Compensation to shareholders for late delivery of apartments under the DDU

Recently, issues of shared-equity construction have been of keen interest to residents of Russian cities, since purchasing housing under a shared participation agreement has become the only opportunity to acquire their own housing in the face of a significant increase in housing prices

In this article, we will consider the procedure if the developer delays the delivery of the house, the procedure for calculating and collecting penalties for delay in shared construction.

Violation of the deadline for putting the house into operation

The concept of putting a house into operation as such does not exist; it would be more correct to talk about putting the house into operation. People often confuse putting a house into operation and transferring a shared construction project to a participant in shared construction. These are completely different concepts. Putting a house into operation means obtaining permission to put an apartment building into operation, the latter means agreeing with all involved government agencies on the possibility of functioning of the house and its engineering systems.

In practice, the most common situations occur when the Developer violates the deadline for transferring real estate to a participant in shared construction; cases of liability for untimely commissioning of a house do not arise so often.

For a participant in shared construction, the issue of non-compliance with the deadline for handing over the construction project is more important, since the developer does not have the right to hand over the project without putting the house into operation.

Important!

If there is a delay, the construction participant has the right to recover from the developer a penalty in the amount of 1/150 of the key rate of the Bank of Russia.

Claim pre-trial procedure

The claim procedure for claiming a penalty is a process that is less costly in terms of time and financial resources.

You can find an example of a claim by following this link.

This procedure is also called pre-trial or out-of-court.

The law does not establish mandatory pre-trial dispute resolution requirements.

An exception is cases of collection of a statutory fine of 50% for failure to voluntarily meet consumer requirements, as well as clauses in the DDU itself.

Often the builder is in no hurry to satisfy the claim. Especially when more than 3 years have passed since the date of delay. In this case, the amount of the penalty can reach up to 20-30% of the contract amount .

The relationship between the developer and the shareholder is subject to the provisions of the Federal Law “Law on the Protection of Consumer Rights”.

This law says that identified deficiencies must be eliminated within a reasonable time period, which the shareholder indicates independently in the claim. As a rule, this is 10-14 days.

Sometimes the deadline for responding to a claim may be specified in the DDU. The maximum period for a response is 30 calendar days.

Pre-trial procedure or debate in court?

Responsibility of the developer for late delivery of the house

As mentioned earlier, the developer’s liability for untimely transfer of the property is divided into liability for untimely transfer of the apartment to the shareholder and untimely commissioning of the property.

Responsibility for transferring an apartment to a participant not on time consists of the developer’s obligation to pay the shareholder a penalty in the amount of 1/150 of the refinancing rate of the Central Bank of the Russian Federation (key rate of the Bank of Russia); if the participant in shared construction is a legal entity, then the penalty is collected in the amount of 1/300 of the refinancing rate ( key rate).

Responsibility for untimely commissioning of a facility consists of the need to pay a penalty, which is determined by the contract, and losses caused by these actions.

What to do if the developer delays delivery of the house? (according to 214 Federal Law)

Housing in new buildings for many Russian residents is perhaps the only way to improve their living conditions.
Yes, at the excavation stage it is much cheaper, which is why there is such a high risk of being seduced by favorable conditions from one of the developers. The money was given, several years passed, and still no apartment.

Let's figure out what to do if the developer delays the delivery of the house. How to deal with such a developer? How to protect yourself? This is our new article.

Researching the developer

Important! Please keep in mind that:

• Each case is unique and individual.
• A thorough study of the issue does not always guarantee a positive outcome. It depends on many factors.

To get the most detailed advice on your issue, you just need to choose any of the options offered:

To understand whether it is worth terminating the contract, you need to carefully study the situation in which the developer finds himself. Based on the financial condition of the LLC that the house is worth, you can understand whether it is worth trying to return the money, or perhaps it is worth waiting.

• Go to the general meeting of shareholders, listen to what the developer’s representatives say. If they claim that their difficulties are temporary and provide adequate arguments in their defense, then it may be worth giving them a chance.
• If the conversation is absolutely not transparent and comes down to only promises, or even silence, then this is a reason to be wary.

In the second case, it is necessary to monitor the media - local news agencies often publish information that the organization involved in the construction of a house is starting to have problems.

It may be worth going to the Arbitration Court website and studying the developer’s LLC in the file of cases - there you can find out whether the developer is going to go bankrupt.

If the situation is not in your favor and you understand that the house will not be completed, you need to start understanding the legal field and try to terminate the contract and return the money.

Legal requirements

First you need to study the legislation. There are several situations in which equity holders may find themselves:

According to Federal Law-214

If you entered into an equity participation agreement, then the situation is not as bad as it seems. You are protected by law, including the right to terminate the contract and return money, including the return of penalties. The process is regulated by Art. 9 214-FZ.

It is worth understanding that the agreement can be terminated on the initiative of the shareholder only if there are compelling reasons. The delay in delivery of a house for more than two months is a fairly compelling reason from the point of view of the law.

In addition, another reason in your case may be the actual impossibility of completing the construction of an apartment building within an objectively realistic time frame.

