Trusted use. The procedure for transferring property into trust management

In accordance with paragraph 1 of Art. 1012 Civil Code by agreement trust management property, one party (the management founder) transfers the property into trust management for a certain period of time to the other party (the trustee), and the other party undertakes to manage this property in the interests of the management founder or the person specified by him (the beneficiary).

The property trust management agreement is new to Russian civil legislation. He formalizes relations for managing someone else's property in the interests of its owner (or another authorized person - a creditor in an obligation, a subject of exclusive right) or another (third) person specified by him. Such management can be carried out at the will of the owner or authorized person, due, for example, to his inexperience or inability to use certain types of his property himself. In some cases, the manager must replace the owner (or other authorized person) by direct instructions of the law in connection with special circumstances: the establishment of guardianship, trusteeship or patronage (Articles 38, 41 of the Civil Code), recognition of a citizen as missing (Article 43 of the Civil Code) or his death (when the executor of the will, the executor, disposes of the inherited property until the heirs accept the inheritance).

In contrast to Anglo-American law, which adheres to the concept of “trust property,” Russian legislation directly states that the transfer of property into trust management does not entail the transfer of ownership of it to the trustee (clause 4 of article 209, paragraph 2 of clause 1, Article 1012 of the Civil Code). The relations arising as a result of the conclusion of the contract in question are obligatory, not proprietary.

By its legal nature, a property trust management agreement is an agreement for the provision of services. Its peculiarity lies in the fact that, by virtue of this agreement, the manager performs in the interests of the counterparty or beneficiary a complex of both legal and actual actions that constitute a single whole, and therefore its subject, unlike some other agreements, cannot be considered as simple sum legal and factual services.

This agreement is real. It comes into force from the moment of transfer of property to the manager for trust management, and when transferring real estate to management - from the moment of its state registration. It can be both paid and gratuitous, and is bilateral in nature.

The founder of trust management for general rule there must be an owner of the property - a citizen, a legal entity, a public legal entity, as well as subjects of certain obligatory and exclusive rights, in particular depositors of banks and other credit organizations, authorized under “book-entry securities”, authors and patent holders.

In cases directly provided for by law (clause 1 of Article 1026 of the Civil Code), the founder of trust management may not be the owner (copyright holder), but another person, for example, a guardianship and trusteeship body (clause 1 of Article 38, clause 1 of Article 43 GK).

Only a professional participant in property turnover - an individual entrepreneur or a commercial organization - can act as a trustee, since we're talking about on the use of someone else’s property for the purpose of generating income for its owner or the beneficiary indicated by him, i.e. essentially about entrepreneurial activity.

In cases where trust management of property is carried out on the grounds provided for by law, a citizen who is not an individual entrepreneur (a guardian of a minor or an executor appointed by the testator, etc.) can act as a trustee, or non-profit organization(fund, etc.), with the exception of the institution.

In many cases, trust management relationships involve a beneficiary who is not a party to the agreement. In relation to such situations, a trust management agreement is an agreement concluded in favor of a third party (clause 1 of Article 430 of the Civil Code). The founder himself can act as a beneficiary, establishing trust management in his favor.

However, the trustee cannot become a beneficiary (clause 3 of Article 1015 of the Civil Code), since this contradicts the essence of this type of agreement.

Both the entire property of the founder and a certain part of it (separate things or rights) can be transferred to trust management. According to paragraph 1 of Art. 1013 of the Civil Code, the objects of such management are:
real estate, including enterprises and other property complexes, as well as individual real estate objects;
securities;
rights certified by uncertificated securities;
exclusive rights;
other property (movable things and rights to claim or use someone else’s property).

Money cannot be an independent object of trust management, except in cases provided for by law (clause 2 of Article 1013 of the Civil Code).

Under penalty of nullity, a property trust management agreement must be concluded in writing (clauses 1, 3 of Article 1017 of the Civil Code). The transfer of real estate into trust management is subject to state registration in the same manner as the transfer of ownership of this property (clause 2 of Article 1017 of the Civil Code).

The property trust management agreement is concluded for a period not exceeding five years. For individual species property transferred into trust management, other deadlines are established.

The subject of the trust management agreement is the performance by the manager of any legal and actual actions in the interests of the beneficiary (clause 2 of Article 1012 of the Civil Code), since the full range of these actions is usually impossible to determine at the time of establishment of management. At the same time, the law or agreement provides for restrictions in relation to certain actions for trust management of property, for example, in relation to transactions for the alienation of property transferred to management.

As a general rule, the trustee is obliged to manage the founder’s property personally (clause 1 of Article 1021 of the Civil Code). The manager has the right to entrust another person to perform on his behalf the actions necessary to manage the property, if he is authorized to do so by agreement or has received the consent of the founder in writing, or he is forced to do this due to circumstances to ensure the interests of the management founder or beneficiary, without being able to obtain instructions of the founder within a reasonable time. In the case of transfer of trust management of property, the manager is responsible for the actions of the attorney he has chosen as for his own (Clause 2 of Article 1021 of the Civil Code).

The main responsibilities of the trustee also include submitting reports on its activities to the founder and beneficiary within the time frame and in the manner established by the agreement (clause 4 of Article 1020 of the Civil Code).

The trustee has the right to remuneration, if it is provided for in the contract, as well as to compensation for the necessary expenses incurred by him in managing the property. The peculiarity of the agreement in question is that payment of remuneration, as well as reimbursement of necessary expenses, must be made from income from the use of property transferred to management (Article 1023 of the Civil Code).

The manager carries out the disposal of real estate only in cases provided for by the contract (clause 1 of Article 1020 of the Civil Code).

Legal and actual actions are always performed by the trustee on his own behalf, who in this regard does not need a power of attorney. At the same time, he is obliged to inform all third parties that he is acting as such a manager. When performing actions that do not require written documentation, the specified communication is carried out by informing the other party in one way or another, and in written transactions and other documents, after the name or designation of the manager, the note “D.U.” must be made. (“Trustee”). If this requirement is not met, the manager becomes obligated to third parties personally and is liable to them only with the property belonging to him (paragraph 2, clause 3, article 1012 of the Civil Code).

