What to do if the developer is late in delivering the house

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In accordance with clause 2 of Article 6 of Federal Law-214 on participation in shared-equity construction of apartment buildings:

In case of violation of the deadline stipulated by the contract for the transfer of a shared construction object to a participant in shared construction, the developer pays to the participant in shared construction a penalty (penalty) in the amount of one three hundredth of the refinancing rate of the Central Bank of the Russian Federation, valid on the day of fulfillment of the obligation, of the contract price for each day of delay. If the participant in shared construction is a citizen, the penalty (penalty) provided for in this part is paid by the developer in double the amount.

The penalty must be calculated starting from the day following the date on which the developer was supposed to transfer the apartment under the transfer and acceptance certificate. The share participation agreement often specifies the date of putting the object into operation, and shareholders mistakenly rely on this date. For example, the contract specifies that the facility be put into operation no later than the 4th quarter of 2021. But further in the text it is said that the apartment is transferred to the participant in shared construction within a year from the date the facility was put into operation.

In the above example, the penalty should be considered starting from January 1, 2021, even if the developer delayed the commissioning of the facility by a year, and put the facility into operation on December 31, 2021 and on the same day transferred the apartment under the acceptance certificate.

Legal assistance will help to collect a penalty from the developer.

Calculation of penalties

You can make your own penalty calculation here

Note!

when calculating the penalty, it is necessary to take double , and not the key refinancing rate.

Example of penalty calculation:

The cost of the apartment is 5,000,000 rubles

Number of days overdue - 100 days

Current refinancing rate (January 2021) - 4.25%

5,000,000 * 100* 4.25% * 1/300 * 2 = 141,666 rubles

This amount is due to you by law, but in fact the courts reduce this penalty by applying Art. 333 Civil Code of the Russian Federation.

We count the size

How to calculate the penalty for late delivery of a purchased apartment in an apartment building, what kind of legal compensation is due to the shareholder for the delay in putting the new building into operation and transfer of housing? Let's do the math.

The penalty for late delivery of housing is calculated according to the formula defined by law, which is specified in Art. 6 Federal Law No. 214-FZ. The amount of the penalty is one three-hundredth of the refinancing rate (key rate) established by the Central Bank of Russia for each day of delay, multiplied by the price of the DDU and multiplied by 2 (two) - provided that the shareholder is an individual - that is, a consumer. And if this is a legal entity or an individual entrepreneur, then the amount of the penalty is determined by the same formula, but without multiplying by 2 (two).

Thus, the formula for calculating the penalty includes four figures:

Contract price (in rubles) – the amount specified in the DDU, paid to the developer
Key rate (in %%)
Number of days of delay (delay in transfer of shared construction object)
Multiplier 2 (two) – if the shareholder is an individual

Let's look at the calculation of late penalties using an example. The price of the object under the contract is ten million rubles. The delay in delivery of a house during shared construction is 90 days. Let's assume that on the day the overdue period expired the key rate was 4.5%. To calculate the amount of the penalty, you need to multiply the Contract Price by the key rate, multiply by 90 days, multiply by 2 (two), then divide by 300. Thus: 10000000*4.5%*90*2/300 = 270 thousand rubles.

Article 333. Reduction of penalties

If the penalty payable is clearly disproportionate to the consequences of the violation of the obligation, the court has the right to reduce the penalty.

The courts actively use this right, and in practice, getting 100% of the penalty prescribed by law becomes a difficult task. posted here that will help you understand what kind of penalty you can actually claim. This must be understood first of all in order to competently negotiate with the Developer, because the latter are well aware of what kind of penalty people actually receive in court. If, according to the above calculation, you receive a penalty in the amount of 233,333 rubles and you expect to receive approximately the same amount voluntarily, then your negotiations are doomed to failure. Over many years of work, we have not met a single developer who voluntarily satisfied the demands of the shareholder for at least 90% of the requested penalty.

Look at real solutions and you will understand why developers are in no hurry to voluntarily satisfy your requirements. Courts of general jurisdiction do not give very large sums. If a court of general jurisdiction gives you at least 80% of the requested penalty, then you are very lucky. In connection with this approach of general jurisdiction, if possible in your situation, we are trying to transfer the case to arbitration court. As you can see from these examples, in arbitration court you can get 100% of the penalty.

What should a shareholder do in case of delay?

