Statement of claim for the recovery of a penalty under an equity participation agreement

How to collect a penalty from a developer who is delaying the delivery of a house: this question is relevant for those who cannot wait for the cherished act of handing over an apartment in a new building. Meanwhile, this process occurs by analogy, as it has been considered many times by courts of various jurisdictions. The main difficulty in writing an application for a developer is the correct calculation of the penalty. Although no less important is the list of applications that need to be presented to the court.

Legislative regulation

Back in 2005, a special law, Federal Law No. 214, was adopted, regulating the rules for the participation of citizens in shared-equity construction of high-rise buildings. Much attention in this legislative act is paid specifically to the preparation of the DDU, as well as to the information that should be contained in this agreement.

Main provisions of the law:

A mandatory condition for purchasing real estate in a facility under construction is the formation of a DDU; therefore, the shareholder is not allowed to sign any other agreements, even if the developer insists on it.
Other contracts are not subject to the rules specified in Federal Law No. 214.
If the rights of citizens are violated, they can collect a penalty from the developer.
When calculating this payment, information from the contract itself or the refinancing rate established at the time of the violation on the part of the developer may be used.

A mandatory point is that the DDU must be drawn up exclusively in writing. Its registration with Rosreestr is mandatory.

What should be included in the contract

Each person planning to participate in the construction of an apartment building should carefully study the agreement drawn up with the developer to make sure that it contains all the necessary provisions relating to the purchased housing. Many companies can use a variety of tricks with the help of which it will be impossible to collect a penalty from the developer, regardless of what violations he has committed.

The agreement must contain the following information:

Accurate information about the future house and each apartment (its area, address, number of floors and other parameters).
The date on which the building should be put into operation.
Cost of the apartment.
The procedure on the basis of which money must be paid by the shareholder for his future housing.
Warranty period for the apartment.
The methods by which the developer will fulfill its obligations under this agreement.

If at least one of the above conditions is missing, then this is grounds for declaring such an agreement invalid, and there is already similar judicial practice. The developer pays a penalty if standard conditions are violated. Most often this is due to the fact that the property is not delivered on time.

The agreement may specify the amount of this payment, and if for some reason it is missing, then you will have to use the refinancing rate at a specific point in time for calculation.

Rules for writing a claim to a developer for payment of a penalty

When filing a claim for payment of a penalty to a shareholder from a developer, a citizen must adhere to the following rules:

Collection of a penalty from the developer under the DDU - how to collect it if it is not specified in the contract

Write your message in a formal business style. Avoid jargon, expressive language or offensive language towards the developer.
Visually divide the claim into 3 parts: introductory, main and final.
In the introduction you need to create a “header”. It should be located on the opposite side, in the upper corner of the A4 sheet.
In the header, be sure to fully indicate the addressee of the legal entity to which you are submitting the claim. It can be found in the contract.
Information about the applicant should also be indicated there, that is, write about yourself - full name, contact and address information.
Next, write down the name of the document. In our case, you must capitalize “Claim.” Do not use quotation marks or a period after a word - these are typical mistakes.
The title will be followed by the main part. In it, you must record the entire “history of acquaintance” with the developer (address of the building, living space, contract number, when it was concluded, under what conditions, with whom, etc.) and the problems that arose (the deadline for the project was missed, violations were not eliminated etc.).
In the main part, be sure to write down that you have fulfilled all the conditions according to the agreement concluded with the developer. Please refer to copies of receipts if you have made payments.
All negative circumstances and violations on the part of the developer must also be confirmed.
Indicate on what grounds the developer must pay you, as a participant in shared construction, a penalty or other compensation.
Indicate the exact amounts and amounts that the developer must pay you. Give an example of a calculation.
Payment requirements must be clearly and understandably stated.
Write what liability and consequences may arise for the developer if he does not comply with the requirements for payment of the penalty. For example, you will be forced to resolve the issue through the courts.
It is better to indicate the requirements in the final part, as a list. Be sure to state in what amount the company must pay you a penalty and for what period.
If no documentation was signed and the developer did not fulfill the obligations to transfer the object, then the requirements should include an important request for the execution of a transfer deed for the shared construction object and transfer it into ownership of the participant in the shared construction.
In the final part, be sure to indicate the bank details by which you can transfer the amount of the penalty and other compensation.
Add your signature.
If your interests are represented by a legal representative, then he signs.
Set the date when the claim will be sent to the developer.
It is better to make several versions of the claim. If you send it by mail, then one copy will be enough. And if you communicate directly, personally with the developer, you can provide several options. You must give one copy to him, and keep the other, signed by him, as confirmation of your application.