Subject to the above conditions, debts under obligations arising in connection with the trust management of property are repaid at the expense of this property. In case of insufficiency of the latter, the penalty can be applied to the property of the trustee, and if his property is insufficient - to the property of the founder that has not been transferred to trust management (clause 3 of Article 1022 of the Civil Code). Thus, a two-stage system of subsidiary liability has been established - the manager and the founder.

For a transaction made by a trustee in excess of the powers granted to him or in violation of the restrictions established for him, the obligations are borne by the trustee personally.

However, if third parties participating in the transaction did not know and should not have known about these violations, the resulting obligations are subject to fulfillment in general procedure, provided for in paragraph 3 of Art. 1022 Civil Code. In this case, the founder may demand from the manager compensation for losses incurred by him (clause 2 of Article 1022 of the Civil Code).

According to paragraph 2 of Art. 1018 of the Civil Code, foreclosure of the debts of the founder on property transferred by him to trust management is not allowed, except in cases where he is declared insolvent (bankrupt). If the founder goes bankrupt, trust management of this property is terminated and it is included in the bankruptcy estate.

The trustee bears property liability for the results of his activities. The trustee, who, as a rule, is a professional entrepreneur, is liable for losses caused unless he proves that these losses arose as a result of force majeure or actions of the benefit of the acquirer or founder of the management (clause 1 of Article 1022 of the Civil Code).

Being a fixed-term transaction, the trust management agreement is terminated upon the expiration of the period for which it was concluded (or the deadline established by law). In the absence of an application from one of the parties to terminate the contract at the end of its validity period, it is considered extended for the same period and on the same conditions that were provided for by the contract (paragraph 2, clause 2, article 1016 of the Civil Code). If one party refuses a property trust management agreement, the other party must be notified of this three months before termination of the agreement, unless a different notice period is specified in the agreement. Upon termination of the agreement, the property held in trust is transferred to the founder, unless otherwise provided by the agreement (Article 1024 of the Civil Code).

Trust management of securities has certain features (Article 1025 of the Civil Code).

General rules
Article 1012 of the Civil Code of the Russian Federation establishes that under a property trust management agreement, one party (the management founder) transfers property to trust management for a certain period of time to the other party (the trustee), and the other party undertakes to manage this property in the interests of the management founder or the person specified by him ( beneficiary).

The transfer of property into trust management does not entail the transfer of ownership of it to the trustee.

The trustee, while managing property, has the right to perform any legal and actual actions in relation to this property in accordance with the agreement in the interests of the beneficiary (Clause 2 of Article 1012 of the Civil Code of the Russian Federation).

Restrictions on certain actions for trust management of property may be provided for by law or agreement.

The trustee makes transactions with the transferred property on his own behalf, indicating that he acts as such a manager (clause 3 of Article 1012 of the Civil Code of the Russian Federation). In practice, this requirement is considered to be met if, when performing actions that do not require written documentation:
the counterparty is informed about their commission by the trustee;
in written documents after the name (title) the note “D. U."

If there is no indication of acting as a trustee, then he is liable to third parties personally and only with the property that belongs to him.

As a general rule, the founder of trust management is the owner of the property (Article 1014 of the Civil Code of the Russian Federation). The trustee can be an individual entrepreneur or an organization, with the exception of a unitary enterprise (Article 1015 of the Civil Code of the Russian Federation). Property cannot be transferred to trust management government agency or a local government body (clause 2 of Article 1015 of the Civil Code of the Russian Federation).

The trustee cannot be a beneficiary under the trust management agreement.

Can be transferred to trust management:
enterprises and other property complexes;
individual objects related to real estate;
securities;
rights certified by uncertificated securities;
exclusive rights, etc. (clause 1 of article 1013 of the Civil Code of the Russian Federation).

Property under economic control or operational management cannot be transferred to trust management (clause 3 of Article 1013 of the Civil Code of the Russian Federation).

Features of concluding a contract
A property trust management agreement can only be concluded in writing (Article 1017 of the Civil Code of the Russian Federation). If the object of trust management is real estate, then the agreement must be concluded in the form provided for the contract for the sale of real estate (Clause 2 of Article 1017 of the Civil Code of the Russian Federation), including it is subject to state registration (Article 4 Federal Law dated July 21, 1997 No. 122-FZ “On state registration of rights to real estate and transactions with it”).

A real estate trust management agreement is considered concluded not from the day it is signed by the parties, but after the transfer of property to the trustee, provided that such transfer is certified by state registration.

At the same time, for tenants, the real estate trust management agreement will come into force only from the date of state registration of such transfer (Clause 2 of Article 551 of the Civil Code of the Russian Federation). Before registering the transfer of property, all rights and obligations to third parties are borne by the owner, and not the trustee.

It should be noted that it is not the trust management agreement itself that is subject to state registration, but rather the transfer of property into trust management. Thus, if changes and additions to the contract relate not directly to real estate, but to the procedure for managing it, then there is no reason to register these documents.

The essential terms of the property trust management agreement are (Article 1016 of the Civil Code of the Russian Federation):
composition of the property transferred to trust management;
Name legal entity or the name of the citizen in whose interests the management is carried out (the founder of the management or the beneficiary);
the amount and form of remuneration to the manager, if the agreement provides for the payment of remuneration;
contract time.

In the absence of one of the above conditions, the contract is considered not concluded. For example, the absence of data in the contract that would allow one to definitely establish the property to be transferred to the trustee is critical.

A property trust management agreement is concluded for a period not exceeding five years. For certain types of property transferred to trust management, the law may establish other deadlines for which an agreement can be concluded (clause 2 of Article 1016 of the Civil Code of the Russian Federation).

The time limit is established in order to protect the rights of the property owner. However, if the parties do not declare the termination of the contract at the end of its validity period, then it is considered extended for the same period and on the same conditions as provided for in the contract.

The peculiarity of trust management is that this agreement is not concluded for one-time transactions with property, but for managing it for a long time. By the way, this is confirmed by judicial practice. That is, a management agreement cannot be concluded to perform any one-time action, since trust management assumes the ongoing nature of the relationship.

