Today, construction companies are required to meet the deadlines for the implementation of multi-apartment building projects, in which participants in shared construction made financial investments.
There are many different nuances that you need to pay attention to when concluding agreements of DDU. You must carefully read all of them. This will help to avoid any possible problems in the future.
If the construction organization does not comply with its obligations, certain penalties are applied to it in accordance with legislative norms.
One of them is the compensation of the penalty from the developer of the corresponding amount. The method of collecting monetary compensation (forfeit) is again determined by the legislation of the Russian Federation.
A preliminary acquaintance of the shareholder with the legislative norms will help to independently protect him and protect his rights.
Features
Today, shared construction is one of the most popular types of construction. Especially among mortgage borrowers - since in this way people manage to save a decent amount.
Need to know! During construction and by the construction itself, delays in the construction period may occur.
To protect the interests of equity holders in the construction of apartment buildings, there is a special federal document. Thanks to him, people who are participants in investment activity in construction are protected, in which a construction or investment organization attracts citizens' money.
If for some reason the construction company cannot fully make or partially fulfills the conditions under the DDU agreement, then various fines will be imposed on it under the law.
Receiving a penalty from the developer
Before you go to court, you need to study some issues relating to the recovery of forfeits. For instance:
- What is a forfeit.
- Validity of the contract DDU.
- Current regulations.
What is a forfeit?
Recovery of monetary compensation from the developer in case of failure to comply with one of the clauses of the contract for equity until the house is delivered. Under the name "penalty" is meant a certain amount, which is assigned to the payment by the developer to a citizen in court.
The penalty can be recovered from the developer in case of violation of any conditions of a previously drawn up contract. The size of the penalty in case of shared construction cannot be less than that specified in the legislation.
The amount of this penalty is enshrined in the legislation of the Russian Federation, it cannot be less than one three hundredth of the refinancing rate (replacing an existing debt obligation with a new debt obligation on market conditions).
Moreover, such compensation is assigned for each overdue day (calendar). Moreover, for private and legal entities the size of this fine varies quite significantly. In the first situation, the amount of payment will be doubled. As for legal entities, other legislative norms apply to them (legal norms contained in laws).
A penalty is not assigned in a situation if the delay in the delivery of the house has occurred for a reason that does not depend on the will of the construction company itself.
But confirmation of the existence of such reasons will need to be confirmed without fail by official documents. Otherwise, a fine cannot be avoided.
A claim for the recovery of monetary compensation from a construction company for equity participation must be filed only at the place of registration of the developer.
Contract validity
An agreement on shared construction must be concluded in a standard form. Moreover, its format is not officially fixed. But regardless of this factor, there are a number of requirements for the design of this document. They must be observed.
Otherwise, the shared construction agreement will be declared invalid or partially invalid. The borrower himself must carefully read all the points that are reflected in the drawn up agreement. As a rule, problems and difficulties arise precisely because the citizen himself does not know the terms of the agreement.
All conditions prescribed in the contract must meet all the rules in force in Russia. The obligation to reimburse the forfeit when extending the construction period may not be indicated in a written agreement.
Current regulations
The main document that regulates the penalty, as well as other nuances associated with shared construction, is Federal Law No. 214 of December 30, 2004. It contains more than twenty different articles detailing the problem of drafting an agreement on shared construction.
For instance:
- Article number three describes the need to register a construction company accordingly. Since not all developers have the right to raise money from equity holders for the implementation of shared construction. In connection with this factor, in accordance with Article No. 3.1 of the Federal Law, all construction organizations must and must provide detailed information about themselves.
- Article No. 4 - governs the issue of concluding a shared construction agreement.
- The cost of the formal agreement from which the amount of the penalty is calculated is governed by Article Five.
- Article No. 6 governs the calculation of the penalty. It determines the term for the transfer of the shared construction to the new owner.
Important to remember! Violating the rights of a legally literate citizen is more difficult than a simple person.
If you have any questions or suspicions, it is best to contact a qualified lawyer for help.
The procedure for the collection of forfeit
There are two ways to recover the penalty:
- pre-trial (claim only to the developer);
- judicial (lawsuit against a construction organization).
Penalty with a builder judicial practice helps:
- return fifty percent in favor of the shareholder;
- return the amount for moral damage (from 1 thousand to 50 thousand rubles);
- to return the money spent on rental housing during the period of shared construction.
Responsibility of the developer for violation of consumer rights under the contract of participation in the DDU
The Law of the Russian Federation No. 214 of February 7, 1992 (On the Protection of Consumer Rights) confirms that for violation of the rights of consumers participating in the DDU, the construction organization is liable as provided for in the contract or the law. And also a penalty is charged from the developer under the law on consumer protection:
- penalties, fines;
- reimbursement of material costs to the interest holder;
- compensation for non-pecuniary damage.
Claim of a construction company for violation of deadlines for real estate
In case of non-observance of the deadlines for the rental of apartments, which are established in the share agreement, the citizen has the right to demand an explanation from the developer.
When resolving such disputes, the judge may consider the claim procedure to be true if the requirements for:
- the written complaint form (claim);
- the procedure and terms for its presentation by a citizen (interest holder), as well as consideration by a construction organization.
The claim document is written. It must specify the following points:
- names of parties (developer, interest holder);
- the situation in connection with which the extension of terms has occurred;
- amount of penalties;
- claim;
- penalty payment period.
The procedure for collecting penalties in court
Recovery of monetary compensation from the developer through the court consists of several steps:
- Drawing up a statement of claim, collecting the necessary documents.
- Filing a written appeal to the court, setting a date for the meeting.
- Judicial review of the claim.
- Sentencing.
How to correctly calculate the penalty
The amount of penalties is calculated on the date of signing of the act of acceptance of transfer of real estate. It is necessary to calculate the penalty immediately after the delay in transferring the property to the property of the shareholder. For example, if the document states that the construction organization is obliged to transfer the apartment according to the DDU 09/01/2017, then penalties for the developer begin to be calculated from 09/02/2017 until the date of signing the contract for acceptance - transfer of the construction object. This practice is valid even after obtaining permission to put the house into operation.
The penalty with the developer under the assignment agreement is as follows:
- If a citizen has a cession agreement in his hands, which states that the construction completion date is, for example, 02.02.2017, then he needs to see what is written in the share agreement. This document may have a different date. For example, the contract states that the construction company must transfer the property within one year after completion of construction.
- In this case, the penalty must be calculated from 02/03/2018. Do not ask for excessively high amounts in favor of non-pecuniary damage. As a rule, overstated requirements do not satisfy.
Recovery of penalty from the developer: court decision
In accordance with the Federal Law “On participation in shared construction of multi-apartment buildings”, a construction company is obliged to transfer real estate to the real estate investor no later than the date specified in the contract and must be the same for all participants of the DDU, to which the builder is obligated to transfer the objects included in the multi-apartment building with separate entrance with access to the common area.
In case of failure to fulfill the deadline specified in the contract for the transfer of the apartment to the interest holder, the developer shall pay a citizen participating in the DDU a fine in the amount of one three-hundredth of the refinancing rate of the Central Bank of the Russian Federation.