction, reconstruction, overhaul of the capital construction object (hereinafter referred to as the person carrying out the construction) may be the developer or an individual or legal entity attracted by the developer or technical customer on the basis of an agreement. The person carrying out the construction organizes and coordinates the work on the construction, reconstruction, overhaul of the capital construction facility, ensures compliance with the requirements of project documentation, technical regulations, safety precautions in the process of these works and is responsible for the quality of the work performed and their compliance with the requirements of the project documentation. Such a person has the right to perform certain types of work on the construction, reconstruction, overhaul of a capital construction object on his own if he has a certificate of admission to such types of work issued by the SRO, and (or) with the involvement of other persons who have such a certificate (part 3 of article 52 GRK RF).
Based on Part 4 of Art. 55.8 of the Civil Code of the Russian Federation, a specific list of types of work on engineering surveys, on the preparation of design documentation, on construction, reconstruction, overhaul of capital construction projects that affect the safety of capital construction facilities, approved by order of the Ministry of Regional Development of Russia dated December 30, 2009 N 624 (hereinafter - the List ).
According to paragraph 33 of section III of the List, a certificate of admission is required for the implementation of work on the organization of construction, reconstruction and overhaul by the involved developer or customer on the basis of a contract legal entity or individual entrepreneur(general contractor).
From a literal reading of paragraph 33 of Section III of the List, it can be concluded that a certificate of admission is required to carry out work on the organization of construction, reconstruction and overhaul of the facilities mentioned in paragraph 33 of the objects, by the general contractor involved by the developer under the contract.
The activities of the developer are not included in the List. Thus, a developer who does not independently carry out work on the construction, reconstruction, overhaul of a capital construction object, but attracts general contractor, you do not need to obtain a certificate of admission. In this connection, the developer is not required to join the SRO.
Prepared answer:
Legal Consulting Service Expert GARANT
Korobeinikov Evgeniy