Property transferred to trust management must be separated from the property of both the manager and the founder of the management (Article 1018 of the Civil Code of the Russian Federation). That is, the objects are reflected by the trustee on a separate balance sheet and independent accounting is maintained for them.

However, if securities from different founders are transferred to trust management, then they can combine their stakes of shares for transfer to him (Article 1025 of the Civil Code of the Russian Federation).

Property encumbered with a pledge can be transferred to trust management (clause 2 of Article 1019 of the Civil Code of the Russian Federation), and the pledgor remains its owner and retains the ability to dispose of it. This is also beneficial for the mortgagee, since additional income from competent property management can help the owner fulfill his obligations to him. At the same time, the manager must be warned about the pledge, otherwise he has the right to demand:
termination of the contract;
payment of remuneration for one year.

Rights and obligations of the parties
The trustee has the right to perform any legal and actual actions in relation to this property in accordance with the agreement in the interests of the beneficiary. Restrictions may be provided for by law or agreement (clause 2 of Article 1012 of the Civil Code of the Russian Federation).

In the interests of the property owner, the contract should stipulate aspects related to the reporting of the trustee, as well as the need to coordinate the conclusion of individual transactions with the property transferred to management.

In this way you can protect yourself, for example, from unauthorized sale of property. That is, the founder of the management can limit the actions of the trustee, for example, prohibit him from selling property without his consent.

The founder's property transferred under a trust management agreement is not allowed to be foreclosed on the founder's debts, except in cases of bankruptcy (Clause 2 of Article 1018 of the Civil Code of the Russian Federation). If, during the validity of the trust management agreement, debts arose under obligations in connection with the management of property, then they are repaid at the expense of this property.

If the property of the founder transferred under the trust management agreement and the property of the manager are insufficient, debt collection may also be applied to the property of the founder of the management that was not transferred to trust management.

Obviously, the trustee must be chosen carefully, otherwise you may not only not make a profit, but also lose what you have.

The trustee is also liable for his own property if he:
did not notify the counterparty of the conclusion of the transaction as a manager;
made a transaction in excess of the powers granted to him;
made a transaction in violation of the restrictions established for him.

He is also obliged to compensate for any losses incurred by the founder (Article 1022 of the Civil Code of the Russian Federation).

The trustee must also take care of the interests of the founder and beneficiary, and failure to comply with this requirement entails the liability of the trustee:
the beneficiary is compensated for lost profits;
to the founder - losses caused by loss or damage to property, plus lost profits (clause 1 of Article 1022 of the Civil Code of the Russian Federation).

The trustee may be released from liability for losses caused to the beneficiary and the founder of the management as a result of force majeure or the action of the beneficiary or the founder of the management (clause 1 of Article 1022 of the Civil Code of the Russian Federation). That is, if a fire occurs due to the fault of third parties, then the trustee is responsible, but if the property is destroyed as a result, for example, natural disaster, then the manager is not responsible.

The property trust management agreement may provide for the provision by the trustee of a collateral to ensure compensation for losses that may be caused to the management founder or beneficiary by improper execution of the trust management agreement (Clause 4 of Article 1022 of the Civil Code of the Russian Federation).

If securities are transferred to trust management, then you should pay attention to the fact that failure by the issuer to fulfill its obligations does not exempt from liability. Reason: the trustee is released from liability only by force majeure, the circumstances of which do not include, in particular, violations of obligations on the part of counterparties. With that said, attempts to include such terms in the contract should be discouraged.

The trustee has the right to remuneration provided for in the property trust management agreement, as well as to reimbursement of the necessary expenses incurred by him during the trust management of property, at the expense of income from the use of this property (Article 1023 of the Civil Code of the Russian Federation).

At the same time, the trustee must document the fact of incurring expenses related to the trust management of property, otherwise he may be denied compensation for the necessary expenses.

Termination of the contract
A property trust management agreement may be terminated due to (Article 1024 of the Civil Code of the Russian Federation):
death of a citizen who is a beneficiary, or liquidation of a legal entity - beneficiary, unless otherwise provided by the agreement;
refusal of the beneficiary to receive benefits under the agreement, unless otherwise provided by the agreement;
death of a citizen who is a trustee, recognition of him as incompetent, partially capable or missing, as well as recognition individual entrepreneur insolvent (bankrupt);
refusal of the trustee or founder of the management to carry out trust management due to the inability of the trustee to personally carry out trust management of the property;
refusal of the management founder from the agreement for reasons other than those specified in paragraph 5 of paragraph 1 of Article 1024 of the Civil Code of the Russian Federation, subject to payment to the trustee of the remuneration stipulated by the agreement;
recognition as insolvent (bankrupt) of a citizen-entrepreneur who is the founder of the management. If one party refuses a property trust management agreement, the other party must be notified of this three months before termination of the agreement, unless the agreement provides for a different notice period.

The extension of the agreement on the same conditions and for the same period may be refused if the founder of the trust management sent a letter within the prescribed period of termination of the trust management agreement and the obligation to return the property.

Upon termination of the trust management agreement, the property under trust management is transferred to the management founder, unless otherwise provided by the agreement.

IMPORTANT:

If a business entity owns property, the management of which requires special knowledge and qualifications, then it seems advisable to transfer the property to trust management by drawing up a special agreement for this purpose.

Failure to comply with the form of the property trust management agreement or the requirement to register the transfer of real estate into trust management entails the invalidity of the agreement (clause 3 of Article 1017 of the Civil Code of the Russian Federation).

The trustee has the right to perform any legal and actual actions in relation to the property in accordance with the agreement in the interests of the beneficiary. Restrictions may be provided for by law or agreement (clause 2 of Article 1012 of the Civil Code of the Russian Federation).

The trustee must document the fact of incurring expenses related to the trust management of property, otherwise he may be denied compensation for the necessary expenses.

Margarita POLUBOYARINOVA, expert at “Your Reliable Partner” LLC

21May

Hello! In this article we will talk about trust management.

Today you will learn:

1. What can be transferred to trust management;
2. How to open a trust agreement;
3. How to choose the right management company.

Trust management and its features

Today there are a huge number of intermediaries in various spheres of life. You can enter into an agreement with a company that will make a wholesale purchase for you or deliver the goods to the addressee.

