Is it necessary to issue a self-regulatory permit in the name of the developer or customer of construction, survey or design work? This question(as well as “How is it carried out LLC registration ?) today is one of the most frequently asked questions to employees of the Company Registration company. This is primarily due to the high pace of legislation updating, in which businessmen often do not have time to track regulatory changes. In addition, to understand every innovation introduced in areas such as SRO , LLC registration, some legal knowledge is required, and sometimes relevant experience.
In this regard, employees of the company “Registration of Companies” tel. 89210221849, working in tandem with reliable self-regulatory organizations in Veliky Novgorod, we have prepared some tips for you on the topic: do you need a permit? to the developer or customer of the work, if he engages a general contractor in the work.”
For example, three parties are involved in construction, each of which is directly responsible (for poor performance of the terms of the contract) to a higher organization:
- Customer (developer)
- General contractor.
- Contractor/subcontractor.
In this case, the general contractor must have permission sro for general contracting (that is, for organizing work) in accordance with Order 624 of the Ministry of Regional Development. The subcontractor will require permits for all self-regulated work that it will perform.
What kind of SRO approval does the customer need?
The customer, who is actually the developer, should obtain a permit SRO for a group of works on control and supervision of the work, its quality and timing. After all, it is the developer who has the right to check the use of construction materials on the site high quality without affecting the activities of the contractor in any way.
Let's say the customer does not have membership in a construction company SRO , and signs an agreement with the general contractor, who has permission to organize construction. In this case, the customer has the right to entrust the general contractor with the implementation of the work. Nevertheless, the customer will still have to carry out construction control. And then he has a choice:
- obtain admission to a self-regulatory organization;
- sign an agreement on monitoring and supervision of the construction site with a company that has this permit.
Find out in more detail how certificates are issued in any SRO, LLC registration You can contact the experienced specialists of the Company Registration company.
Obtaining SRO approval for the customer-developer causes large number disputes and disagreements. The question is complicated by the coming changes that will change existing system self-regulatory organizations. In this regard, the need for the customer-developer to join an SRO can be considered on two levels - the current situation and changes that will come into force after July 1, 2017.
Previously existing options for organizing activities
Often the developer engages a general contractor and does not independently participate in the implementation of the project. construction work on site. The list of activities that require permission from a self-regulatory organization is specified in Order No. 624 of the Ministry of Regional Development. If the work performed is not included in the presented list, it can be carried out without permission.
However, if according to clause 3 of Art. 706 of the Civil Code of the Russian Federation, the customer-developer exercises independent control over the work on the construction site, its quality, as well as compliance with deadlines; he must be a member of a self-regulatory organization.
The responsibility for carrying out construction control cannot be delegated to the general contractor. However, the developer can enter into an agreement with the “construction controller”, according to which he is entrusted with the specified functions. This situation allows the developer not to enter into self-regulatory organizations. In all other cases, SRO approval is required.
An important aspect is to understand the fundamental difference between the technical customer and the customer-developer. The functions and responsibilities of each are different. The developer is the owner of the land plot and financial resources.
The definition of the concept of technical customer is presented in the Civil Code of the Russian Federation. This is a high-level professional performer who is entrusted with the authority to conclude construction contracts, overhaul or on-site reconstruction. The technical customer also organizes work at construction sites and carries out financial control on behalf of the developer. At the same time, the developer has the right to perform the functions of a technical customer on his own, without involving third parties.
In fact, the term “customer-developer” combines the functions of a technical customer, developer and controller. In this case, joining an SRO for a technical customer is necessary measure to fulfill their key functions on site.
Responsibilities and functions of the customer
Thanks to joining the SRO, the customer’s functions are expanded and, in addition to disposing of material resources, he has the right to perform a number of other operations. Among them:
- Drawing up and further approval project documentation and estimates.
- Signing contract and general contract agreements.
- Accounting.
- Monitoring the progress of survey work, including soil, water and air studies.
- Supervision of work on the construction site, including technical and designer supervision.
- Preparation of documentation and carrying out work on commissioning of the finished facility.
Legislative changes
On July 1, 2017, Law No. 372 came into force, according to which the functions of a technical customer can only be performed by members of self-regulatory organizations. At the same time, they must meet all the requirements for SRO members in terms of staff, availability of construction equipment and experience in the field of work performed. A technical customer can obtain SRO approval after paying the entrance fees. Financial costs are formed from several components, including payments to the compensation fund, monthly contributions and insurance.
Joining an SRO for a technical customer provides the following advantages:
- Interaction with other members of the association, assistance in resolving controversial issues.
- Adjustment of documents in accordance with the emergence of new technologies.
- Protection and representation of each participant on an equal basis.