Please note that any documents that you attach to the claim may not be included in the contents of the document. It is enough to simply transfer a copy of them to the developer.

All important information regarding the violation of the deadline should be indicated in the complaint. Then, if you receive a refusal from the developer, you can attach this appeal and refusal to the claim.

Responsibilities of the developer

The company that is constructing the facility and with which the contract is concluded must fulfill all the conditions specified in the contract.

Responsibilities of the developer:

The facility must be put into operation within the established time frame specified in the agreement.
After the project is completed, the apartments are transferred to the shareholders.
The construction process can be carried out on its own or with the involvement of third-party companies specializing in the construction of various objects. This information is reflected in the document.
It is the developer who bears various risks if for some reason the building is damaged or completely destroyed.

All shareholders can monitor the performance of the construction company’s duties by checking various documentation. Shareholders also have the right to control the progress of work at the construction site. If there are various violations, then citizens may collect a penalty from the developer.

Responsibilities of shareholders

Construction participants must also remember their responsibilities towards the construction company. These include the need to timely transfer money for the object. All terms are specified in the contract itself.

After the facility is put into operation, it must be accepted. If violations are also recorded on the part of shareholders, then developers can use different methods of influence.

Federal Law No. 214 provides effective protection for shareholders, so they can not only recover a penalty, but also use other methods. Under certain circumstances, shareholders may terminate the agreement without the developer's consent.

How to calculate the amount of the penalty

When rescheduling the delivery of housing, a citizen has the right to demand compensation for the overdue time. To calculate the amount of the penalty, you should use the formula: Сн = Кд * 1/300 Ср * Сд * К,

where Сн is the amount of the penalty;

Kd - days of delay;

Ср - refinancing rate at the time of fulfillment of the obligation (from 03/26/2018 - 7.25%);

Сд — price of DDU;

K is a coefficient that takes the value 2 for individuals and 1 for legal entities.

Example. The cost of the purchased apartment in the preschool building is 2.2 million rubles. The commissioning date specified in the contract corresponds to the 4th quarter of 2020. The apartment was not transferred to the shareholder after the completion of the 1st quarter of 2020.
In this example, the date of planned transfer of the apartment is considered to be 12/31/2017. The calculation is made as of 04/10/2018. The penalty period is 100 days.
CH = 100 days * 1/300 * 7.25%/100%* 2,200,000 rubles = 106,333 rubles.

In case of failure to fulfill obligations regarding detected deficiencies in residential premises, penalties are charged (Article 7 of Federal Law No. 214) in the amount of 1% (Article 23 Law “On Protection of Consumer Rights”):

from the cost required to eliminate deficiencies when the housing is recognized as suitable for habitation;
from the price of the DDU agreement when it is established that it is impossible to stay in the apartment.

Example. Defects in the purchased apartment worth 2 million rubles were discovered on January 25, 2018. After 2 weeks they were completely eliminated. The cost of repair work amounted to 25,000 rubles.
In this situation, the apartment is considered suitable for living, so the penalty is calculated based on the amount spent on repairs.
CH = 25,000 rubles * 1%/100% * 14 days = 3,500 rubles
If a situation arises when it is impossible to live in the apartment without eliminating the defects, then the calculation will be made based on the amount specified in the DDU.
CH = 2,000,000 rubles * 1%/100% * 14 days = 280,000 rubles.

When should objects be delivered?

All terms on the basis of which apartments must be transferred to equity holders are indicated in the DDU. This agreement is the same for all citizens taking part in the construction of a high-rise building.

Often, for objective reasons, companies cannot meet the deadline. If the developer can prove that it is really not his fault for such results, then he warns shareholders two months in advance that there will be delays in accepting the property for operation. The notice proposes to draw up an addition to the agreement, on the basis of which the previous period will be extended.

If this condition is not met, a penalty will be collected from the developer.

For what reasons do problems arise?

Failure to meet deadlines for delivery of an object may be due to various reasons, which include:

Lack of cash from the company.
Materials or equipment are not delivered on time.
Weather conditions are not suitable for the planned work.
The developer declares himself bankrupt.
The company is bought out by another organization.

The grounds may arise due to the fault of the company or in its absence. If the company proves through the court that it could not influence the reasons for the delay in construction, then no penalty will be charged.

Algorithm for collecting funds

If shareholders are faced with the fact that the delivery date of the object is delayed, but there was no notification about this, then they can count on a penalty. The process itself is divided into stages:

A calculation is made, on the basis of which the optimal payment amount is determined.
Initially, a claim is filed against the developer for payment of a penalty.
A decision on the eligibility of the penalty is awaited.
A lawsuit is filed if the developer ignores the rights of the parties to the contract.

Shareholders can seek recovery of funds on the basis of Federal Law No. 214, Art. 310 Civil Code and Art. 3 GPC.

The procedure for collecting penalties from the developer

The above are the opportunities that the legislator provides to participants of the DDU. In practice, the following must be taken into account:

Courts tend to limit the amount of the penalty;
Representatives of Themis are reluctant to read the terms of the DDU;
Premature filing of a claim may result in the initiation of bankruptcy proceedings against the developer.

For example, in the example discussed above, there is a high probability that the court will limit the claim for payment of a penalty to 50 thousand rubles. As for premature application, the shareholder needs to carefully study the company’s situation. It is quite possible that the delay is due to temporary difficulties; the delay in delivery of housing will be 3-6 months.

If DDU participants file lawsuits en masse against the construction company, this will cause additional financial burden on the developer. For example, 50 such claims in the case described above (but only for three months) is a total penalty of over 4 million rubles. Additionally, this amount can be increased by 1.5 times, taking into account other requirements.

How is payment calculated?

The request for a penalty from the developer must contain information about its amount, so the shareholders themselves must first start making calculations.

The amount of the penalty in the absence of the necessary information in the contract is determined as 1/300 of the Central Bank refinancing rate. It is necessary to use information about this rate on the day when a lawsuit is filed or a claim is filed with the developer.

If the shareholder is an individual, then under Art. 6. Federal Law No. 214 a double penalty is charged.

Peculiarities of filing a claim in court for the recovery of a penalty under the DDU

A statement of claim to the court for the recovery of a penalty under an equity participation agreement is drawn up according to almost the same rules as a claim.

But there are distinctive features.

In order to correctly, from a legal point of view, file a claim in court, you must adhere to the requirements of Article 131 of the Code of Civil Procedure of the Russian Federation - and the following recommendations of lawyers:

The claim must be filed in a strictly official style.
Errors, blots, and corrections are prohibited in it, otherwise it will simply not be accepted at the court secretariat.
The application must be printed or handwritten on an A4 sheet.
The claim must have 3 parts: introduction, content and conclusion. Each part has its own information.
The introduction should have a header. Indicate in it the name of the court to which you are filing the claim, as well as the initials, address and contact information of the plaintiff and defendant. If third parties are involved in the case, then their details are also indicated.
Place the “header” on the right side of the sheet, in the upper corner.
Write the title of the document in the middle of the line. You can simply write: “Statement of Claim.” If you want to write it down, then “Statement of Claim for the recovery of penalties under an equity participation agreement.” Do not use periods or quotation marks in the title.
In the content part, describe the entire situation that has developed with the developer.
Be sure to indicate all violations committed by the developer.
If you sent him notifications, letters, claims, then it is very important to inform the court about this. The pre-trial procedure for resolving the issue is important.
Do not forget about the details of the main agreement, receipts and other papers that can confirm your fulfillment of obligations as a participant in shared construction, as well as the developer’s refusal to fulfill his obligations.
In the claim, you can give an example of calculating the amount of the penalty, or you can draw up the calculation on a separate form and attach it to the statement of claim.
All correspondence with the developer can also be submitted to the court for consideration if it contains important information about rescheduling, etc.
Finally, state your requirements. They must be clear. The amounts must already be calculated and recorded in the total amount.
Attach to the claim all documents proving the fulfillment of the obligation under the DDU. Do not forget to attach documents that confirm the execution of financial transactions and the amount of payments. You can request them from the bank.
List the documentation at the end of the claim.
Details do not need to be included in the claim. You will have to submit them to the FSSP department. The bailiffs themselves will collect from the developer to the account you specified.
Be sure to include a date at the end of the claim.
The plaintiff must sign. If a lawyer, lawyer or legal representative applies, he signs and attaches a notarized power of attorney to the documents.
Prepare the statement of claim in several copies, depending on the number of participants in the case. One copy for the court, another for the defendant, and a third for you. Your application must be signed by the court clerk to confirm acceptance of all documentation.