This is a common type of business that is gaining momentum. It is convenient not only for intermediaries, but also for the service customers themselves: there is no need to delve into the essence of the issue, you can simply pay money and conduct a transaction on favorable terms.

Intermediaries can manage property for the purpose of preserving it or increasing assets. This is called trust management.

For example, you want to, but don’t know how to do it. A qualified manager will cope with this task. This option is also suitable for busy people who do not have time to deal with their own property: it is easier to transfer it to a third party for temporary disposal, with some restrictions.

Can be transferred cash or other property as an individual (working as an individual entrepreneur) or. They must have a license to carry out such activities, otherwise they may lose part of their property or even contact scammers.

Participants in trust management can be individuals and entire organizations. In both cases, an agreement is concluded that stipulates all the nuances of the transaction.

Management companies charge a certain fee for their work. It is usually calculated as a percentage of the profit that was obtained during the limited disposal of the property. Its size depends on the type of property transferred for management, the policy of the company itself and the profit received.

An important factor here is that these intermediaries do not provide guarantees of profitability (hence the concept of “trust”). This important clause is contained in the legislation.

Intermediaries can disclose to you the profit received during the previous period of activity when interacting with other clients.

Typically, a trust management agreement is concluded for a period of no more than 5 years. If the parties upon its completion have not taken the initiative to terminate the agreed conditions, then such an agreement is extended by default for a new term.

In this case, the manager does not need a power of attorney to perform any actions with the transferred property. For actions to be legal, it is enough to put the mark “D” in each document. U."

The procedure for interaction between the manager and the owner of any asset is regulated by the Civil Code of the Russian Federation. Failure to comply with legal regulations may result in penalties.

Classification of trust management

Trust management service is gaining popularity: everything more people transfer their own funds on favorable terms to intermediaries.

Depending on the object of the agreement, trust management can be:

• In cash. You transfer your own funds to a management company, which increases capital over a certain period of time;
• Securities. If you have a package of shares or bonds, the manager will help you make profitable purchases and sales on;
• Real estate. Buildings, structures, land plots or entire complexes;
• Assets. These are different inventories, vehicles and other property of enterprises;
• Property. For example, an organization may transfer its own equipment or copyrights to an intermediary.

Each type of property will have its own management company. Universal intermediaries involved, for example, in managing both money and real estate are extremely rare today.

If you need to transfer securities and equipment, you will have to contact different companies. This division is due to the narrow specialization of most companies. They employ professionals in a particular field, whose knowledge is at a high level.

However, cash and securities management can be handled by one company.

Trust management, based on the nature of interaction between the manager and the client, can be:

• Full. In this case, an agreement is concluded in which the owner completely transfers the initiative to the intermediary. The manager is responsible for all actions with assets. However, he does not guarantee a profit, and losses incurred through his fault cannot be challenged in court. This is only possible if you prove the intentionality of his actions, which in practice is almost impossible, especially if you do not know the basics of this activity;
• By agreement. The manager informs the client about favorable market moments for making transactions with the transferred property. The owner, at his discretion, can give a positive or negative answer. In this case, responsibility for operations falls on the shoulders of the client. If the transaction turns out to be unprofitable, the intermediary will not be to blame;
• By order. The owner of the assets transferred for trust management, at his own discretion, transfers the action plan to the intermediary. In this case, the intermediary’s management rights are limited; he cannot independently make decisions on transactions with the object of management.

Full trust management is in great demand in our country. For the most part, this is due to financial illiteracy and reluctance to delve into complex financial issues.

Trust money management

Transferring funds to trust management is not yet a guarantee of profit. If unfavorable events occur, you may even lose your invested money. Typically, some guarantees of income or return of funds are stipulated in the concluded agreement.

The money management agreement may indicate that, as a result of the transaction, the client receives:

• A certain guaranteed amount of invested funds as a percentage of the initial capital + profit. For example, in the event of an unsuccessful development of events, only 70% of the capital will be returned to you, and in case of a successful transaction, you will take your own funds and 13% per annum guaranteed;
• Full investment amount + interest. This may include. You should only take into account the restrictions on deposit insurance. It is recommended to place no more than 1,400,000 rubles in one management company (bank);
• Unpredictable transaction outcome. There are no guarantees; the work of an intermediary can only be judged by previous income or losses. This is the riskiest type of trust management, which, if won, can bring a return exceeding 100%.

The goals of trust money management are:

• Saving money from uncontrolled spending;
• Preservation of monetary assets in property during the procedure;
• Tax evasion, concealment of the identity of the owner of the money;
• Capital growth.

The most common ways to manage funds:

In both cases, you transfer funds to a management company that handles asset distribution.

Mutual funds are the most profitable option for owners of small amounts. If you don't know how to make a profit with small capital, buy a few shares that you can then sell profitably.

Mutual funds allow you to invest in the most different areas life activity. Your money, combined with other assets of investors, will be used to purchase securities, carry out or. It all depends on the direction of activity of the management company (MC).

PAMM accounts are a common tool for investing in stock and... You open a special account, which is combined with the accounts of other participants.

An experienced manager controls the placement of the entire amount of funds and closely monitors the process. Since the investment amount is impressive, the income can be corresponding.

Trust property management

Property management involves solving a whole range of problems and depends on the specifics of the transferred object.

The last one could be:

• Real estate;
• Exclusive rights (for example, management of shares in);
• Securities;
• Movable property;
• Other.

As we see, the control spectrum in in this case very wide. The intermediary can dispose, within the framework stipulated by the agreement, of all property: from securities to real estate complexes.

These types of management are convenient in cases where the owner of the assets went for temporary residence in another country. During his absence, things will not stand still: a competent specialist (and in most cases, a group of them) will dispose of the property at his own discretion or by clarifying the plan of action with the client.

The transfer of property into trust management is often carried out during guardianship or recognition of the owner as missing. Moreover, often the property is not in the hands of the copyright holder, but in the possession of the guardianship authorities.

Here the manager will not necessarily be some kind of organization, more often it will be individual as a guardian. In this case, the manager will not be considered a beneficiary under the agreement.

It is important to understand that the disposal of the owner’s property is temporary. According to the law, ownership of the assets does not pass to the manager.

Trust management of real estate

Many of us turn to real estate companies. This is one of the types of trust management of real estate.

There are countless such intermediaries on the market, and they have existed for a long time. Their activities are based on concluding an agreement with a client, which will result in the sale of real estate, or the supervision of it during the absence of the owner.

The management company provides several services depending on the subject of the agreement:

• Payment of utility bills;
• Cleaning the premises;
• Timely repairs;
• Purchase of necessary furniture, equipment, etc.;
• Search for a client suitable for the role of buyer or tenant;
• Insurance;
• Safety from attacks by third parties;
• Solution conflict situations with representatives of the law or residents;
• Representing the interests of the owner in the registry chamber;
• Transfer of received results of the transaction sums of money to the account of the property owner.

Trust management of an apartment, building and other real estate is recorded in the registry office in the same way as a regular purchase and sale transaction. An agreement signed on other terms has no legal force.

If the agreement is concluded for a period of more than one year, then all actions with real estate must also be registered with a government agency.

Trust management of securities

If you want, then the initiative in this matter can be transferred to a brokerage company. She will competently compile an investment portfolio and predict possible risks and returns.

For example, you can open an individual account, the funds on which will be controlled by an intermediary.

As you know, shares are a rather risky stock market instrument that can deprive the owner of his invested funds in a short period of time. And if there is a high risk, then the profit may exceed expectations. Operating in the stock market requires special knowledge and trading skills. Without them, you can lose capital.

The management company is aimed at generating income from them. In this case, the broker often combines the client’s invested funds with personal funds. For the owner of capital, this means confidence that each transaction will be carried out extremely carefully: after all, failure threatens the loss of funds to the trader himself.

An important concept in the trust management of securities is diversification. It is necessary to distribute the available capital among several securities market instruments.

Example. You can invest money in stocks large companies, government bonds and a small portion in market newcomer securities. This will help increase the efficiency of investments and increase the chances of receiving large income.

Trust management of securities usually takes 12 months. Some clients withdraw funds after six months. the main objective transfer of control of stock market instruments - precisely the increase in capital in a short time.

Trust management of shares and other securities is highly popular in our country, since still a small number of the population understands the intricacies of trading in the stock market.

The terms of the contract may provide that the client will monitor the manager’s actions online. This will allow you to recognize some of the nuances of the market and understand many concepts. In the future, if desired, the client will be able to conclude the first transactions independently.

The owner of the purchased securities has the right to be interested in the actions performed by the trustee and to clarify the situation on the market. If for some reason the owner of the capital considers it necessary to withdraw his funds, he cannot be denied this.

Trust asset management

Each organization has different assets at its disposal. To make their management more efficient and bring profit in a short time, this activity is entrusted to a third-party company.

The following property of a legal entity can be transferred for trust management:

• Building;
• Various types of structures;
• Equipment;
• Vehicles;
• Commodity values;
• Copyrights and available patented technologies;
• Bank deposits.

An important feature when transferring enterprise assets into trust management is that they are not combined with the manager’s funds. Separate records are kept for the received property, which is negotiated at the stage of concluding the transaction.

The intermediary can make transactions with the assets of the company on his own behalf. Upon completion of the agreement, the proceeds are transferred to the account of the asset owner.

In this case, the object of the agreement may be the opening of an account for:

• Stock market;
• Forex;
• Purchase of metals.

The riskiest of the options listed is the Forex market. By making transactions on it, the company risks being left with nothing. Investments in the foreign exchange market are suitable only for companies pursuing an aggressive policy.

Another area for asset placement is the real sector of the economy. This is the purchase of real estate, equipment and other large objects. This activity has a long process, which takes funds out of the organization’s turnover for a long time, and therefore is available only to large enterprises with free capital.

The most common way to invest assets is investing in stock market instruments. Moreover, here companies may have the goal of generating income or acquiring other companies by purchasing a controlling stake.

When concluding a contract in mandatory an investment declaration is drawn up. It contains in detail all areas of investment.

During the validity of the agreement, the owner of the assets has the right to withdraw his own money partially or in full. However, funds received as income can only be withdrawn during periods stipulated by the operating conditions of the management company.

Enterprise asset management involves operating large sums. Typically, intermediaries enter into contracts for an amount starting from 1,000,000 rubles.

Instructions for those wishing to use trust management

In order for the accumulation process to go smoothly and without involving the owner of capital in the process, it is better to find a competent manager. In this case, an agreement is concluded that stipulates all the nuances of the intermediary’s actions and excludes fraudulent tricks.

To transfer your own property, assets, and funds to trust management, you will need to go through several steps:

1. Decide what exactly will be transferred to the intermediary. The further search for a manager, the amount of his remuneration, the term of the contract and potential profit depend on this. It is important not to transfer to management those funds that you may need in the near future. Intermediaries do not guarantee income, and therefore there is a possibility of being left without the required funds;
2. Choosing an intermediary. It is important to find a management company whose name is well-known. It must have an excellent reputation, and also have a license for the services provided. You should not trust your own property to dubious individuals who call themselves representatives of financial companies. Check all the documents, and most importantly, read reviews on the Internet;
3. We collect the necessary documentation. Each company presents its own list. It depends on the nature of the intermediary’s further actions and the degree of participation of the capital owner in it;
4. Conclusion of an agreement. Be sure to ask the manager if any clause of the agreement is not clear to you. Phrases should not be perceived in two ways, and therefore, if in any doubt, ask to redo the line of the contract. Here, pay attention to the term of the agreement, the amount of remuneration and your rights. Most often, the contract form has a single template established for all clients;
5. Payment for intermediary services. This may be a fixed amount, paid immediately after the conclusion of the contract, or a percentage of the income received. If possible, choose a second payment method. It motivates the manager to earn more, which means you will receive considerable income;
6. Monitoring the activities of the manager. Please note that the contract must contain a clause covering this question. For example, an intermediary may report income and loss for specified periods. This is important, as you will be able to determine the effectiveness of management and promptly protect funds from possible loss.

How to choose a management company

Entrust your own funds to a stranger, even if he is an employee of a large company financial company, is not a simple matter. Therefore, you need to be extremely careful when selecting a management company. Your income and safety of capital or other property depend on this action.