This means that even if you signed an additional agreement to extend the deadline for handing over the house with the developer, the contract can be terminated if it is objectively clear that the house will definitely not be able to be completed within the remaining period, observing all technological requirements. Feel free to terminate the equity participation agreement if there is a delay in delivery of the house under Federal Law 214

For housing cooperatives

What to do if the developer delays the delivery of the house, and you have signed an agreement with the housing cooperative? The situation is much more complicated than it seems. On the one hand, 214-FZ protects all citizens whose money was raised for the construction of a residential building.

On the other hand, agreements with housing cooperatives may contain additional clauses about what a shareholder (and this, unlike a shareholder, has a completely different legal status) can do in the event of a delay in delivery of the house.

In any case, termination of the contract occurs at a general meeting or through an official letter to the developer.

Carefully study the conditions for leaving the housing cooperative. The contract may stipulate that the housing cooperative, upon termination of the contract with it, retains the money paid in the form of compensation

By bills

If the developer is delaying the delivery of the house, and you are wondering what to do with the preliminary share participation agreement, then we have bad news for you. A preliminary agreement or bill of exchange is a completely different form of relationship between a citizen and an organization, and no provisions of 214-FZ apply.

You can go to court with a request to terminate such an agreement, but in fact, most likely in court you will receive a waiver of your claims, since such an agreement may not have legal force. You will have to contact the police and ask to open a case of fraud. The chance of getting your money back in such a situation is minimal.

Algorithm of actions

If you purchased an apartment under 214-FZ and the developer delays the delivery of the house, then the most reasonable thing to do is to collect a penalty from the developer and begin the process of terminating the contract. Termination occurs in several steps:

• First you calculate the penalty
• After this, write a claim to the developer demanding that you return the money paid under the equity participation agreement, as well as a penalty for the use of your money
• If the developer refuses to follow a peaceful path, then file a claim in court

Calculation of penalties

The amount of the penalty, if the developer refuses to resolve the issue amicably, will be determined by the court, but for a claim it is still better to calculate the amount yourself.

So, you need to know a few numbers:

• Number of overdue days - find in the share participation agreement the expected date for handing over the keys to the finished apartment to you. Count down the number of days until today.
• Find out on the official website of the Central Bank of the Russian Federation the key rate on the day the penalty is calculated and the application is written to the developer
• Find the full cost of the apartment in the shared participation agreement.
• If you paid interest on your mortgage, then calculate that too - the full amount of interest paid can be calculated using payments from the bank or taken from your mortgage manager

You need to multiply the contract price by the key rate, then multiply by a factor of 1/150 if you are an individual, or by 1/300 if you are a legal entity. Multiply the resulting amount by the number of days. Let's look at it with an example.

You paid 1 million rubles under the remote control agreement. The key rate on the day the claim was written was 8.5%. You are an individual and the delivery of your house is 100 days overdue.

1 million x 1/150 x 8.5% x 100 = 56,666 rubles - this is the amount you can demand from the developer for 100 days of delay

Claim

A pre-trial claim is a document with which you contact the developer and demonstrate that you are ready to resolve the problem in civil relations in a pre-trial manner. It is beneficial for you to write such a claim first - in court this will present you as a conscientious citizen.

Are you wondering what to do if the developer delays the delivery of the house and how to correctly write a complaint? In fact, everything is simple - the claim does not have a form established by law, which means it is written quite freely. Use the basic requirements for all civil documents.

• In the share participation agreement you can find out the name of the head of the organization and its exact name - address the claim to the legal address of the developer
• Write your full name and registration address in the preamble, add a contact phone number
• In the claim itself, write that in accordance with 214-FZ, you inform the developer about the claims against him and demand that the case be resolved pre-trial, namely, to terminate the share participation agreement number such and such and return the money to you, as well as the funds you calculated in as a penalty for the use of your funds.
• Indicate the exact address of the property and add that despite the clause in the contract for putting the property into operation, the developer never fulfilled its obligations
• Indicate to which account the developer should transfer money for the penalty
• Make two copies of the claim - one will be sent to the developer, the other will remain with you

Check out an example of a pre-trial claim on our website ().

• You can submit a claim using a courier - be sure to check whether the courier is aware that such documents need to receive an acceptance stamp. That is, you won’t be able to simply leave papers at the reception.
• You can send it by mail - use the option of sending a registered letter with a valuable inventory, so that, if necessary, in court, you can confirm that you sent the claim. You need to send it immediately to the legal and actual address of the developer
• You can take the document in person - but you need to get a note that the claim was accepted from the secretary or, better yet, from the director himself or the developer’s chief lawyer

Let's go to court

The developer must respond to your complaint within one month from the date of submission. If this does not happen or the developer refuses you, you will have to go to court. Everything is quite simple - we write a statement of claim, pay the state fee, attach copies of documents to the application. You need to contact the court at the place of registration of the developer.

Lawyers are often asked to explain what to do if the developer delays the delivery of the house, a claim is written, and the developer does not respond with either a refusal or confirmation of the fulfillment of your requirements.