If you do not want to independently write a claim to the court for the collection of a penalty, and even more so - directly, personally communicate with the developer, contact our lawyers.

They will file a claim for you, and will also help you develop a strategy for protecting your rights in court.

Calculation example

Let's look at an example of how the amount of the penalty is calculated. The shareholder is an individual, so 2/300 of the refinancing rate is charged. On the day when this case is considered, the rate is set at 7.75%. The apartment has a cost of 2.3 million rubles. The delay itself is equal to a year, so the due date was overdue by 365 days.

Under such conditions, the penalty will be as follows: 2,300,000 x 365 x 2/300 x 7.75/100 = 433,742 rubles. Due to long delays, a significant amount of funds is accrued. And if many shareholders have such a problem, the developer is obliged to pay money to all of them. Therefore, if there is a delay, the company often offers shareholders the opportunity to pay without going to court with a smaller amount. Citizens have the right to decide whether they will go to court or agree to the developer’s proposal.

Calculation of the amount of the penalty for individuals and legal entities

The amount and procedure for calculating the penalty can be established at the legislative level by the relevant regulatory act or an agreement concluded between the developer and the customer.

Article 6 of Federal Law No. 214 defines the procedure for calculating penalties if the developer violates the deadline for transferring the construction project, that is, if there is a delay in fulfilling the obligation.

Part 2 states that:

In case of violation of the deadline stipulated by the contract, the developer pays the participant in shared construction a penalty (penalty) in the amount of 1/300 of the refinancing rate of the Central Bank of the Russian Federation in effect on the day of fulfillment of the obligation, from the contract price for each day of delay.
If the participant in shared construction is a citizen, then the stipulated penalty is paid by the developer in double amount.
Due to the evasion of a participant in shared construction from signing a transfer deed or other document on the transfer of a shared construction object, the developer is exempt from paying a penalty if the developer fulfills all of his obligations under the contract.

Is it worth concluding a preliminary agreement for the purchase and sale of an apartment in a new building, and how to secure the transaction as much as possible?

Also keep in mind that when calculating you should know the following important indicators:

The date of signing the transfer deed (the actual date of transfer of the object).
The date of transfer of the object, specified in the terms of the contract.
The amount of the penalty as a percentage of the refinancing rate. We indicated it above.
Contract price.

If you know the above indicators, you can calculate the penalty yourself.

Please note that the formula for calculating penalties for an individual and a legal entity will be different.

Formula for calculating penalties for an individual:

H = SD x 1/300 x SR x DP x 2

Where:

N – amount of penalty under DDU.

CD – contract amount.

SR – refinancing rate.

DP – number of days of delay.

2 – double the amount of the penalty (fine) provided for in the case where the participant in shared construction is a citizen (Part 2 of Article 6 of Federal Law No. 214).

If the shareholder is a legal entity, then the formula is different:

Formula for calculating penalties for a legal entity

N = SD x 1/300 x SR x DP

Where:

N – amount of penalty under DDU.

CD – contract amount.

SR – refinancing rate.

DP – number of days of delay.

As a rule, difficulties arise with determining the period of delay.

If you have any questions, you can contact our lawyers with all the documentation. A specialist will help you correctly calculate the amount of the penalty that the equity holder is entitled to from the developer.

Rules for pre-trial collection

Before going to court, a claim must be made to the developer for payment of a penalty. This stage cannot be skipped, since the court will definitely require evidence of an attempt to resolve the issue peacefully.

The process of pre-trial resolution of such a problem is divided into stages:

Preparing a claim. Below is a sample of it. The developer pays the penalty based on the information from this document. In this case, the problem that has arisen is resolved voluntarily.
The claim must include references to laws, as well as include excerpts from the contract itself.
The document is drawn up in two copies. One document is handed over to the company, and the other is marked with acceptance, after which it remains with the citizen.
To ensure that such a claim is filed correctly, it is recommended that you seek the assistance of an experienced attorney.
The document must contain the correct calculation of the penalty. Often, the DDU provides for additional payments, which can also be recovered from the developer.
The point is indicated that citizens suffered losses due to a delay in the delivery date, as they were forced to rent housing.
Together with the claim, a package of documents is submitted to the developer. It includes a copy of the shareholder’s passport, a copy of the DDU and documents confirming the payment of funds for the apartment.
Documents must be sent with a description of the contents and a notification of delivery. You can also visit the company office to hand over the papers to the secretary.

When contacting the developer directly, you must request that a special mark be placed on the second copy of the claim to the developer. Penalties must be paid based on the information from this document.

How to collect a penalty from a developer for delays under the DDU out of court?

It is possible to collect a penalty from the developer not only through the court. When faced with the problem of late delivery of a shared participation property, do not rush to file a claim in court. Perhaps in your case there is a faster way to resolve a dispute with the developer.

This method is based on an accurate calculation of the amount of claims. Information on how to calculate penalties for failure to deliver a project on time is contained in Federal Law No. 214-FZ “On participation in shared construction.” How to correctly calculate the penalty for DDU, read from our special material.

The most important thing is to correctly determine the date from which the calculation must begin. The share participation agreement specifies the period by which the developer undertakes to transfer the property. For example, the DDU states that the developer undertakes to construct and transfer the shared participation facility in the first quarter of 2020. This means that it must be transferred before 04/01/2019. The penalty will be counted from the next day (04/02/2019) until the transfer of the object according to the acceptance certificate.

The penalty is calculated from the number of days of delay multiplied by 1/150 of the Central Bank refinancing rate and the cost of the object. Since real estate prices in Russia are high, even one month of delay can result in a decent amount.

Correct collection of penalties from the developer always begins with filing a claim.

Making a claim

Federal Law No. 214 of December 30, 2004 “On participation in shared construction” does not contain the obligation to comply with the claims procedure in resolving disputes with the developer. However, the rules of the Civil Code of the Russian Federation and Federal Law No. 2300-1 of 02/07/1992 “On the Protection of Consumer Rights” recommend first sending a written claim to the developer. Moreover, clause 6 of the Federal Law “On the Protection of Consumer Rights” allows the shareholder, subject to the claim procedure, to recover from the developer, in addition to the penalty, 50% of the fine of the amount awarded by the court in favor of the consumer.

To recover this fine in court, it is necessary to prove that an attempt to resolve the dispute peacefully was made according to all the rules, but was not successful.

In addition to collecting penalties and fines, the consumer has the right to compensation for moral damages and losses incurred (lost profits) (Article 15 of the Civil Code of the Russian Federation). Such losses in particular include payments for forced rental housing. But such losses will need to be proven in court.

The claim must indicate:

The date when the developer was supposed to transfer the apartment;

Articles of Federal Law No. 214, Federal Law No. 2300-1 and the Civil Code of the Russian Federation, which were violated by the developer;

The amount of the penalty for late fulfillment of the obligation;

Your demands to pay a penalty;

Details for transferring the penalty.

The claim is drawn up in two copies, you will give one to the developer, and the second will remain with you.

The claim should be accompanied by a calculation of the penalty, copies of the share participation agreement and documents confirming the fact of payment for the apartment. The claim against the developer must be drawn up in competent legal language. Only in this case will it have a significant positive effect. To file a claim, it is better to seek help from a professional lawyer. A DDU lawyer, whom you can learn about from our previous article, will help you competently file a claim against the developer.

Filing a claim with the developer

A claim can be submitted to the developer in two ways:

by personal submission;
sending a claim by mail.

If you are filing a claim in person, then it should be taken to the developer's office. In this case, one copy of the document is transferred to an authorized person, and on the second, this person must put the stamp of the enterprise, his signature and the date of acceptance.

If the claim is sent by mail, the entire package of documents is sent to the developer by registered mail with acknowledgment of receipt. In this case, you should save the receipt and inventory of the investment.

No matter how you file a claim with the developer, he has only 10 days to consider it. The days are counted from the moment the developer receives the claim. In the absence of constructive proposals from the developer, the only way to resolve the issue is through litigation.

How to make a correct claim?

An example of collecting a penalty from a developer through a claim is presented below.

When drawing up this document, the following requirements are taken into account:

The company name is spelled out exactly. Information can be taken from DDU.
The registration details of the agreement are indicated.
All the requirements of the applicant are given, on the basis of which a penalty is collected from the developer under the share agreement.
Various explanations are provided for the calculation of this amount.
All documents attached to the claim are described separately.
The date of submission of the application and the signature of the citizen are indicated.

