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.
Important! If you are considering your own case related to shared participation in construction, then you should remember that:
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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.
How to understand that the developer has delayed delivery of the house?
Determining when the deadline for the delivery of real estate under an equity participation agreement in construction is sometimes difficult, because the exact date is usually not indicated here. But this does not mean that the rights of buyers can be violated. The delay is determined depending on the information in the contract:
- When the exact date is indicated down to the date, the delay occurs the very next day;
- If a month or quarter of delivery is indicated, a violation of deadlines is noted from the moment this period is completed;
- When the completion date depends on other factors, for example, on obtaining permission to put the house into operation, it will be necessary to count the period specified in the document. For example, if it is said that delivery will occur 2 months after receiving the permit, you need to determine this date by adding the specified period. The next day will be considered a day of delay.
Regardless of how long the developer is late in delivering the house, you can restore your legal rights and seek compensation - payment of a penalty.
Video 1.
What to do if the developer delays the housing transfer process?
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.
Delay on DDU - general information
Relations between shareholders and developers are regulated by Federal Law No. 214 “On participation in shared construction.” According to the law, if there is a delay in fulfilling obligations under the DDU, the developer must compensate for the damage to the shareholder and pay him a penalty.
Participants in shared construction may demand compensation if there is a delay in the transfer of apartments. Violation of the deadlines for the construction of a building and commissioning may not always become the basis for a requirement to pay a penalty.
You can collect a penalty from a construction company in pre-trial and judicial proceedings. Both procedures will be discussed below.
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.
What to do if the developer delays delivery of the house | About real estate with soul
Greetings, readers of Habrealty.ru!
The developer is delaying the delivery of the house in which you purchased a long-awaited apartment under an agreement for participation in shared construction. It’s time to move into your apartment, but that’s not the case. Read below for some advice from an experienced lawyer.
But the developer is in no hurry to invite you to transfer the apartment to you. A month passes, a second passes, and maybe a year. What, in this case, should you do, and what should you not do, if developers start offering you options for solving this problem?
In practice, such cases are very common; almost no one meets the deadlines. But in any case, you should not accept this as the norm, but you just need to know your rights, and what you are entitled to in this case.
In such cases, shareholders are well protected by the law; many probably know that in this case the developer begins to fall behind, that is, the contract must indicate the deadline for transferring the apartment to you, if the developer has not transferred the apartment to you under the transfer deed within this period:
Many developers will begin to promise you to sign additional agreements to postpone the deadline, in return they may promise you to make repairs or some other benefits. I advise you not to agree with them to any conditions, not to sign any agreements, since in addition to what they promise you, they can also add what they need, not you.
Firstly, as soon as you sign any agreement with them, you may lose the right to collect penalties from them in court, and this is to their advantage.
What to do if the delivery date of the house is delayed?
And you need to do the following: as soon as the developer begins to delay the transfer of the apartment to you, you must write to him a claim for payment of a penalty to you in connection with the delay in transferring the apartment to you.
The claim must be sent by registered mail so that you have proof of the claims made by them. Wait no more than a month and at least 2 weeks. Then you may receive an answer that yes, they agree to pay, but there is no money yet, or there are other options, or there will be no answer at all.
Once again, I advise you not to agree with them to any conditions, not to believe any promises, if in reality they do not return your money, then you should go to court.
How the court will judge
What could be the pros and cons of the judicial procedure, first about the disadvantages, then about the pros.
Disadvantages - not everyone can draw up a good claim and represent your interests in court, you will need the help of a lawyer, for which you will have to pay, then litigation takes time, sometimes a long one.
Next, there is a risk that the court will greatly reduce the penalty, and in this case the game may not be worth the candle, and many people think that they will spend a lot of time on litigation, and then they will not be able to recover the money.
Now let’s look at the advantages of a trial, firstly, in court you will be able to recover, in addition to the penalty, moral damages, all losses incurred due to the delay in delivering your apartment (money for renting an apartment, etc.), as well as a fine of 50% of the awarded amount, for refusing to voluntarily pay you the penalty.
It turns out to be a very decent amount. Even at the stage of the trial, you can file a motion to secure a claim to seize the accounts of developers, so that it would be easier for you to receive money later.
When filing a claim in court, you do not need to pay a state fee, and the statute of limitations is 3 years
Also, the court awards all legal costs to the developer. Based on the court decision, you receive a writ of execution, on the basis of which bailiffs can seize all his accounts and property, apply restrictive measures, even bring the developer, as a legal entity, to criminal liability for failure to comply with a court decision to pay you a debt.
That’s how many advantages there are if you file a lawsuit, the main thing is to be able to correctly apply all the laws in your favor.
From my practice, I will say that the courts awarded decent amounts. The main thing is to properly justify everything and also prove that the plaintiff actually suffered losses and moral suffering due to the delay in delivery of the house.
I advise you to better entrust this matter to an experienced lawyer so that he can actually recover the amount that you indicated in your claim, and not reduced several times. It is also possible to receive money if you competently organize the work of bailiffs, who have very large powers.
I believe that in this matter you need to defend your rights, you shouldn’t be afraid and you need to believe in your success, and then everything will definitely work out for you. You can also contact me, I will definitely help you, since I have already gained experience in such matters.
Source: https://www.HabRealty.ru/yurist/zaderzhivayut-sdachu-doma.html
Additional agreement on rescheduling
The developer is obliged to send the shareholder the relevant information and a proposal to amend the contract no later than two months before the expiration of the period specified in the contract for the transfer of the object.
The main argument is the need to extend the liability insurance contract to the shareholder under the DDU.
The company is misleading the shareholder: the insurance contract must provide the right to receive insurance compensation within two years after the construction completion date specified in the contract.
Similar provisions are established for surety agreements, the validity of which must be at least two years longer than the period stipulated by the DDU for transferring the shared construction project to the shareholder.
When concluding additional agreements:
- Remember the principle of freedom of contract. No one can force you to enter into a new agreement;
- proceed from considerations of personal gain. You may agree to move the deadline if your payments are tied to it, but there is no money to pay. When the delivery deadline arrives, to make the final payment for the apartment you need some time to find financial resources;
- By signing the additional agreement, you waive the penalty for late delivery of the object. A demand for payment of a penalty may be made after the expiration of the terms specified in the agreement.
Watch a video about signing an agreement to reschedule when the statutory deadline is overdue:
