Rules for calculating penalties for DDU according to Federal Law-214
Art. 6 and 9 of the Law “On Participation in Equity...” dated December 30, 2004 No. 214 establish two cases when the developer is obliged to pay a penalty under an equity participation agreement (DPA) in construction. The rules for calculating the penalty depend on the basis for its payment.
- The penalty is payable in case of violation of the terms of transfer of the apartment to the shareholder. According to Part 1 of Art. 6 of Federal Law No. 214, the developer must transfer all apartments of one entrance to the shareholders on the day specified in the agreements with them. In case of failure to fulfill this obligation, the developer pays a penalty for each day of delay, calculated according to the formula from Part 2 of Art. 6 Federal Law No. 214.
- If the developer delays the transfer of the apartment for two or more months, or the house was built with significant violations of building codes, then in these situations the shareholder can unilaterally terminate the DDU. Upon termination of the contract, the developer must return the money paid to the shareholder, as well as pay a penalty for the entire period of use. The calculation formula in this case is determined by Part 2 of Art. 9 Federal Law No. 214.
Is there a need to wait for action from the developer?
From the moment the delay occurs, you have the legal right to collect the penalty in court. You will not need other auxiliary actions to compensate for late fees that are in one way or another related to the developer.
The shareholder does not need to wait for a response to the letter of claim sent to the developer, since it simply may not be expected. The majority of developers do not pay due attention to incoming letters of claim and rely on the ignorance and legal illiteracy of shareholders. Although the developer is obliged to give an official refusal or consent to satisfy the claim within 10 days.
Therefore, a defrauded shareholder should not rely on the integrity of the developer and expect the actual delivery of the apartment, because the terms can stretch for many years, and the fact that the same developer will go bankrupt at the time of delivery of the housing is not excluded.
In addition to the calculated penalty for late delivery of the apartment under the contract, the buyer has the right to demand compensation for losses, in other words, lost profits, referring to Article 15 of the Civil Code of the Russian Federation.
Don’t delay and wait, act, protect your rights in court, and conduct active claims correspondence.
Be careful!
In the event that the delivery period has been delayed for more than 2 months, the shareholder who signed the DDU has the right to terminate the agreement and demand a return of the invested funds. It is possible to receive a penalty for late rent through the court, but a more expedited process is pre-trial proceedings.
Be extremely vigilant about the documents and papers that you intend to sign. Be sure to analyze it and contact a professional to assess its literacy and legal accuracy. Remember that the approaching deadline for the delivery of an apartment property entails an increase in nervousness. The developer is not asleep, he is 100% sure of his inability to fulfill his obligations and all his efforts in this situation are aimed at strengthening his positions. He is ready to make every effort to minimize his financial losses that will follow the payment of late penalties.
What can you do in this case, or rather, you should not agree to sign an additional agreement. agreements to the existing DDU (share participation agreement), which are aimed at increasing the existing term. This absolutely does not need to be done until construction is completed, and also until the acceptance certificate is signed.
Signing additional agreement is only possible if you see a benefit for yourself. An example would be a developer’s proposal to indicate the apartment’s delivery date, taking into account the finishing touches.
When accepting an apartment, you must pay attention to the date indicated in the acceptance and transfer certificate. You should not rely on the developer and the eloquent praises of caring employees who are trying to lull your vigilance and benefit for themselves, regardless of the disastrous consequences for you. Make sure that the act indicates the correct date corresponding to the day of acceptance; you may need to do it in your own hand, in capital numbers, both in the header of the act of acceptance of the transfer, and next to your signature.
At the moment, massive falsification of documents has become widespread, when developers, in pursuit of their own benefit, are not afraid to replace the dates in the Acceptance and Transfer Certificates, indicating a deliberately longer deadline.
We remind you, dear shareholders, that if the apartment acceptance certificate is signed, the developer is not deprived of the obligation to pay a penalty for late delivery of the apartment under the contract and to compensate for losses incurred by the shareholder. And this obligation remains the same if, at the time of signing the act, you indicated that you have no financial claims or demands on the developer. For more detailed information, we suggest you follow the link provided: I’m not ready to provide a link to the corresponding article yet)
Conclusion
Based on many years of practice, it is possible to return your invested funds in case of violation of the approved conditions under the equity participation agreement, but unfortunately, the amount usually does not correspond to that prescribed by federal law.
In order not to spoil your life and not fall for the tricks of unscrupulous developers, you should carefully approach their choice and thoroughly read the terms of the share participation agreement. You should not rush into overly tempting offers, since for the most part this is just a deception.
Shareholders quite often face the problem of delays in delivery of premises.
Developers allow delays in the commissioning of premises by one month, and sometimes by several years.
There were cases when the change was not made at all. Every person who finds himself in such trouble sooner or later finds out that he is entitled to a penalty.
But not everyone knows what size it is. Let us consider in detail the calculation of penalties under an equity participation agreement.
Formula for calculating penalties for DDU
The mathematical formula for calculating the penalty is as follows: The formula by which the penalty is calculated is the same in both cases. However, different data is substituted into it.
For calculations you will need 4 values:
- the amount for which the penalty is calculated;
- the period for which the penalty is calculated;
- the refinancing rate of the Central Bank of the Russian Federation;
- the share of the refinancing rate that is set for each day of delay.
If the shareholder is a citizen, then this is 1/150 of the refinancing rate; if an organization, then 1/300 of the refinancing rate.
How to determine the amount for which a penalty is calculated
In the event that we are talking about violation of the terms of delivery of the apartment, then the penalty, according to Part 2 of Art. 6 Federal Law No. 214, is charged on the contract price, that is, the cost of the apartment. It does not matter whether it is paid in full or in part.
When it comes to termination of the contract, the penalty is calculated on the amount actually paid by the equity holder to the developer. If the money was deposited in parts, then for each part the penalty is calculated separately, since in this situation the number of days of using the funds is different.
For what period should the penalty be calculated?
If the apartment is delivered late, the penalty will be calculated from the day following the day designated in the contract as the day the apartment was handed over. The day the delay period ends is the day the housing is actually transferred to the shareholder.
If we are talking about termination of the contract, then the first day of calculation should be the day the money (part of it) was deposited into the developer’s account, and the last one should be the day it was returned to the shareholder.
What Central Bank rate to use when calculating
The refinancing rate, otherwise called the discount rate (since 2016, the same as the key rate), is the interest rate at which the Central Bank of the Russian Federation provides loans to commercial banks. It is also used to calculate penalties and fines.
The refinancing rate is a fluctuating value that is periodically changed by the Central Bank. For example, during the period from June 22, 2020 to July 27, 2021, the rate was 4.5% per annum.
As for the question of what exact value of the refinancing rate should be used, the answer to it is in Part 2 of Art. 6 and part 2 of Art. 9 Federal Law No. 214. In both cases, the calculation of the penalty is applied to the rate in effect on the day of the actual payment of money by the developer to the shareholder.
General information about what a DDU penalty is, the collection of which will be discussed
In the modern world, the construction market is growing rapidly. A lot of companies offer to invest money in building houses.
People invest money and wait for the house to be put into operation. Purchasing such housing is much cheaper than purchasing a new ready-made property.
Of course, this procedure paints bright prospects. But, as in any other business, there are drawbacks. As for equity participation, it involves a lot of risk.
You can stumble upon double sales, long construction, fraud, and the like.
Let's consider a specific situation from life. A person invests money and becomes a construction shareholder. But now, the deadline for putting it into operation has come, and nothing happens.
Another six months have passed since the apartment was supposed to be handed over to him, but construction has not yet finished. He begins to look for housing options on the secondary market and finds an excellent option.
Accordingly, he wants to return his money and terminate the concluded contract. To do this, the shareholder sends a notice to the developer, but the company does not want to return the money. The developer begins to scare the shareholder with penalties.
Every person should understand that in such situations the law is on his side.
The shareholder has every right to terminate the deal and get his money back. Then he files a claim in court. But the problem is that while construction was going on, inflation greatly reduced the amount of funds invested.
That is why the state approved Federal Law No. 214. He protects shareholders and restores justice. On its basis, you can collect. This amount will have to be paid to the developer on top of the contract.
Moratorium on accrual of penalties under DDU
To minimize the consequences of the restrictions imposed due to coronavirus, the Government of the Russian Federation introduced a moratorium on the accrual of penalties.
According to clause 1 of Decree of the Government of the Russian Federation dated 04/02/2020 No. 423, in the period from April 3, 2021 to January 31, 2021, no penalty is accrued.
Developers were also given a deferment for the period from April 3, 2020 to January 1, 2021 to pay penalties for claims that were presented to them before April 3, 2020.
How the calculator works
If a developer violates the conditions that were established in the agreement, he must be punished, and the most effective punishment has always been financial penalties. Nobody likes to part with their money, but we would rather collect a large sum from a bad developer than find ourselves without a roof over our heads, for the construction of which we spent all our saved money.
Surely you already know how to work with the penalty calculator under 214 Federal Law, but there are still some nuances that should be discussed so that later there will be no problems with incorrect calculations:
How to calculate the penalty for late delivery of a house
The method for calculating penalties for late delivery of a property depends on who and how acquired the rights to the housing under construction. However, with any calculation, the result depends on the refinancing rate set by the Central Bank of Russia. The rate on the day of expected delivery of the object is taken into account. The rate is published on the Central Bank website and in the press devoted to the country’s economy.
For a legal entity that owns an object, payments are calculated as follows: a percentage of the cost of the apartment equal to the refinancing rate (for example, 10% of 2,000,000 rubles) is divided by 300 and multiplied by the number of overdue days. For example, for late delivery of an apartment for 2 million rubles by 30 days, at a rate of 10%, the developer will have to pay 20 thousand rubles. If the applicant is an individual, payments are doubled.
When paying the cost of an apartment in installments, the calculation is not based on the actual value of the property, but on the basis of the amount paid by you on the date of filing the claim.
The amount of the penalty is determined by legislative acts. Even if the developer included clauses in the agreement with the shareholder that provide for a reduction in the penalty, these clauses of the agreement can be challenged in court.
If calculating the obligations of a construction company turns out to be difficult, the buyer of an apartment can turn to an experienced lawyer for advice. The initial consultation with a specialist is most often free, during which the lawyer will be able to approximately calculate how much the plaintiff should expect.