A refusal to assign a penalty may be due to the lack of information about the applicant in the document.

The sample claim to the developer for a penalty is drawn up as clearly and conveniently as possible. It is only necessary to enter information about the citizen in the existing form. There is no need to use any unified documents, so it is possible to write an application in free form.

Claim against the developer for a penalty

First you need to determine the culprit . Look at the shared participation agreement to find out the executor under the agreement (developer). Next, you need to go to the tax office website and find an extract (at https://egrul.nalog.ru/, enter information about the developer - you will receive up-to-date information, including the current address).

A claim is written to the specified address, starting with the header: you need to indicate the name and address of the developer and your details (full name, address, telephone). Example of a claim:

Important! Date the claim and send it to the address (from the extract, not from the contract) by registered mail. You can register a copy of the claim at the developer’s office: your copy must be signed by the developer’s manager or a staff member (secretary, for example) and dated receipt.

If after 10 days the money is not transferred to you, file a claim to collect a penalty from the developer.

Preparation of a claim and other documents

A statement of claim for a penalty against the developer can be drawn up independently or by an invited lawyer. The document must contain the following points:

Request for the recovery of penalties and payment of compensation for moral damage.
Name and address of the court where the claim is filed.
Full name of the plaintiff and his registered address.
Information about the defendant.
The nature of the violation of the rights of shareholders, as well as all their demands are listed.
Justification of requirements by legislative acts.
Official documents confirming the eligibility of the shareholders' claims.
Information about the price of the claim, and it should not be spontaneous. Therefore, the penalty and other payments, if necessary, are correctly calculated in advance.

The claim is accompanied by other documents, which are presented by the DDU, payment papers, receipts for payment of state fees and correspondence with the developer. If there is no evidence that the shareholder tried to solve the problem in a pre-trial manner, the court will refuse to accept the claim.

Going to court

First you need to collect documents that will be attached to the claim:

DDU;
all receipts for payment of shares;
claim (certified or with a postal receipt attached);
printout from the website (extract about the developer - see above).

Now let's decide which court to go to . Since shareholders are equated by law to consumers, you can choose to apply to one of the courts located at:

location of the developer;
your residence or registration;
construction.

Documents submitted to the court:

3 copies of the application;
2 copies of all applications;
copy of the passport.

Important! Shareholders are not required to pay a state fee to the court if the total value of the claim is less than a million rubles.

If you count more, advice: first you can file a claim for a million, calculating the penalty for a certain date so that it is not more. Afterwards, you can file a claim to collect the penalty from the designated date and so on as many times as you like until the developer pays for the entire period of delay.

According to the norm of Article 9 of the 214th Law, a shareholder has equal rights to a consumer if he builds an apartment for living in it. And according to the law on the protection of consumer rights, for violation of rights, you can ask the court to recover moral damages. However, you should not present moral suffering expressed in exorbitant amounts. Of course, you can ask for millions, but the judge will recover damages within reasonable limits. In practice, this is from 15 to 100 thousand rubles (study the practice of your court and you will understand what to expect).

In addition, if you have not received the money within ten days from the date of filing the claim, then the courts will also impose fines in favor of consumers for failure to comply with legal requirements (according to the norm of Article 13 of the law on PPP), and this is half the penalty!

Which court should I go to?

A claim is drawn up and submitted to different courts:

At the place of registration of the construction company.
At the place of residence of the plaintiff.
At the place where the contract was drawn up between the two parties.
According to the location of the object being built.
If the amount of the penalty does not exceed 50 thousand rubles, then the case is heard in the magistrate’s court.

The developer's penalty may be reduced if its size is not commensurate with the damage caused. Therefore, it is important to correctly approach the calculation of this payment.

Filing a claim

First, you need to decide to which authority the application is being submitted. Many people confuse the jurisdiction of the authorities and submit documentation to the wrong place. Disputes between entrepreneurs and legal entities are resolved through arbitration court. Individuals, in turn, must submit a petition to the city (district) court.