• Pay attention to the company's analytics database. Market analysis is an extremely important indicator by which it is possible to predict asset purchase and sale transactions. If the management company does not maintain analytical and news blocks on its website, this is a reason to be wary. Any large and self-respecting company spends a lot of money on this, which a small intermediary without experience cannot afford;
• Determine the level of reliability of the intermediary. Contact various rating agencies. Their reviews can be easily found on the Internet. The management company should occupy the top lines of the rating - this will indicate its high reliability and extensive experience;
• Find reviews about the company. Don't neglect customer opinions. They can tell you a lot. From their words we can conclude about further cooperation;
• Find out how many investment strategies the management company offers. If there are three or more of them, then this company can be considered for transferring its own funds. If there are only two strategies or even one, then you should not contact such an intermediary;
• Analyze the investment portfolio offered by the management company. It is believed that in practice the share of one type of asset when diversifying investments should not exceed 15%. If this figure is significantly higher, and moreover, it corresponds to risky assets, then you may lose your capital;
• Find out if the intermediary provides personal manager services. In this case, you will have a personal financial intermediary with whom you can agree on various nuances and consult on any issue;
• Check whether you will have the right to restrict the actions of the manager. For example, it is important to set the level percentage assets in a diversified portfolio. Thus, you can protect yourself from inappropriate actions of the intermediary and save your invested money;
• Find out on what basis you can request a report on the actions of the manager (paid or free) . Reliable companies provide information free of charge upon your request, and for any period of time.

By following our recommendations, you can find a quality manager who will not only preserve your capital, but also bring high profitability. The main thing is to ask all your questions before concluding a contract, so that the nature of the company’s activities is clear to you at the initial stages.

1. Trust management as an institution of the law of obligations

In cases where trust management relations arise not by virtue of an agreement, but on other grounds directly provided for by law, a citizen who is not an individual entrepreneur (for example, a guardian of a minor or an executor appointed by the testator) or a non-profit company can act as a trustee. organization (for example, a foundation), other than an institution. The latter, like a unitary enterprise, is not allowed to act as a trustee, primarily due to the extremely limited nature of the rights to the owner’s property (and the associated restrictions on his property liability).

In many cases, trust management relationships involve a beneficiary (beneficiary), who does not become a party to the agreement. From this point of view, a trust management agreement is a typical example of an agreement concluded in favor of a third party (clause 1 of Article 430 of the Civil Code). Therefore, the beneficiary status is determined general provisions about this type of contract. In particular, the beneficiary has the right to demand from the manager performance in his favor, and his consent may be required for early changes or termination of the contract.

The founder himself can act as a beneficiary, establishing trust management in his favor. Under no circumstances can the trustee become a beneficiary (clause 3 of Article 1015 of the Civil Code), since this contradicts the essence of the agreement in question.

3. Objects of trust management

The object of trust management can be either the entire property of the founder or a certain part of it (separate things or rights). But not every property can act in this capacity. In accordance with paragraph 1 of Art. 1013 of the Civil Code, objects of trust management may be:

• individual real estate objects, including enterprises and other property complexes;
• securities;
• rights certified by uncertificated securities;
• exclusive rights;
• other property (movable things and rights of claim or use), if it is possible to separate it and record it on a separate balance sheet or bank account (clause 1 of Article 1018 of the Civil Code).

Thus, in all of the above cases we are talking not just about individually defined, but about legally separate property. The fact is that the very essence of trust management does not allow the possibility of mixing the property under management with the property of the manager himself. Otherwise, various misunderstandings and even abuses would become inevitable: not only income from the use of such property would be mixed up, but also the rights and obligations arising from this, and the property of the founder under management could become the object of recovery by creditors for the personal debts of the manager.

Consequently, the transfer of only movable things into trust management is excluded, since it is impossible to isolate them in the legal sense (by opening a separate balance sheet). Moreover, legal actions with movable things in many cases represent transactions for their alienation, which excludes their return to the original owner. It is therefore impossible to make, for example, an independent object of trust management, gems And precious metals. Another property complex, which, of course, may include movable things. In this case, the object of the contract may even be property that does not exist at the time of its conclusion, for example, products produced in the future, fruits and income from transferred to trust management property complex.

The exception is securities, which, even as movable things, always have characteristics that legally individualize them. But even when homogeneous securities belonging to different founders are transferred into trust management, in which the combination of these things is permitted (Part 1 of Article 1025 of the Civil Code), they must still be separated from the property of the manager, including from similar securities owned by him.

In this case, the object of trust management is mainly equity securities - shares and bonds, since most other types of securities, for example title to goods, are used in circulation on the basis of other transactions. Many types of securities, in particular any bills and checks, are simply not capable of serving as the object of the agreement in question. Therefore, the most common object of management is corporate securities - shares, especially voting ones, i.e. including the powers to manage the affairs of the issuing company that issued them.

Shares and bonds, as is known, are issued not only in the form of certificated securities (things), but also much more often in “book-entry form”. Therefore, in most cases, we are essentially talking about trust management of property rights. Obligatory, corporate and exclusive property rights do not require additional special isolation and can be transferred to trust management, unless, of course, this does not contradict their essence (it is obvious, for example, the impossibility of transferring to trust management the powers of a buyer or seller, attorney or agent, or the rights of a participant general partnership, etc.).

Cash cannot become an independent object of trust management (clause 2 of Article 1013 of the Civil Code). They usually do not relate to individually defined things, and when they are used in property circulation, the ownership of the corresponding banknotes is inevitably lost and they cannot be returned to the owner at the end of the contract (especially since the latter is usually not interested in the return of the same banknotes, but in receiving greater than the original denomination).

For this obvious reason, the activities of management companies of mutual investment funds that “invest” the funds of their investors in securities, real estate, bank deposits and other property, i.e., cannot be recognized as a type of trust management. they do not manage them on the basis of a trust management agreement, but alienate them on the basis of purchase and sale agreements, loans, bank deposits, etc. The above also applies to “trust management of money,” including cash, declared “means of investment in securities” or included in the “general funds of banking management”. The use of money in property circulation for the purpose of increasing it is carried out in other civil legal forms, primarily loan and credit agreements, bank deposits, but not trust management.

At the same time, under certain conditions, non-cash funds listed in a bank account (and thereby legally separate), which, as is known, represent the client’s right of obligation to the bank, can be transferred into trust management. In this sense, we can talk about trust management bank account or bank deposit. In other words, we are also talking about trust management of property rights.

Because the unitary enterprises and institutions cannot be participants in trust management relations, and the owner’s property assigned to them under the right of economic management or operational management cannot become an object of trust management. Credit organizations are deprived of the right to transfer their property for trust management to other credit organizations.

At the same time, property that is pledged (for example, real estate encumbered with a mortgage) can be transferred to trust management, since the mortgagor remains its owner and retains the ability to dispose of it. Moreover, involving a professional manager in the management of such property can significantly increase the efficiency of its use and help the pledgor (the management founder) fulfill his obligations to the secured creditor.

But the trustee must be warned by the founder about encumbering the property with a pledge, since such property may become the object of recovery by the pledgee and therefore be subject to withdrawal from trust management (clause 2 of Article 1019 of the Civil Code). He himself can find out about this by checking the legal regime of the property transferred to management. If the manager did not know and should not have known about such an encumbrance on the property, he has the right to terminate the trust management agreement in court and collect an annual fee from the founder.

Contents and execution of the property trust management agreement

1. Concept and content of a trust management agreement

Trust management of securities

1. Agreement on trust management of issue-grade securities

In the role of founder of management on behalf of Russian Federation The Ministry of State Property of the Russian Federation (formerly the State Property Committee) acts, and the trustee of such shares is determined based on the results of a closed competition (tender) held by the Federal Government. Participants of this competition(and accordingly, trustees) can only become commercial organizations that have net assets(or own funds) in the amount of at least 20 percent of the price of shares transferred into trust management, as well as a license to carry out securities management activities. The founder of the management in this situation always simultaneously acts as a beneficiary.

A draft trust management agreement for the specified shares is being developed by a commission to hold a competition for the right to conclude a trust management agreement for them. Mandatory parts of the agreement are the assignment for trust management (which establishes the tasks of the trustee to increase the value of the shares transferred to him for management and liquidate the company's debt on mandatory payments) and the program of activity of the trustee, which are approved by the said commission. The agreement is concluded with the winner of the competition within a month after it is held and is considered concluded from the moment it is signed (and not from the moment the shares are transferred to management). Within 10 days from the date of signing the agreement, the founder ensures that an entry on the transfer of shares into trust management is made in the register of shareholders.

The founder transfers shares into trust management free of pledges and other encumbrances, and also undertakes not to alienate them by any means during the term of the agreement. For his part, the trustee does not have the right to dispose of the shares transferred to him for management and, in particular, is deprived of the opportunity to pledge them, otherwise encumber or alienate them. Voting by the manager on the shares transferred to him must be agreed in writing with the founder, if we are talking about making changes and additions to the company’s charter, including cases of reorganization or liquidation of the company and changing the size of its authorized capital, carrying out major transactions on his behalf, issuing securities and approving annual reports.

The term of trust management of the named shares cannot exceed 3 years. A mandatory condition for management is the provision by the manager of security agreed upon with the founder of the management, in the form of either an irrevocable bank guarantee from the bank, or a pledge of the manager’s own real estate or securities, which has a high degree of liquidity. The specific method and amount of security (which in any case cannot be less than the value of the shares transferred for management) is established by the competition commission.

The manager is obliged to provide the founder with a report on his activities twice a year, and the latter has the right to organize a review of the report by an independent auditor (and accept the report only after this review). The manager must also provide the founder, upon his request, Required documents and information about his activities, and the founder has the right to control the fulfillment by the manager of all his obligations under the contract.

The manager's remuneration is paid once, no later than 3 months after the end of the contract. The amount of remuneration to the manager should not exceed the limit established by the Federal Government. The competition commission determines the maximum amount of compensation for necessary expenses incurred by the manager. Remuneration to the manager and reimbursement of expenses incurred by him may be paid exclusively at the expense and within the limits of dividends on the shares under management.

The founder has the right to unilaterally refuse the agreement by notifying the manager at least 10 days before termination of the agreement.

3. The beneficiary (beneficiary) may be the founder of the management or any third party, however, the figures of the beneficiary and the trustee may not coincide in one person.

4. The founder of the management may transfer part of his property or even all of his property into trust management. The object of trust management can be various types of property, including enterprises, other real estate, securities, including uncertificated, exclusive rights, etc. (Article 1013 of the Civil Code).

In relation to certain types of property, certain restrictions are established on their transfer to trust management:

• property under economic management or operational management cannot be transferred to trust management;
• money can be the object of trust management only if it is provided for by law. However, if money is transferred to trust management as part of an enterprise as a property complex, then the specified restriction does not apply to it;
• When transferring property encumbered with a pledge into trust management, the trustee must be warned about this. If he did not know and should not have known about this circumstance, then he has the right to terminate the property trust management agreement in court and demand payment of the remuneration due to him for one year. At the same time, the transfer of pledged property into trust management does not deprive the pledgee of the right to foreclose on this property (Article 1019 of the Civil Code).

5. In accordance with paragraph 1 of Art. 1018 of the Civil Code, property transferred to trust management is separated from other property of the management founder, as well as from the property of the trustee. This property is reflected by the trustee on a separate balance sheet, and independent accounting is maintained for it. For payments for activities related to trust management, a separate bank account is opened.

Another manifestation of the isolation of property under trust management is the peculiarities of foreclosure on it for the debts of the management founder - such recovery is prohibited. However, in the event of bankruptcy of the founder of the management, the trust management of this property is terminated and it goes to the bankruptcy estate (Article 1018 of the Civil Code).

Essential terms of the agreement. Rights and obligations of the parties

1. Clause 1 of Art. 1016 of the Civil Code specifies the following essential terms of this agreement:

• composition of property transferred to trust management;
• the name of the legal entity or the name of the citizen in whose interests the property is managed (the founder of the management or the beneficiary);
• the amount and form of remuneration to the manager, if the payment of remuneration is provided for in the contract;
• contract time. A property trust management agreement is concluded for a period not exceeding five years. For certain types of property transferred into trust management, the law may establish other deadlines. For example, Art. 19 of the Federal Law of November 11, 2003 No. 152-FZ “On Mortgage Securities” established that the validity period of the trust management agreement for mortgage coverage should not be less than a year and more than 40 years.

In the absence of an application from one of the parties to terminate the contract at the end of its validity period, it is considered extended for the same period and on the same conditions as provided for in the contract.

There is an opinion that the essential terms of the property trust management agreement should also be considered the procedure and timing for the trustee to submit a report on his activities.

Naturally, an essential condition of a property trust management agreement, like any agreement in general, is its subject - the legal and actual actions of the manager in relation to the property transferred to him for management.

2. The trustee exercises, within the limits provided for by law and agreement, the powers of the owner in relation to the property transferred to trust management. Disposal of real estate is possible, however, only in the cases provided for by the contract (clause 1 of Article 1020 of the Civil Code). The law or agreement may establish other restrictions on the powers of the manager (for example, he may be prohibited from renting out the property transferred to him).

The manager makes transactions on his own behalf, but at the same time he must indicate that he is acting specifically as a manager. This condition is considered to be met if, when performing actions that do not require written documentation, the other party is informed about their performance by the trustee in this capacity, and in written documents after the name of the trustee the note “D.U.” is made. (clause 3 of article 1012 of the Civil Code).

It is allowed to indicate the fact of a person’s action as a trustee in another way, in addition to putting the mark “D.U.” (for example, the manager records in writing that he is acting on the basis of a trust management agreement). In case of failure to comply with this requirement, the trustee is considered to have made the transaction for personal purposes and is liable for these obligations only with property belonging to him personally.

3. The trustee is obliged to carry out management personally. He can entrust the performance of this duty to another person only in the following cases:

• if authorized to do so by agreement;
• if you have received consent to this from the founder of the management in writing;
• if forced to do so due to circumstances to ensure the interests of the management founder or beneficiary and does not have the opportunity to receive instructions from the management founder within a reasonable time.

The trustee is responsible for the actions of the attorney he has chosen as for his own (Clause 1, Article 1021 of the Civil Code).

4. The rights acquired by the trustee as a result of actions for trust management of property are included in the composition of the property transferred to trust management. The obligations arising as a result of such actions of the trustee are fulfilled at the expense of this property (clause 2 of Article 1020 of the Civil Code).

5. The trustee is given the right to use proprietary methods of protection in relation to the property transferred to him for trust management (vindication, negatory action, etc.) (Articles 301, 302, 304, 305 of the Civil Code).

6. Another responsibility of the trustee is to provide the management founder and beneficiary with a report on his activities within the time frame and in the manner established by the property trust management agreement (clause 4 of Article 1020 of the Civil Code).

7. In accordance with Art. 1023 of the Civil Code, the founder of the management is obliged to pay the manager a remuneration, as well as reimburse the necessary expenses incurred by him during the trust management of the property, from the income from the use of this property. The law does not impose other duties on the founder of the management.

Responsibility of the parties under the property trust management agreement

1. The responsibility of the trustee should be divided into two types: responsibility to the founder of the management and the beneficiary (i.e. in “internal” relations) and responsibility to third parties in the process of carrying out his activities (in “external” relations).

2. With regard to the responsibility of the trustee in “internal” relations, the Civil Code contains the following rules (clause 1 of Article 1022): a trustee who has not shown due diligence during the trust management of property shall compensate the founder of the management for losses caused by loss or damage to property, taking into account its natural wear and tear, and lost profits, and the beneficiary - only lost profits.

The trustee is liable for losses caused unless he proves that these losses occurred as a result of force majeure or the actions of the beneficiary or the founder of the management.

The agreement may provide for the provision by the trustee of a pledge to ensure compensation for losses that may be caused to the founder of the management or the beneficiary by improper execution of the trust management agreement (clause 4 of Article 1022 of the Civil Code).

3. As for the responsibility of the manager in “external” relations, in paragraph 3 of Art. 1022 of the Civil Code provides for the order of foreclosure on property for debts arising in connection with trust management:

• First of all, foreclosure is applied to property transferred to trust management;
• if such property is insufficient, then foreclosure is applied to the personal property of the trustee;
• if such property is not enough, then the penalty is applied to the property of the founder of the management that has not been transferred to trust management.

4. Special rules are established for the case when a trustee acts in excess of the powers granted to him or in violation of the restrictions established for him.

As a general rule, the trustee is personally liable for the relevant obligations. If third parties participating in the transaction did not know and should not have known about the excess of authority or about the established restrictions, the resulting obligations are subject to fulfillment in the order specified above. The founder of the management may in this case also demand from the trustee compensation for losses incurred by him.

5. Special rules The Civil Code does not contain any provisions regarding the liability of the management founder (for example, in case of untimely payment of remuneration to the manager), which means that it is determined in accordance with the general provisions on liability for violation of obligations.

Termination of a property trust management agreement

1. The grounds for termination of a property trust management agreement include the following:

• death of a citizen or liquidation of a legal entity - the beneficiary, unless otherwise provided by the agreement;
• recognition as insolvent (bankrupt) of a citizen-entrepreneur who is the founder of the management;
• death of a citizen who is a trustee, recognition of him as incompetent, partially incapacitated or missing, as well as recognition of an individual entrepreneur as insolvent (bankrupt);
• refusal of the beneficiary to receive benefits under the agreement, unless otherwise provided by the agreement;
• refusal of the trustee or founder of the management to carry out trust management due to the inability of the trustee to personally carry out trust management of the property;
• refusal of the management founder from the agreement for other reasons, subject to payment to the trustee of the remuneration stipulated by the agreement.

2. If one party refuses a property trust management agreement, the other party must be notified of this three months before termination of the agreement, unless the agreement provides for a different period.

3. Upon termination of the agreement, the property under trust management is transferred to the founder of the management, unless otherwise provided by the agreement (Article 1024 of the Civil Code).

4. The contract is also terminated upon expiration of the contract, since the contract is characterized as a fixed-term contract.