Usually this looks like invitations to a meeting with lawyers, where you will be asked in every possible way to waive the claim.

Record conversations with representatives of the developer after sending a complaint using a voice recorder - and also attach transcripts to the application to the court.

• The application to the court is also written in free form
• Please provide your full name, passport details, contact phone number and address
• Write in the subject of the application that you are asking the court to terminate the equity participation agreement between you and the developer, as well as return the money and pay you a penalty in such and such an amount
• Make a copy of the complaint to the developer, a copy of the DDU and other documents
• Confirm with a letter from the developer, a check or other document that you have paid the developer in full
• Bring all documents to the court secretariat

All that remains is to wait for the call to the first court hearing. We recommend suing the developer with the help of lawyers - this is a long and labor-intensive process that requires knowledge of the intricacies of the law for a guaranteed win.

If the contract is not terminated

Let’s assume that you find yourself in a situation where it is impossible to terminate the contract - maybe there is a problem with the housing cooperative or with the preliminary agreement, or the developer, although he formalized the relationship under 214-FZ, is now bankrupt and there is nothing to take from him. Then your path is to turn to the authorities for help.

• You need to contact the Ministry of Construction of your region or the Committee of State Construction and Housing Construction if you live in Moscow.
• Write an application to be included in the register of defrauded shareholders.
• Study proposed solutions

The authorities can try to help you in the following ways:

• Finish the house with the help of a compensation fund to help citizens deceived during shared construction
• Find a new developer, offer him a business plan for completing the house and some kind of land plot on preferential rights - the power to the business is land, the business is completing the construction of a problematic house
• Form your own housing cooperative and take on the completion of the house yourself

If the authorities offer you to build your own housing cooperative, keep in mind that the costs of completing the house, which will be revealed in the future, will fall on the shoulders of the newly-minted shareholders.

Study the financial situation of the house - if it is almost completed, it may make sense to invest another 1-2 thousand rubles per square meter and still get new apartments.

If several tens or even hundreds of millions of rubles are needed for completion, then it is better not to agree to the scheme with the housing cooperative, otherwise you will take on the obligation to pay another 10-20 thousand rubles for each square meter of the apartment - and this is a significant amount.

Still have questions on the topic Ask a lawyer

Source: https://viplawyer.ru/chto-delat-esli-zastrojshhik-zaderzhivaet-sdachu-doma/

Penalties for late delivery of an apartment to a shareholder

As noted, the amount of the penalty is calculated based on 1/300 of the refinancing rate (key rate of the Bank of Russia) for legal entities and 1/150 for individuals.

However, in practice, problems often arise with the calculation of penalties. So, in order to correctly determine the amount of the penalty, you need to determine the number of days of delay. The deadline for transfer of an object occurs on the next day on which the object should have been transferred. For example, the contract states that the object must be transferred no later than October 20, 2020. In this case, the period of delay begins to run on the next day, that is, October 21, 2015. The end date for accrual of the penalty is determined by the actual payment of the penalty. However, for convenience, the penalty is calculated on the day the claim is sent.

From 01/01/2016, the value of the refinancing rate of the Central Bank of the Russian Federation is equal to the value of the key rate of the Bank of Russia on the corresponding date. Since 01/01/2016, an independent value of the refinancing rate is not established and is not shown on the Bank of Russia website.

That is, further calculations will need to be made based on the key rate data of the Central Bank of the Russian Federation. As of May 2020, it is 9.25%.

Also, to calculate the penalty, you need to know the price of the share participation object, which is indicated in the share participation agreement.

So, to calculate the penalty, we need to multiply the price of the construction project by the number of days the deadline is missed, multiply by the key rate of the Bank of Russia and multiply by 1/150.

For a clearer understanding of the calculation, let's give an example.

For example, the contract price is 1,500,000.00 rubles, and the number of days of delay is 60 days.

The calculation will be as follows:

1,500,000.00*60*9.25*1/150 =55,500 rubles.

Thus, with an object price of 1,500,000.00 rubles and a 60-day delay in delivery, the penalty is 55,500 rubles.

Violation of construction deadlines and their postponement

It may also happen that the developer, who is delaying the delivery of the house, will offer you to sign an additional agreement - a document on rescheduling. Should I agree?

• If rescheduling the date is beneficial to you, for example, you do not have the required amount on hand to pay for the apartment, you can sign a new agreement;
• Typically, such a transaction is unprofitable for the buyer, and since the contract is regulated by the Civil Code of the Russian Federation, you have the right to refuse to enter into an additional agreement. Then, if deadlines are missed, you can count on compensation;
• If you sign a document without wanting to, in the future it will not be possible to hold the developer accountable for violating deadlines - he will be right.

Fig 1.

Violation of construction deadlines and their postponement

No matter how much persuasion they offer you to sign an additional agreement, you have the right not to do so. Moreover, such a deal often turns out to be unprofitable for the future owner of the property.

Video 2.

Delay under an equity participation agreement: should I sign an agreement to reschedule or not?