The primary reason for going to court is the company's unwillingness to be held accountable for its violations. The absence of a result in the pre-trial settlement of the conflict gives the shareholder grounds for filing a claim. In this case, the petition is submitted to the office of the authority located at the plaintiff’s place of residence. It is also possible to contact the authority operating at the location of the object (new building) or at the legal address of the developer. Before filing an application, experts recommend familiarizing yourself with the judicial practice of various authorities. The results of consideration and award of specific amounts may vary significantly.

Only the organization that is indicated as the legal entity responsible for the construction can act as a defendant. At the same time, other companies may be named in the DDU. In order not to file a claim with the wrong organization, it is recommended to check the information with the issued permit. The latter allows you to accurately identify the second party involved in the trial.

The plaintiff is the citizen who signed the DDU. If there are several of them, then everyone must apply for payment of a penalty and compensation for losses. It is worth noting that class action claims are not recommended by lawyers. This is explained by the practice of similar processes. Most often, one of the applicants simply does not show up for the meeting. Therefore, the procedure has to be constantly rescheduled, which delays the consideration of the case. In addition, different individuals may make individual demands. Accordingly, their consideration also takes time.

When formulating requirements, it is worth relying on current legislation, in particular Federal Law No. 214, the Civil Code, the law on the protection of consumer rights and the Tax Code of the Russian Federation. Competent substantiation of claims is the key to success when considering a claim. If a person is unsure of his abilities, he can hire an experienced lawyer who will assist in collecting documentation and filing a claim. Consultant fees may vary.

In addition to the application, the citizen needs to collect a package of papers. They are included as an annex to the claim and allow the authority to make an informed decision. These include: a copy of the supplement with attachments; copies of documentation confirming the transfer of funds towards the living space; claim against the developer and notification of its receipt; evidence of losses due to the developer’s inaction.

As a rule, consideration of claims in court takes about 60-90 days. This rule applies only to those cases that are not delayed by the parties. However, in practice the process takes much longer (taking into account the right of appeal).

According to Part 3 of Art. 333.36 of the Tax Code of the Russian Federation, consideration of a claim for the protection of the rights of citizens related to poor-quality provision of services to them in an amount of up to a million rubles does not imply the payment of state duty. Therefore, it is highly discouraged to file a claim for a larger amount. However, there is one trick. If the penalty exceeds 1 million rubles, you can submit two applications for different periods. It is worth noting that such claims can be filed in different authorities, for example, at the place of residence of the applicant and at the address of the defendant. Another option is to submit a claim for an amount of less than a million rubles, and after it is accepted into proceedings, submit a petition to change the requirements with an increase in the penalty and the distribution of state fees to the loser of the case.

Question:

Can the court refuse to pay a penalty?

Answer:

In the process of considering the case, hearing the position of the parties, as well as studying certain aspects related to the claim, the court leans towards the side of the petitioning citizen or defendant. Refusal to satisfy the requirements may occur if the person violated procedural rules or did not provide compelling evidence to establish the guilt of the developer. In the latter case, it will no longer be possible to submit a similar application. For this reason, citizens who are faced with violations of deadlines by companies constructing apartment buildings under the DDU are advised to be well prepared for going to court.

What tricks do developers often use?

Many companies are aware that for various reasons they may delay the delivery of the property, therefore, even when drawing up the DDU, they often use various tricks, on the basis of which in the future they can avoid transferring penalties to shareholders. These include the following:

Instead of the DDU, an investment agreement or other contract is drawn up.
Shareholders are invited to draw up a preliminary agreement for the purchase of an apartment, after which the transaction is finalized three months after the delivery of the property. Under such conditions, citizens are not protected from extensions.
Often a DDU is concluded with the simultaneous purchase of insurance. However, there is a high probability that the extension of the deadline will not be an insured event, so shareholders will not receive compensation for their losses.
Payment can be made through a loan agreement. Therefore, if the deadlines are missed, the developer returns the money with a bill of exchange, on the basis of which you can buy another property from this company.

If the developer is a fraudster, then he can use a scheme for double sales of apartments, with the help of which he can receive additional funds to complete the construction of the property.

People seeking to purchase housing in houses under construction should have a good understanding of how to correctly draw up an agreement with a developer and what information it must contain. If there are violations on the part of the construction company, then citizens can count on a penalty. You need to know how it is correctly calculated and charged. Initially, you need to try to get the money in a pre-trial manner, but if it does not bring the desired result, then the shareholders will have to go to court. To do this, you need to understand the rules for drawing up an application and preparing other documents.