Capital repair fund terms of deposit in the bank. Housing Code of the Russian Federation: changes have been made regarding major repairs
"Housing and communal services: accounting and taxation", 2010, N 5
PLACEMENT OF TARGET FUNDS OF THE HOA ON DEPOSIT
Today we will look at a common situation from the practice of HOAs: owners of premises in apartment building decided to carry out repairs to common property, which will be financed by creating a special partnership fund; contributions to this fund will be made monthly; At the same time, it was decided to place the collected funds on deposit. How to formalize such decisions in accordance with the law? Can tenants claim interest on the deposit?
The decision to carry out repairs is made by a qualified majority (2/3) of the votes of the owners of premises in an apartment building at a general meeting (clause 1, clause 2, article 44, clause 1, article 46 of the Housing Code of the Russian Federation). Consequently, the obligation to make contributions to a special fund for major repairs also arises for all owners, despite the fact that in accordance with paragraphs. 5 p. 2 art. 145 of the Housing Code of the Russian Federation, the formation of special partnership funds falls within the exclusive competence general meeting HOA members. Let us turn to the issue of placing funds in a deposit account at a bank.
Purpose of funds
In connection with the placement of temporarily free funds intended for major repairs in a bank deposit account, questions arise: whether the intended purpose of these funds is being violated and whether the homeowners association must pay income tax on them on the basis of clause 14 of Art. 250 of the Tax Code of the Russian Federation?
Comprehensive answers to these questions are contained in Letter of the Ministry of Finance of Russia dated August 19, 2009 N 03-03-06/4/68. In accordance with paragraph 2 of Art. 251 of the Tax Code of the Russian Federation when determining tax base income tax does not take into account income in the form of targeted revenues for the maintenance of a non-profit organization and the conduct of its statutory activities. The main condition for the application of this norm is compliance intended purpose funds according to the decision of the general meeting (that is, spending funds only on major repairs). In addition, the partnership should keep separate records of income (expenses) received (incurred) within the framework of target revenues.
When answering the main question (whether the placement of targeted funds on a deposit account in a bank is a violation of their purpose), each specific case should be considered from the point of view of using the funds for their intended purpose. According to the Ministry of Finance, the following circumstances can be used as criteria for classifying activities for placing temporarily free balances of target funds received in the form of target financing in income-generating financial assets as entrepreneurial activity:
1) the presence of expenses aimed at generating income is the main criterion for classifying an activity as entrepreneurial;
2) a non-profit organization must provide documentary justification for decisions made on the placement of temporarily free balances of target funds in income-generating financial assets from the point of view of minimizing the risk of loss (depreciation) of the relevant funds;
3) a non-profit organization must provide a justification for the advisability of incomplete use of target funds in the period in which they were received by it, with the placement of free balances of such funds on deposit accounts in bank institutions in comparison with the strategy of full use of funds in the current period, including the rationale for this that the presence of temporarily free balances of target funds will not lead to a reduction in the scale of activity of a non-profit organization (its termination), and the receipt of income will allow, through the accumulation of funds, to most effectively achieve the statutory goals.
From the foregoing it follows that the law does not prohibit HOAs from placing temporarily vacant cash in a bank deposit account for the purpose of preserving them (but not for the purpose of making a profit!). The corresponding decision can be made either by a general meeting of all owners (most preferably) or by a general meeting of members of the partnership. In the absence of clear legal norms regulating issues related to the placement of funds received from owners on deposit, the decision of the general meeting should fill all the gaps as much as possible.
Management of funds on deposit
The HOA has the amount of powers that the law and the owners have given it. First of all, the activities of the partnership are related to the performance of various duties. One of them may be collecting funds for repairs from the owners and placing them in a specially opened deposit account.
The board of the partnership has the right to dispose of funds in accordance with the financial plan of the HOA (clause 4 of Article 151 of the Housing Code of the Russian Federation), which, in turn, is approved by the general meeting of members of the HOA (clause 8 of clause 2 of Article 145 of the Housing Code of the Russian Federation).
It seems that the decision about when funds can be spent on major repairs should be made along with decisions about carrying out major repairs and placing funds on deposit in the bank. Most likely, this period will be tied to a certain amount of funds intended for repairs. Of course, these amounts cannot be spent on purposes other than major repairs.
Thus, the last word in deciding on the expenditure of funds for major repairs remains with the majority of owners, despite the fact that this money belongs to the funds of the HOA (Part 2 of Article 151 of the Housing Code of the Russian Federation).
Income in the form of interest on deposit
By placing funds intended for major repairs on bank deposit, The HOA expects to receive interest. The partnership must keep in mind that for tax purposes, interest received from the temporary placement of target funds in deposit accounts in banks is taken into account as part of non-operating income (clause 6 of Article 250 of the Tax Code of the Russian Federation), therefore, is subject to income tax (or single tax, paid in connection with the application of the simplified tax system).
The main issue that requires resolution concerns the possibility of distributing interest on the deposit among the owners of premises in the house (members of the HOA).
From the editor. Mandatory payments, entrance and other contributions of members of the partnership constitute the funds of the HOA (clause 1, clause 2, article 151 of the Housing Code of the Russian Federation). At the same time, the property of the partnership is separated from the property of its members (clause 6 of Article 135 of the Housing Code of the Russian Federation). Therefore, targeted contributions made to the partnership become its property, therefore, income from their use (in the form of interest on the deposit) constitutes the property of the HOA. Owners of premises have no right to claim such income in any other way than to receive benefits from the use of these funds for the management of an apartment building.
Let's imagine that the interest was distributed among the members of the HOA. From point of view tax legislation such a distribution of interest is a violation of the intended purpose of funds intended for repairs. In this case, the HOA must pay income tax on the entire amount in the deposit account (clause 14 of Article 250 of the Tax Code of the Russian Federation) on the date of payment of interest to citizens (clause 9 of clause 4 of Article 271 of the Tax Code of the Russian Federation). In addition, the owners will also be burdened with the need to pay personal income tax on the amounts they receive as interest. As a result, there will be less money for major repairs. Is this the goal that owners pursue when deciding to place funds for repairs in a bank deposit account? Hardly. Thus, from an economic point of view, it is not profitable for owners to distribute the interest received.
Moreover, such distribution is contrary to civil law. Let us remind you that the HOA is a non-profit organization (clause 1 of Article 135 of the Housing Code of the Russian Federation). In accordance with paragraph 1 of Art. 50 of the Civil Code of the Russian Federation is a non-profit organization that does not have profit as the main purpose of its activities and does not distribute the profits received among participants. Consequently, the HOA does not have the right to distribute the interest received on the deposit among its members.
In this case, the management of these funds is carried out by the board of the partnership on the basis of a decision of the general meeting of members of the HOA. It seems appropriate to use the interest received on the deposit to carry out overhaul. Owners will only benefit from an increase in the fund for repairs. The possibility of using funds received in the form of interest for other needs is not excluded. The main thing is that these funds are aimed at achieving goals related to the management of an apartment building.
If the management organization is “in business”
In conclusion, let us touch upon the possibility of placing funds collected by the management organization on deposit. This practice seems dubious to say the least.
The funds received by the management organization from the owners of the premises in the house are payment for the services of this organization, that is, its income. The management organization, unlike the homeowners' association, is not bound by the decisions of the general meeting of owners regarding the disposal of funds received.
The management organization has the right to place the received funds in a deposit account with a bank. At least this is not prohibited by law. In accordance with paragraph 1 of Art. 834, paragraph 1, art. 838 of the Civil Code of the Russian Federation, the management organization acquires the status of a depositor, therefore, it is the organization that has the right to receive income in the form of interest on the deposit. At the same time, unlike the HOA, the management organization is not obliged to use the interest received for purposes related to the management of the apartment building.
Thus, the owners of premises, when their house is managed by a management organization, cannot receive any benefit if temporarily free funds of the management organization are placed on deposit.
* * *
The decision to place funds on deposit from a fund intended to finance repairs common property in an apartment building or HOA, it is advisable to make it simultaneously with the decision to carry out major repairs and the formation of an appropriate special fund. The conclusion of a bank deposit agreement does not violate the intended purpose of the collected funds, but only if the recommendations of the Ministry of Finance are followed. Interest on the deposit is recognized as taxable income of the HOA, belongs to the partnership and can only be used to conduct statutory activities. Due to the direct instructions of the law, this income is not subject to distribution among members of the HOA (owners of premises in an apartment building).
G.Yu. Sharikova
Legal Advisor
NP "Nizhny Novgorod Homeowners Association"
Signed for seal
10.05.2010
We save separately
Before the start of the capital repair program for houses, owners by law had the right to choose the method of forming contributions. The first is the account of the regional operator, in which the funds of all owners are accumulated and spent in accordance with the regional program. In this case, the work is carried out in a certain order.
An alternative to the “common boiler” is to open a special account for each specific apartment building. Then the owners can be sure that their contributions will go towards the renovation of their home. In addition, they can independently determine the deadline and types of work, choose a contractor, agree on an estimate, and even increase the monthly contribution, if necessary.
“The individual savings method is convenient for new buildings and relatively new houses,” I am sure Director of LLC Management Company "PZhREU Kurchatovsky District" (Chelyabinsk) Anatoly Davydenko. - For old and small houses this method is ineffective. The collection from contributions will be small, and all the deadlines for major repairs have already come. When will they save up? Where will they get the money? You need to take a balanced approach to creating a special account. There are about 400 in our housing stock apartment buildings. Now only one of them has such an account open. The owners of four more houses came up with the initiative to hold general meetings with this agenda.”
According to Director of DEZ Kalininsky District LLC (Chelyabinsk) Konstantin Smirnov, their company, on the initiative of the owners, launched a project for managing special accounts for major repairs: “The management company opens a special account in a bank with the possibility of placing funds on deposit at the highest possible high percent, then develops an individual overhaul program for each home, which, as calculations show, will be implemented much faster than the regional one. And the owners are calm: their money is in a specific bank and is spent on renovating their home.”
Chairman of the Homeowners Association "Vozrozhdenie" (Chelyabinsk) Marina Pronina told our website that their home managed to switch to a separate account without any problems. In the first four months of fundraising for major repairs alone, they managed to collect more than 100 thousand rubles. This money was immediately used to repair the leaking roof.
“At first I found out all the details from the bank where you can deposit funds for major repairs,” the interlocutor says about preparing to open a special account. - There I also received a list of documents necessary for this, the main one of which is the minutes of the general meeting of residents. Then they held a meeting of residents: there were few people at the in-person voting, so later voting was held in absentia. The decision to open an account was made by a majority vote. Then we sent a notification about this to the registrar and transferred the data to the GIS Housing and Communal Services. There, our house was included in the register of houses, funds for major repairs of which are accumulated in a special account.”
Marina Pronina admits that there are nuances when switching from a registrar to your own account at home. For example, you will have to control the progress and quality of work, issue and distribute receipts for the HOA or management company yourself. Collection of debts from defaulters also falls on the account holder's shoulders. “But the advantages of the transition outweighed all these nuances,” says the chairman of the Vozrozhdenie HOA. - We ourselves manage the process. For example, according to the regional program, the roof of our house would need to be repaired in 2031. Thanks to the special bill, we were able to make the necessary repairs this year.”
Five steps to a special account
Residents can open a special account even after the start of the program. To do this, it is enough to follow a certain algorithm of actions.
Step 1. Find your home in the renovation program
First of all, you need to find your home in the list of apartment buildings that are included in the regional capital repair program. It is important to find out that the house is not recognized as dilapidated and unsafe, otherwise the house will end up in another federal program- for relocation from dilapidated housing, and owners do not have to pay fees for major repairs.
Information about which program period your home fell into can be found on the regional operator’s website. If the house is included in the regional capital repair program, the residents’ funds are sent to the reoperator’s account and spent in accordance with short-term plans. Do you want to switch from a common piggy bank to your own account at home? Then we move on to the second step.
Step 2. Hold a general meeting of owners
The initiator of the meeting can be the council of the apartment building, the chairman of the HOA or housing cooperative, or initiative group from among the owners. According to the new amendments to housing law, from this year, a meeting of residents can be initiated by Management Company.
The organizer must notify the owners of the meeting and indicate the item on the agenda - opening a special account for major repairs.
If the number of people present at the meeting is not enough to make a decision, it can be held again, this time in absentia. Absentee voting is considered valid if at least two-thirds of the votes from total number voices in an apartment building.
Step 3. Draw up minutes of the decision of the general meeting of owners
The protocol needs to indicate several points. For example, indicate the amount of the monthly contribution (it may be greater than the minimum tariff established in the region), a list of works and services for major repairs (it cannot be less than those specified in the program - repair of the roof, foundation, facade, internal engineering communications). If the house has an elevator, then it should also be included in this list.
You must indicate the owner of the special account. According to the law, it can only be a legal entity - a homeowners association, housing cooperative, management company or reoperator. You must also indicate the bank in which the special account will be opened. Owners have the right to change the account holder and credit institution at any time if residents make such a decision.
At the end of June this year, amendments to Housing Code, according to which, at the general meeting to open a special account, the owners must decide and agree with the future account owner that he will print and deliver receipts, and will also carry out claims work with debtors. This must be recorded in the protocol. Otherwise, it will be impossible to open a special account.
Special accounts in large banks to transfer fees for major repairs they plan to protect them as deposits. Such a bill was prepared by the Ministry of Construction of the Russian Federation. Residents of houses with special accounts are offered to open “special deposits” in any banks from among the 50 largest (with the size equity at least 20 billion rubles). If banks' licenses are revoked, depositors will be able to receive the invested amount from special accounts in full.
Step 4. Select a bank to open an account
A special account can be opened in Russian credit institutions, the amount of capital of which is not less than 20 billion rubles. Money placed in the accounts of legal entities is not included in the system state insurance. Therefore, banks in which special accounts are opened must be large in size. own funds.
A special account is opened in the name of a legal entity upon presentation of the decision of the general meeting of homeowners drawn up in minutes and other documents provided for banking rules. You can find out about them directly from the credit institution.
The list of banks ready to service special accounts for the formation of a capital repair fund includes: VTB Bank, Sberbank of Russia, Alfa Bank, Rosselkhozbank, UniCredit Bank, Otkritie Bank, Promsvyazbank and other. The Central Bank of the Russian Federation quarterly posts information about credit institutions on its official website.
Step 5. Notify about opening a special account
Within five days after opening a bank account, you must send a certificate from the bank to the state housing inspectorate along with a copy of the minutes of the general meeting of owners. It is also necessary to send a notification to the registrar.
However, residents will not be able to immediately switch to a special account. “We regularly receive applications from various management organizations that open special accounts for houses, the process is ongoing,” notes General Director of the regional operator of overhauls in the Chelyabinsk region Vadim Borisov. - But such houses will be able to use the accumulated amount no earlier than after one calendar year. Then the registrar transfers all the money accumulated by the house to his account.”
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On December 25, 2012, the State Duma adopted amendments to the Housing Code, which established a new mechanism for accumulating funds for major repairs of the common property of apartment buildings. Now the main part of the financing of the overhaul program is the monthly contributions of apartment owners. They themselves decide how they will form a capital repair fund: either in a special account at home, or in a centralized account with a regional operator.
The hot summer of 2016 is in full swing: on July 3, Federal Law dated July 3, 2016 N 355-FZ, amending the Housing Code of the Russian Federation and the Federal Law “On Water Supply and Sanitation” came into force.
The document, among other things, established requirements for preservation funds from the capital repair fund, formed on a special account, and outlined the conditions for selecting a candidate for the position of head of a regional operator.
Safety of capital repair fund funds
Important changes affected Part 2 of Art. 44 Housing Code of the Russian Federation, approving competence of the general meeting of owners in MKD. Taking into account the changes made, the range of issues resolved by the OSS now includes making decisions on the method of organizing the capital repair fund in a special account.
In this regard, the OSS has the right:
- establish the amount of contribution for major repairs;
- determine minimum size capital repair fund- if the law of the subject of the Russian Federation establishes the minimum size of the capital repair fund;
- choose the person responsible for opening a special account;
- enter into a bank deposit agreement to place temporarily available funds from the capital repair fund in a special account;
- carry out transactions with funds located in a special account, special deposit in Russian bank in which it is planned to open such an account;
- place temporarily free funds of the fund in Russian credit institutions.
Thus, the procedure for placing temporarily free funds of the fund on a special deposit in a Russian bank is established.
In addition, the deadline for paying the penalty has been extended. Previously, owners of premises in apartment buildings who paid contributions for major repairs late or incompletely had to pay penalties from the day following the day of deadline payment, now - from the 31st day after the due date of payment.
Special deposit
Funds from a special account stored in a special deposit can be charged from its owner only in cases of obligations under agreements concluded on OSS (clauses 1.1-1, 1.2, part 2, article 44 of the Housing Code of the Russian Federation), and contracts for the provision of services or performance of work according to the Kyrgyz Republic OI in the MKD.
Transactions on a special account
- write off funds to pay for services rendered and work performed under the KR OI in the MKD;
- write off funds to repay loans taken to pay for services and work under Part 1 of Art. 174 Housing Code of the Russian Federation;
- transfer funds from one special account to another if the special account has been changed;
- based on the decision of the owners of premises in the apartment building to transfer funds to regional capital repair operator account and credit funds received from the regional operator when changing the method of forming the fund;
- credit contributions and penalties for major repairs.
In connection with the advent of a special deposit, three more possibilities appear:
- placement of all funds or part thereof on a special deposit;
- crediting funds from a special account to a special deposit;
- return of funds or part thereof, interest from their placement on a special deposit in accordance with the terms of the agreement special deposit to a special account.
Head of regional office
Federal Law N 188-FZ in Art. 178.1 of the Housing Code of the Russian Federation establishes the requirements for to the manager regional office or to a candidate for this position.
Appointment to the position of head of a regional office is based on the results of open competition.
The requirements for the candidate are clearly defined. A person cannot be appointed to this position if:
- the court declared him incompetent or partially incompetent;
- he is registered at a drug treatment or psychoneurological dispensary, as he is undergoing treatment for alcoholism, drug addiction, substance abuse, chronic and protracted mental disorders.
The candidate cannot have an unexpunged or unexpunged criminal record, or an unfulfilled punishment for any administrative offense in the form of disqualification.
A deputy of the legislative (representative) body of a constituent entity of the Russian Federation, a deputy of the body will not be able to be the head of a regional operator local government or government employee. If such a candidate is recognized as the winner of an open competition, then he must resign as a deputy or terminate his service contract for civil service within one month from the date of the relevant decision by the competition commission.
Qualification requirements are checked by exam:
- for a candidate for a position head of regional operator it is carried out during an open competition;
- for the head of a regional operator - at least once every three years, starting from the date of appointment.
25.04.17 16:39
According to Article 175.1 of the Housing Code Russian Federation hereinafter - the Housing Code of the Russian Federation) temporarily free funds of the capital repair fund formed in a special account are placed by the owner of the special account on the basis of a decision of the general meeting of owners of premises in an apartment building on a special deposit in a Russian credit institution that meets the requirements established by part 2 of Article 176 of the Housing Code of the Russian Federation, on the basis of a special deposit agreement, which is concluded in accordance with Civil Code of the Russian Federation and with the features established by the Housing Code of the Russian Federation.
A special deposit is not a way to form a capital repair fund, but additional opportunity receive income from temporarily free funds in a special account. Funds for the special deposit are transferred only from the special account and are also returned exclusively to the special account of the apartment building. This rule is established by part 3 of article 175.1 of the RF Housing Code. A special deposit is opened for a specific amount and for a certain period. On this amount the bank charges interest, which forms income.
It is advisable to open a special deposit if in the coming years the owners of premises in an apartment building do not plan to use the funds accumulated in the special account.
A special deposit can be opened only by decision of the general meeting of premises owners, with at least 2/3 of the votes of the total number of votes of the owners of premises in the house. The agenda should include the following issues:
1) conclusion of a special deposit agreement for the purpose of placing temporarily free funds of the capital repair fund formed in a special account;
2) choosing a bank to open a special deposit;
3) the amount of funds that will be placed on a special deposit;
4) the period for placing funds on deposit.
To carry out the procedure for placing temporarily free funds of the capital repair fund formed in a special account, a decision (protocol with attachments) drawn up in accordance with the requirements of the law must be sent to the owner of the special account.
The requirements for a credit institution where you can open a deposit are the same as for opening a special account: the credit institution must be Russian and have at least 20 billion rubles. own funds. central bank The Russian Federation quarterly posts information about credit institutions that meet established requirements on its website on the Internet.
The law does not prohibit opening a special deposit and a special account in different banks. The main condition: in both cases, banks must comply with the requirements of the Housing Code of the Russian Federation. All operations on a special deposit are carried out only through a special account. For example, you can only deposit funds from a special account. Refunds and payment of interest on a special deposit are also made only to a special account (Part 3 of Article 175.1 of the Housing Code of the Russian Federation). Termination of a special deposit agreement is the basis for closing a deposit account.