- Internal conferences and meetings.
Thus, by taking effect new edition The law eliminates the possibility of dual interpretation of legislative norms and clearly regulates the requirement - SRO approval for the technical customer.
However, the law also provides for situations in which the technical customer should not gain access to the SRO when organizing work. For state enterprises or commercial organizations with a share of state-owned enterprises exceeding 50%, SRO approval is not required if the contractor is an executive authority or state corporation. Also, admission is not required for legal entities created by public legal entities to conduct activities in established areas.
Thus, from July 1, 2017, the developer can only hire a technical contractor who has paid all the necessary compensation fees and joined a self-regulatory organization.
Development companies, construction organizations And individual entrepreneurs in the construction industry are required to join an SRO if their work affects the load-bearing structures of buildings. They must unite in non-profit organization and submit an application. After this, they will receive permission to perform a certain type of work. The article on the site will help you better understand the features of the customer’s SRO. An introduction to the topic of self-regulatory organizations can be found in the article - What is an SRO?
But does the customer need an SRO? If the list of work they perform is not related to ensuring the strength of buildings, this is not mandatory for them. But they can voluntarily unite in an SRO. The registration process is quite complicated, requires large financial costs and some time.
When merging into an SRO, the enterprise must have experience in the construction industry, and the staff must include highly qualified employees and the appropriate level of education. In addition, the company must have everything necessary equipment, premises, and besides this, free cash to pay all dues. The cost of joining a customer’s SRO is formed from several items:
- 1,000 rubles - down payment;
- 300 thousand rubles - contribution to the compensation fund (the amount can be many times higher, in cases provided for in the contract);
- 3,500 rubles - monthly fee;
- 5,000 is the annual insurance premium.
To simplify things, companies are offered the opportunity to obtain a seasonal SRO permit, which is issued for only one season. And its cost is much lower, since no payment is required to the compensation fund, which has a significant impact on the price. This opportunity is often used by newcomers in the construction field, but large companies do not disdain it to reduce their costs. After the expiration of the permit, the company can submit an application to the SRO for full membership, for this it will only need to pay the amount of the compensation fund.
When answering the question whether the customer needs an SRO, it can be noted that if his activities are not related to the strength of structures and do not affect them, their entry into the SRO is not required by law. They can join it only on a voluntary basis or taking into account future development if the company's budget allows.
To figure out whether to join an SRO, it is better to familiarize yourself with the benefits that its members receive. So, what does SRO give to the customer:
- protecting the interests of participating companies;
- representing their interests before government agencies and other market participants;
- the opportunity to interact with other SRO participants and provide mutual support;
- quality control of work through the development of standards and regulations;
- keeping up to date regulatory framework through timely changes to standards and regulations;
- informing participants about various innovations through organizing conferences and thematic symposiums;
- increasing the level of qualifications of employees.
For small businesses joining an SRO makes it possible to compete in the market on an equal basis with major players. In the SRO, the functions of the customer are determined according to its main purpose, which is expressed in its implementation of construction work:
- conclusion of a general construction contract;
- registration of a contract for individual species works;
- organization of the construction site;
- construction supervision;
- transfer of the facility into operation.
If the customer does not violate the rules and regulations prescribed by the SRO and complies with standards when working, he gets the opportunity to expand his activities. If any controversial situations, SRO undertakes to protect the rights of its members and pays a penalty from the amount general fund, since all risks are divided between the members of the SRO.
You can read about the intricacies of purchasing an SRO permit in our article - Buy an SRO permit in installments.
SRO of the Customer-Developer
The functions of the SRO of the developer's customer lie in the field of provision and organization of construction work. When performing them, its activities proceed through the following stages:
- architectural design;
- engineering surveys;
- obtaining permits for construction work;
- preparing the site for construction;
- conclusion of a construction contract.
Read more in our articles SRO for builders - construction permit and SRO for construction, general contractor.
The technical customer is a kind of customer-developer, since the entire construction process from beginning to end is in his field of influence, and he performs functions characteristic of both categories. In an SRO, the technical customer is responsible for technical specifications and construction parameters, and the customer-developer bears financial responsibility.
The technical customer performs the following types of work:
- selection of construction sites;
- registration of documents for the transfer of ownership, transfer of land holdings to the desired category;
- formation of a package of permits for construction;
- conducting an examination of the work of communications;
- obtaining permits for connecting gas supply, water supply, electricity supply, sewerage;
- development of a work project and drawing up an estimate;
- holding a tender to select a general contractor;
- organization and control of the construction of the facility;
- Preparation executive documentation;
- interaction with control authorities;
- commissioning.