If the developer has delayed the transfer of housing in the house under construction, then the buyer has the legal right to demand:

penalty for delay in delivery of housing or apartments (parking spaces)
compensation for losses incurred by the shareholder due to failure to receive the apartment on time under the DDU (for example, expenses for rent, overpayment of interest on a mortgage loan, increase in the cost of repairs)
compensation for lost profits (for example, if the purchased property was planned to be rented out to generate income)
a fine of 50% of the amount of the penalty (according to the Law on the Protection of Consumer Rights of Russia)
compensation for moral damage caused (awarded by the court automatically, although in small amounts)
reimbursement of legal costs (for example, for lawyer’s services, preparation of documents, payment of state fees when filing a claim in court)
termination of the contract for participation in shared construction

When the delay in delivery of the house exceeds two months, the buyer by law has the right to unilaterally terminate the equity participation agreement and return the entire amount of money previously paid for it with interest for the entire term of the agreement. In order to notify the developer of the planned termination, a corresponding letter is sent. Also, the written notice indicates all the main details of the shared construction agreement (number, date of signing, registration information). The contract is considered automatically terminated on the day the correct notification is sent. After receiving this notification, the developer has 20 working days to pay off all claims of the shareholder on a voluntary basis.

Upon termination of the DDU, any developer undertakes to return the entire amount paid and equal to the contract price. The construction company also pays interest on the long-term use of funds received from a participant in shared construction. The amount of the specified interest is calculated according to the formula - 1/150 of the Central Bank rate for each day, starting from the date of transfer of funds to the company until the day the entire amount is returned back to his bank account.

If the developer requires you to sign a deed

When a house is practically built, but there is no official permission to put the house into full operation, developers sometimes resort to tricks and offer participants in shared construction to sign acceptance certificates in advance. This happens in cases in which the building is completely ready, but the apartments are unfinished, lack water supply or heating, the adjacent common area has not yet been improved, or other deficiencies and shortcomings are discovered. It often happens that the developer proposes to sign the specified transfer and acceptance certificates without indicating a specific date for signing the act, and later puts dates in them retroactively or at the date that is most beneficial to the company itself in order to evade liability.

You should not agree to sign the transfer deed, since this document is considered to have no legal force, that is, invalid. With such an act, the housing will not be registered with the BTI, the buyer will not become the full legal owner and will not receive cadastral and technical passports indicating the exact area in square meters, layout and other parameters of the property. Also, the buyer of real estate will not be able to apply for a property tax deduction.

If a developer forces you to sign a deed in the absence of permission, he will certainly act illegally and contradict Art. 8 Federal Law No. 214-FZ, in order to avoid the collection of penalties and to deceive the participant in the ongoing shared construction.

There is another case, which is also manipulation on the part of the developer in order to reduce the costs of compensation due to the buyer under Law No. 214-FZ. The house is ready and officially completed overdue, and you are going to sign the deed, but in the text of the deed (in the standard form of the deed offered by the company for signing) you see an indication that “the parties do not have any financial or other claims against each other.” By signing the said act, you seem to agree that you will not sue in the future, since you “voluntarily renounced claims against him.” This is what you start thinking after signing the deed. However, such wording in the transfer and acceptance certificate is in fact not valid, does not deprive you of the right to go to court for delays and any construction defects in housing, since such wording in the act is nothing more than a “trick” of the developer, or as is now fashionable to be expressed as an “element of social engineering”, which is often abused by real scammers, artificially creating in the victim the belief that he has no rights to anything. However, developers often use such methods of “interaction” with buyers of apartments in residential complexes and mixed-use complexes. Therefore, you need to be as vigilant as possible and not relax, to attract qualified lawyers to your side to check all the signed documents both when concluding a transaction for the purchase of housing in a new building, and when receiving it under the act upon completion of construction. Unlike realtors, who usually act in the mutual interests of the parties to the transaction, receiving their commission, developers act in the transaction only in their own interests, pursuing only one goal - making a profit, and in the process of achieving this goal they often infringe as much as possible on the rights and legitimate interests of the participants shared construction.

What to do in this case? The most correct thing is to invite a qualified lawyer to negotiate with the developer instead of you and advise you on what documents and what wording you should sign and what not. However, if you are ready to take a risk and do without a lawyer, then you can try to insist on the exclusion from the act of the wording “no claims”, “full compliance of the object with the requirements of the law and the share participation agreement”, etc. - unless you really agree with it. You can also simultaneously prepare and send a claim to the developer regarding the timing and quality of construction, if the deadline has been missed, and the quality of construction does not suit you, and you have demands to eliminate identified deficiencies in the constructed property.

50% penalty in favor of the consumer

For failure to comply with the shareholder's request to pay a penalty, the court may also give a 50% fine of the amount of the claim.

The claim must also include moral damages. You can indicate any amount, but in fact the court gives an amount from 1,000 rubles. up to 50,000 rub. You can count on an amount of 50,000 or more if there are documents indicating moral suffering.