Funds from the special deposit are not spent. At the end of the deposit agreement, the amount placed on it is returned to the special account along with accrued interest.
Contributions for major repairs can now be placed in banks at interest and the profit received can be spent on the needs of the house. Amendments to the Housing Code have been published that clarify the procedure for such placement. According to experts, a lot in this procedure will depend on the activity and consciousness of the residents. The law does not guarantee that overhaul contributions will not depreciate or be lost. Economic commentator Valery Emelyanov read more.
Those houses whose owners collect funds for major repairs separately from the city have the opportunity to earn extra money from their contributions. They were prescribed a procedure for placing the common building fund on bank deposit. It sounds quite simple: at a meeting of owners you need to choose a bank and transfer the voting protocol to this very bank. The deposit can be opened in the name of a partnership, a certain trusted company, or even in the name of any of the residents, explains the head of the legal support department of the NP Housing and Communal Services Control Valery Novikov:
“The management organization can open this special account if the owners decide so, either the HOA, TSN, or housing cooperative, or they can choose one representative from the owners who will open it for themselves personally.”
The main problem with such deposits, as with special accounts in general, is that they are not insured by the state. The only protection against loss of capital and repair savings is that they can only be placed in banks with a capital of 20 billion rubles or more. These are the largest 35 financial institutions in the country, approved by the Central Bank as ultra-reliable. And yet, since the contributions will accumulate for decades, there is no guarantee that the contributions will successfully survive until the overhaul. Even the largest banks have problems with issuing once a century, recalls the co-chairman of the Russian Consumer Union Anatoly Golov:
“Let me remind you of the history of collecting money for major repairs by housing cooperatives in Soviet times. There was exactly the same scheme. They collected money, repairs could only be done with the permission of the state. So what? Citizens were recognized with this debt, and housing cooperatives were covered with a copper basin for major repairs.”
And yet, calculations show: it is more profitable for residents to save separately for their home only if they do it through a deposit. So, for a major overhaul of a typical panel, you need to collect about 60 million rubles. Provided that all residents pay their utilities regularly, the required amount will be accumulated in the current account only after 43 years. Approximately the same terms are obtained if you pay contributions to the citywide boiler. But when the money of a particular house is on deposit at 11%, the period is reduced to 16 years. Anyone can monitor how the special account is replenished and how the interest on it grows, adds Valery Novikov:
"The owner can contact the bank if he really is the owner of this apartment building. Either management organization, which is the owner of this special account."
However, experts warn that residents should not expect easy money from banks. Although the rates for legal entities they really look good financial institutions they are extremely reluctant to assign them to utility companies. Most capital special accounts now bring no more than 1-2% of annual income, that is, in fact, this money depreciates while the cost of repair work increases. To get a good deposit rate for your home, the person responsible for the money has to work hard, says Anatoly Golov:
“All the same, many will not receive any interest on this money. I know only one chairman of the HOA who achieved a decent percentage, about 7-8%. But he is a former Bank employee. You see, you even need to be able to put money in a bank at interest.”
True, all this is compensated by the fact that new amendments to the law exclude fraud on the part of utility companies and neighbors. It is not possible to spend money from the general account on anything other than major repairs - a written decision of the meeting is required. Without it, the bank will not give the money. Bankruptcy of a management company is also not a problem: responsible person changes, the money remains. It will also not be possible to withdraw funds through fictitious repairs, for example, by opening your own company and inflating the cost of the work. Each region has a list of approved contractors, and you need to choose from among them. Fraudsters can only fake the voting of owners. But here the residents themselves must monitor what they sign and in whose interests, says the head of the School of Literate Consumer project. Alexander Kozlov:
“This is the direct competence of the general meeting of owners. When opening a special account and deposit, the bank will look at the presence of a quorum, which the owners voted for this or that decision, documented in the minutes of the general meeting.”
Residents' control will be required at each stage of the overhaul, experts say. Without this, the accumulation period will be longer, the quality of work will be worse, or even the money will be withdrawn into the citywide pot. Such precedents already exist, and in full compliance with the law. If less than half of the home owners pay the fees, then the authorities have the right to transfer the money already collected by the residents to the general fund and use it to repair other houses.