Of course, construction control of the SRO customer is a key stage in the construction work, therefore, when selecting personnel, it should be taken into account that the staff includes a qualified architect, designer, electrical and ventilation systems, surveyor, estimator, designer.
Both the developer and the customer have the right to control the construction process, and it takes place in the following areas:
- compliance with the project;
- compliance with regulations;
- compliance with the standards of the Civil Code of the Russian Federation;
- inspection of building materials;
- work accounting.
To do this, you will need to obtain permission to carry out control, after receiving which the developer-customer has the right to issue a conclusion on the compliance of the work.
Without SRO approval
What happens if you work without the permission of the SRO of the Customer-Developer.
Urban planning standards are constantly changing, which creates a number of difficulties in their application. Questions remain debatable whether the technical customer and the developer should have SRO approval, and in what cases it is not required. Practice shows that its absence often entails penalties under Art. 9.5.1 Code of Administrative Offences.
Does a technical customer need to join an SRO?
This legal organization, interacting with the general contractor on behalf of the developer. Despite the fact that those the customer does not directly carry out construction work; the law contains direct instructions obliging him to be a member of a self-regulatory organization.
Does the construction customer (customer-developer) need SRO approval?
IN practical activities At least several situations arise when the construction organizer requires permission to carry out certain types of work.
- According to the Civil Code (Article 48), project documentation (PD) can be developed independently by the developer, or with the involvement of a third party under an agreement with him or with the technical customer. Until July 1, 2017, the organization preparing the PD must have had permission to carry out the work provided for by Order No. 624. After this date, only developers who are members of the SRO in the field of architectural and construction design have the right to develop PD, and in relation to any objects .
- All types of work included in the list of those affecting the safety of the OKS can be performed only with permission. In fact, they are produced by the general contractor, and, based on the literal interpretation of the law, it is he who must be held accountable for its violation under Art. 9.5.1 Code of Administrative Offences. However, if the construction customer independently enters into contracts with construction contractors, he must have permission to perform the functions of a general contractor.
- The function of construction control is assigned to the entity carrying out construction. Based on the contract, this responsibility can be transferred to third parties. There is a widespread opinion that the developer is not obliged to join an SRO, since clause 32 of List No. 624 includes an indication only of the organizations he attracts for this purpose. There are no clarifications on this issue in the GRK.
Judicial practice shows that an organization that independently carries out construction control without permit document penalties are imposed. There are several definitions of the BAC on this issue, where the position is defined as follows. The absence of an indication of the developer in paragraph 32 does not deprive him of the right to conduct construction control, and, therefore, does not exempt him from the need to join an SRO.
The amendments that came into force in 2017 significantly changed the range of companies that have the right to carry out work in the field of capital construction and the boundaries of their responsibility. Both developers who carry out certain types of work independently and carry out construction control, as well as technical customers, are required to comply with the norms of the Urban Planning Code.
In connection with changes in legislation in the field of licensing legal entities and private entrepreneurs, the question often arises of when a developer needs an SRO. Since he is obliged to exercise construction control, which is stipulated in Art. 53 GRK of Russia, he has the opportunity to entrust this task to a specialized company. The provisions of Article 55.8 of the same code inform that only those individual entrepreneurs and firms that have a permit have the right to carry out manipulations that affect the safety of capital construction projects. However, the obligation to obtain a certificate is regularly challenged, including in the courts, since the legislation does not provide an unambiguous interpretation. Two completely different points of view have a right to exist due to the imperfection of government regulations and laws.
What is a developer and does he need permission?
In the construction field, many functions are delegated, however general order and understanding helps to adhere to the Civil Code. According to this document, the developer is an individual or legal entity that provides construction, major repairs, and reconstruction on its territory. To carry out personal full control over what is happening on the construction site, he must have the appropriate permission. He must monitor:
progress of performed tasks;
compliance with specified deadlines;
use of quality materials;
compliance with construction technologies.
Most experts are inclined to believe that the developer must have permission. If the company is not part of a non-profit self-regulatory organization, it can entrust the general contractor with all types of work, except for construction supervision. It is precisely because of this feature that it is highly recommended to have a permit. The issue can be resolved in two ways: obtain a certificate from a self-regulatory organization or enter into an agreement for the implementation of construction supervision with a third party who has the appropriate permit for precisely these types of work.
Does a developer need to be a member of a self-regulatory organization?
If for some reason self employed or a legal entity does not want or cannot become a member of the association, then this issue can be resolved in a different way. A thorough analysis of the Civil Code and Civil Code of the Russian Federation reveals the possibility of concluding an agreement with another company that has received permission to perform the functions of a customer-developer.
How rational and beneficial this is depends on each case considered. All situations are individual, so the expert needs to delve into your specific conditions and draw a conclusion based on in-depth analysis.
If the customer plans to control the construction process with his personal resources, then he needs permission in any case. When attracting a third party on the basis of a formal contract, he needs to join the organization to perform the functions of a customer-developer.
The next situation is the involvement of specialists for construction, major repairs, reconstruction under a general contract concluded in compliance with all rules. In this case, permission to general contracting is required for the performing company.
If the customer’s future plans include independently engaging contractors to professionally carry out special work, then the conditions will change somewhat. Here, it is mandatory that officially active builders must have permission for general contracting. This is an indisputable condition for ensuring legal activities in organizing the construction process.
It is also important that hiring a general contractor without a certificate from a self-regulatory organization of builders entails administrative liability. The amount of the fine is specified in the Code of Administrative Offences. In this regard, it is necessary not only to independently obtain a certificate, but also to carefully check the documentation of private entrepreneurs and companies involved in construction.
If there are violations in the form of lack of tolerances, the transaction is often canceled. Legal entity, which entered into an agreement without the appropriate permission, is liquidated. The funds transferred under the transaction are returned to each party.
If it is difficult to sort out the documents on your own, then Rigby employees will explain everything in detail: in what cases access is required, and in what cases it is permissible to work without it, and when this entails administrative liability. Clients are accepted by appointment; we are ready to receive you at the company’s office throughout the working week.
Should the developer join an SRO?
It is widely believed that a builder is not required to have a certificate of access to work. This conclusion is based on the specifics of the List of types of work that affect the safety of facilities.
However, there is a completely different point of view, substantiated in Article 9.5.1 of the Code of Administrative Offences. It informs about the responsibility for performing work without a certificate, if it is mandatory to obtain one.
The developer's responsibilities include a fairly large list of checks. Among them:
maintaining the reliability of documenting incoming inspection data;
intermediate acceptance of structures;
compliance of the completed construction with design documentation and working papers.
The developer must have permission if he does not resort to constant legal support. The problem lies in the dual interpretation of the legislation, therefore, without a strong argument from a lawyer, the court may decide not in favor of the company, which, in principle, did not violate the rules of doing business.
When should you join an SRO?
According to Letter of the Ministry of Regional Development of the Russian Federation No. 40915, obtaining an original certificate of admission is important only for the person who is involved in monitoring the construction process under the contract. It would seem that everything is clear here. However, the State Construction Supervision Service continues to attract companies to financial liability due to lack of access to supervision work.
It can be said with certainty that the laws Russian Federation regulate the following: a company must have permissions if it intends to control all processes on its own, that is, without the involvement of third parties. Other cases need to be dealt with individually, taking into account the decisions of arbitration courts of appeal.
Can a customer-developer join an SRO?
Any person involved in the construction, reconstruction and repair of capital facilities at any time has the opportunity to become a member of a non-profit self-regulatory organization. In addition to compliance state requirements, the certificate allows him to:
communicate promptly with the municipality;
quickly resolve issues with the involvement of specialists;
receive up-to-date information about the tenders on the distribution of orders for capital construction.
Permission for the customer-developer to carry out design, construction, and landscaping work will protect the company from fines and sanctions until legislative framework has not yet acquired clarity and unambiguous interpretation.
It is worth taking into account the nuance that previously the state customer had to join a self-regulatory organization. However, this provision of the law was subsequently removed. However, there remains a possibility that inspection authorities and higher services will require a certificate. Here, only competent legal support will help you defend what is right and prevent the imposition of fines.
Does an investor-developer need an SRO?
The customer is the link between the design firm, the investor, the general contractor and the authorities. The investor, in turn, is not required to obtain any permits if all issues of construction and control fall on the shoulders of the contractor. However, he needs to know whether the performer has the necessary permissions.
Having properly executed papers will allow you to avoid litigation and delays in the delivery of the object.
Often, customers perform part of the construction work on their own. In this case, a certificate is necessary for them. This applies to those works that are included in the list of the classifier approved by the Ministry of Regional Development in Order No. 624.
Obtaining permission for the developer
Rigby specialists help you run your business large companies and budding entrepreneurs. We provide assistance in preparing sets of papers and submitting them to the relevant services and self-regulatory organizations. Thanks to us, you can complete documents in just one business day.
Having examined the application in detail, we will tell you about all the risks of not having access, and will also indicate the need or lack thereof for joining the organization. For the convenience of clients, the company assigns a personal consultant who will subsequently manage the individual entrepreneur or company.
The cost of a permit varies among different organizations, so the exact amount can be determined upon review. optimal options. It is necessary to prepare for monetary costs, including contributions to the compensation fund, as well as entrance and membership fees. You will need insurance, as well as targeted transfers.
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