Responsibility of the developer for violation of consumer rights = payment of a fine of 50% of the penalty

If a participant in shared construction, before going to court, made a legal and justified demand to the developer for the payment of a penalty, which was not satisfied voluntarily, a fine in the amount of fifty percent of the amount of the specified penalty must be collected from the developer.
In paragraph 6 of Article 13 of the Law on Protection of Consumer Rights

it is provided that when the court satisfies the consumer's requirements established by law, the court will collect from the manufacturer (performer, seller, authorized organization or authorized individual entrepreneur, importer) for failure to voluntarily satisfy the consumer's requirements a fine in the amount of fifty percent of the amount awarded by the court in favor of consumer. If public associations of consumers (their associations, unions) or local government bodies make a statement in defense of consumer rights, fifty percent of the amount of the collected fine is transferred to these associations (their associations, unions) or bodies.

Losses

If, while waiting for the apartment to be transferred to you, you were forced to rent housing, then the costs for renting housing. can also be recovered from the developer. But in the Moscow region there is a judicial practice according to which if you are registered in Moscow or Moscow Region, then judges, as a rule, refuse to recover damages. This is motivated by the fact that it was not necessary to rent an apartment; you have the right to live at the place of registration. The fact that people actually bought an apartment due to the fact that it is not possible to live at the registration address is, as a rule, not taken into account by the court. The situation is different when registration is not in the nearest region where the apartment is being built, then the courts are more willing to grant damages. In any case, such expenses must be declared. To do this, you must have an agreement and receipts or receipts confirming payment under the agreement.

We can briefly say about the algorithm of actions:

Sending by registered mail with a list of attachments a pre-trial Claim to the developer (mandatory stage, otherwise in the future it will not be possible to collect a fine in the amount of 50% of the awarded penalty);
Submitting a statement of claim to the court if the developer refuses to carry out the actions specified in the claim.

It is better to consult with our lawyers about the choice of a court (a court of general jurisdiction or arbitration) and the choice of territorial jurisdiction, since each court and judge has a certain reputation in legal circles, based on which it is possible to determine the best action strategy to obtain 100% of the declared penalty.

What are the legal grounds for presenting demands to the developer to hold him accountable in connection with violation of the deadlines in the share participation agreement?

In accordance with Art. 10 of the Federal Law of December 30, 2004 No. 214-FZ, in the event of non-fulfillment or improper fulfillment of obligations under the contract, the party that has not fulfilled its obligations or has improperly fulfilled its obligations is obliged to pay to the other party the penalties provided for by this Federal Law and the specified share participation agreement (fines, penalties) and compensate in full for the losses caused in addition to the penalty.

Lost profits due to delays in apartment construction

In accordance with Article 15 of the Civil Code of the Russian Federation

Losses are understood as expenses that the person whose right has been violated has made or will have to make to restore the violated right, loss or damage to his property (real damage), as well as lost income that this person would have received under normal conditions of civil circulation, if his right was not violated (lost profit)

If the person who violated the right received income as a result, the person whose right was violated has the right to demand compensation, along with other damages, for lost profits in an amount not less than such income.

According to the law, it is possible to recover lost profits, but in practice it is very difficult to obtain it; for this you need to be well prepared. For example, you have an apartment and after moving to a new one you were going to rent it out. If the new apartment was not transferred on time, then you cannot rent out your apartment, and according to the law, you can demand recovery of lost profits from the developer.

In order for the court to satisfy a claim for lost profits, you must have written evidence prepared in advance. If we take an example from practice: https://www.sud.ru/praktika/59/1647; In order to recover lost income from renting out premises, you need to have a number of documents.

First, it is necessary to notify the developer that due to the delay in the transfer of the apartment, plans to rent out such and such an apartment are being disrupted, and the lost income amounts to such and such an amount. At the same time, you must have a real tenant who is ready to rent your apartment, and this is better confirmed by email correspondence and a letter of readiness to rent your apartment for a certain price. Such preparations need to be made as soon as the developer begins to be late with the deadlines stipulated in the share participation agreement. There is no point in doing such correspondence retroactively - technical expertise will establish if the documents were prepared on other dates indicated in the documents. Due to the fact that few people take care of such preparations in advance, the courts refuse to compensate for lost profits.

Legal assistance in terminating the contract and collecting penalties from the developer

Practice shows that only a small number of developers who have missed the deadline for commissioning a project due to a delay in its commissioning agree with the demands of shareholders to terminate the contractual agreement.

The participation of a competent lawyer in shared construction on the side of shareholders allows you to quickly and quickly resolve a controversial situation. An experienced lawyer often only needs one fact that the developer violated the commissioning deadline in order to correctly terminate the contract and collect a penalty.

The specialist analyzes the terms of the contract, the actual circumstances and, on the basis of this, forms a further strategy for protecting the interests of the shareholder. The result of such work is the termination of contractual relations with the negligent developer and receipt of compensation from him for violation of the rights of participants in the equity participation agreement.

With respect to you and your business,

legal

Deadlines for transferring apartments under DDU

There are two main terms in a written contract:

Date of commissioning of the house.
Deadline for delivery of living space.

According to the law, the developer company cannot transfer the building to shareholders until permission to enter it has been received.

Transfer time is defined in different ways:

indicating the quarter, for example, “in the 3rd quarter of 2021”, that is, the delay will begin at its end, from October 1;
indicating a specific date - “no later than October 1, 2021”, which means the delay will begin from the next date - October 2, 2019.
Taking into account the receipt of approvals for commissioning, the approximate time frame is indicated - a quarter, and the apartments are transferred to shareholders within a month from the date of receipt of the permit.

It is important that the time specified in the share participation agreements of all residents of the future home is the same for everyone.

Despite the fact that construction companies often write in DDU contracts that the period is not guaranteed, planned, approximate, and can be increased, this does not affect the decision of judges on penalties and fines. Builders simply do not have the right to delay the delivery of housing.

Complete turnkey apartment renovation

Everything is included The cost of repairs includes everything: work, materials, documents.
Without your participation After agreeing on the project, we only bother the owners when the repairs are completed.
The price is known in advance. The cost of repairs is fixed in the contract.
Fixed repair period Turnkey apartment renovation in 3.5 months. The term is fixed in the contract.

Experts from the online manual for buying and selling apartments “Apartment-without-Agent.ru” answer:

If the developer tries to unilaterally postpone the date of putting the house into operation, then he clearly violates the rights of the shareholder as a party to the share participation agreement. The key word here is “unilaterally.”

The Federal Law No. 214, which regulates the relationship between the shareholder and the developer, does have a clause (Clause 3, Article 6, Federal Law No. 214), which provides for the developer’s inability to complete construction of a house within the period specified in the contract. But this clause of the law allows the developer to only notify the shareholder about this incident and offer him to renew the contract with new deadlines for the delivery of the house (or sign an additional agreement to the contract).

In this case, the shareholder is not at all obliged to agree to the new terms of the agreement. Moreover, the shareholder has every right to demand a penalty from the developer for late delivery of the house. The amount of this penalty is equal to 1/150 of the current refinancing rate of the Central Bank of the Russian Federation from the contract price for each day of delay (clause 2, article 6, Federal Law-214).

In practice, developers often include various clauses in the equity participation agreement that soften the strict requirements of Federal Law FZ-214. This is done largely for psychological impact on shareholders and has no legal basis. In this way, developers hope to avoid statutory requirements for the collection of penalties. In particular, the contract may contain a clause on the possible unilateral postponement of the delivery of the house, with notification to the other party two months in advance. And even the condition that if the shareholder disagrees, the developer can terminate the contract unilaterally. All these conditions are illegal, as they contradict the essence of Federal Law-214. The rights of the shareholder here are protected by law, and he can present claims to the developer for a penalty, and if the developer refuses, he can go to court. Practice shows that in such cases the courts take the side of the equity holder.

If the shareholder succumbed to the persuasion of the developer or to the illegal wording of the contract and voluntarily signed an additional agreement to postpone the delivery of the house, then he limited himself in his own rights. Then the new deadline for handing over the house becomes legitimate, and the shareholder will only have to wait.

It’s a different matter if the buyer of the apartment concluded with the developer not an equity participation agreement, but some other type of agreement, for example, a preliminary purchase and sale agreement or a preliminary equity participation agreement. In this case, this removes the development company from the regulation of Federal Law No. 214: the terms of the contract here can be arbitrary, and the rights of the shareholder are severely limited. More precisely, in this case the shareholder is not a shareholder, in the legislative sense.

What is the reason for the massive postponements of construction deadlines in Russia?

What should I do if the developer of my residential complex goes bankrupt?

Termination of the contract due to violation of the deadline for delivery of the house

The Consumer Rights Protection Law makes it possible to refuse to execute a share participation agreement if the developer does not deliver the house on time.

In this case, the construction company is obligated to return the deposited funds no later than 20 days, and also to compensate for the use of funds received from the shareholder by paying interest for the entire period that they were in the developer’s account.

If it is impossible to reach an agreement between the parties, the dispute is considered in court; The right to trial for citizens is established by the Civil Code of the Russian Federation and Federal Law No. 2300-1 (Article 17).

The interest rate for legal entities is 1/300 of the refinancing rate established by the Central Bank of the Russian Federation; for individuals, the amount of payments is doubled.

You can quickly find out the legal position regarding your specific situation by using the 24-hour legal support hotline: