In case of non-observance of the commissioning period, you can recover a penalty from the developer . The amount of compensation is 1/300 of the Central Bank refinancing rate, which was valid on the day of fulfillment of obligations. Let us further consider how to recover a penalty under the Federal Law from the developer .
Specifics of computing
In order to recover the penalty from the developer for business participation , it is necessary to start the calculation from the date of violation of the established period. For example, if the agreement states that the object should be transferred on 10/01/2016, then the calculations begin on 02/10/2016. In this case, the calculation is carried out before the date of execution of the acceptance certificate. This rule also applies if the permission to put the facility into operation was signed before it was drafted. If a cession is signed, under the terms of which the construction completion date is 01.01.2015, for example, you need to see what is indicated in the share agreement. The last document may have a different calendar number. For example, a company agrees to transfer housing to the entity within a year of completion of construction. Therefore, compensation will be calculated from 02.01.2016.
Pre-trial settlement
Before recovering a penalty from the developer for the delay in transferring the object to the court, it is necessary to observe the claim procedure. What does it mean? The pre-trial procedure provides for the preparation of a claim and forwarding it directly to the developer. It indicates a violation committed by the company, puts forward a proposal to pay off arrears. When making a claim, special attention must be paid to the address of the recipient. It is indicated, as a rule, in the details of the agreement. However, experts recommend checking it on an extract from the register. You can get it if you have a company TIN.
Shipping Features
You can submit a claim in two ways: in person or by mail. In the first case, you must have 2 copies of the application. One is transferred directly to the developer, the second remains with the victim. On it, the company representative must put a mark on registration. In particular, the date and signature of the official shall be affixed. The mark is certified by a seal or stamp. The usual time in which the developer must send a response is 10 days. During this period, the company may decide to meet the requirements. However, it often happens that a firm refuses an applicant. In this case, it becomes possible to recover the maximum forfeit through the court. By mail, it is better to send a registered or valuable letter with an inventory. In this case, the ten-day period for the reply will be calculated from the date of receipt of the claim by the addressee.
Who to sue?
In order to recover the penalty from the developer , it is necessary to clearly determine who the defendant is. In many cases, victims have difficulties at this stage. As a general rule, the developer will be the defendant. However, not in all cases it is the subject with which the agreement is concluded. Meanwhile, regardless of who the other party is — mutual funds, agent, etc. — it is the developer who must transfer the living space. Therefore, a lawsuit is brought against him. If in doubt as to who the developer is, you should carefully study the building permit. It is issued to the company that, in fact, is constructing the building.
Loss
When deciding to recover a penalty from the developer, under the law, the victim has the right to demand compensation for real damage and lost income. The first is made up of expenses that the applicant will incur or will have to incur in order to restore his violated right. Unearned income is the profit that a person could have in normal turnover conditions if the obligations were fulfilled. When establishing the lost profit, according to Article 393 of the Civil Code, measures taken by the creditor to receive it are taken into account.
Justification
Losses must be documented. Theoretically, the applicant, deciding to recover a penalty under the Federal Law from the developer , is entitled to include in the calculation the rent for the apartment, which he rented before receiving the disputed living space. In this case, it is necessary to attach an employment agreement, as well as the receipt of the owner to receive the money. If such documents are absent, the court may well refuse to include these expenses in losses. Meanwhile, in practice, even with their presence, it is not always possible to justify the requirements. In particular, the applicant may have a registration stamp in the passport. At the same time, he can live in a rented apartment. In this case, it will be necessary to justify the reasons why the person occupied the rented premises. If the object was purchased at the expense of the loan and the agreement provides for an increased rate before the apartment is registered in the property, the difference between it and the usual interest can be completely included in losses.
Package of documents
In order to recover a penalty from the developer under a business agreement, it is necessary to collect papers to bring them to court along with the lawsuit. The package of documents includes copies of:
- Contract for participation in construction. Applications are provided with it.
- Payment papers certifying payment by agreement.
- Assignment agreement (if any).
- Claims, papers confirming its dispatch.
- Documents certifying and justifying additional losses.
- Correspondence with the company, if it was.
Drawing up a claim
It is drawn up in accordance with the rules of the Civil Procedure Code. The lawsuit indicates the court to which he is sent, information about the defendant and the applicant. The content shall indicate facts of violation of obligations with reference to the contract. The request part contains the actual requirements. The following is a list of applications. At the end is the date and signature of the applicant. Among the applications may include the calculation of the penalty and losses. A lawsuit is sent to the court at the location of the defendant. If the amount of the penalty is less than 50 thousand rubles, then the application shall be submitted to the justice of the peace at the location of the developer. This rule establishes Art. 23, part 1, paragraph 5 of the Code of Civil Procedure.
Nuances
The court has the right to reduce the amount if it is disproportionate to the consequences that arose in connection with the violation of obligations. Reduction of the penalty is allowed in exceptional cases at the request of the defendant. The court, in turn, will have to indicate the reasons for which the size will be reduced. At the same time, the degree of fulfillment of obligations by the defendant, the actual amount of damage caused in connection with the violation, and other circumstances that deserve attention are taken into account. Thus, in some cases it will be possible to only partially recover the penalty from the developer .
Moscow
There are several options for filing a lawsuit. Like a claim, it can be sent by mail or presented in person. In the latter case, in turn, it is possible to leave the lawsuit in the office or to transfer it directly to the judge at the reception time. In Moscow, this can be done after lunch on Monday or in the first part of the day on Tuesday. In this case, it is advisable to preliminarily clarify which part of the judge includes the address of the defendant. This information can be found in the office. If the lawsuit is filed for the first time, you should ask the judge to look at its contents and its annexes. If everything is framed correctly, a hearing may be scheduled on the same day. In some cases, judges do not accept claims for admission proceedings. However, they can still check it for procedural errors.
Recommendations
After the lawsuit is filed, it is advisable to call the office after 7-10 days and find out about the fate of the application. If it is accepted for production, the applicant will be told the date and time of the meeting. By law, the court sends the determination by mail. However, a citizen may apply for personal receipt. If the lawsuit is left without a motion, the court will indicate which errors were made and establish a time limit for their elimination. It is necessary to keep within the period specified in the definition, otherwise the application will be considered as not submitted.
Process features
It should be prepared for the fact that quickly recover the penalty from the developer will not work. On average, the process takes about 2-3 months. At the first - preliminary - meeting, preparations will be made for the proceedings. Parties are invited for an interview. Some developers seek to drag out the process. They begin to solicit third parties, postpone the meeting, and so on. In this case, the plaintiff must convince the judge that all these manipulations are aimed at delaying the consideration of the case.
Process completion
During the consideration of the case, all circumstances are clarified, the arguments of the parties are heard. After that, the court makes a decision. At the meeting, its resolutive part is read out, that is, in fact, the outcome of the process. Within 5-10 days, the decision is made in final form. It takes effect within 30 days. This period is set aside for appeal. If the defendant has not challenged the decision, then the plaintiff may receive a writ of execution. With him, he goes to the bailiff service. The FSSP employee accepts documents and opens enforcement proceedings.
Appeal
Typically, developers who do not intend to pay a penalty and losses appeal the decision made in the first instance. At the same time, the matter is often dragged out. For example, the defendant may file an appeal with errors. The court, in turn, leaves her without moving, setting a time for their correction. As a result, the trial may drag on for months. Not every applicant has the opportunity to go to court and claim their rights. One could entrust the case to a qualified lawyer, but not everyone has money to pay for his services. Developers, in turn, offer to peacefully resolve the issue by paying only part of the penalty. Some plaintiffs are happy with this option. If, however, the victim decides to recover the full penalty from the developer , he needs to prepare for further meetings. First of all, a review must be prepared for the appeal. The arguments presented by the defendant should be answered correctly, in terms of legal norms. This may require the assistance of a lawyer. You can contact a lawyer for help in writing a review.
Executive production
The bailiff will have to directly recover the penalty from the developer under the DDU . As mentioned above, documents issued by the court are submitted to the FSSP. Executive production includes 3 stages. At the first, preparations are being made for enforcement. At this stage, issues are resolved regarding the possibility of accepting IL for production, voluntary payment of the established amount, measures are being taken to search for the debtor, etc. At the second stage, the actual collection is enforced. At the final stage, production ceases in connection with its execution or non-execution.
conclusions
As you can see, recovering a penalty from the builder under DDU is not always easy. In the analysis of judicial practice, it is difficult to clearly say what percentage of success. Much depends on the honesty of the developer, the legal literacy of the plaintiff. If a controversial situation arises, it must be remembered that before going to court, you must follow the complaint procedure. In such matters, it is mandatory. This means that if the plaintiff does not present documents confirming the direction of the claim to the defendant, his claim will not be satisfied. When preparing the preliminary requirements, it is necessary to clearly and clearly state your position. Along with this, there is no need to threaten. The claim must be drafted in the official language. Emotional statements should be avoided, the requirements should be stated on the merits. In this case, the developer should be warned that in the event of a failure to satisfy the claim, the materials will be sent to the court.
In practice, there are cases when the defendant agrees to fulfill the requirements. With mutual desire, the parties can always come to a compromise. If the issue could not be resolved peacefully, you will have to go to court. When drawing up a claim, it is necessary to be guided by the norms of civil procedure legislation. The application must contain all the required details, date and signature. Particular attention must be paid to the number of copies of the claim and its annexes. There should be as many as there are parties to the case, plus one more for the court. When calculating the penalty, you should not overestimate its size. The court will determine the correlation between the amount of compensation and the seriousness of the violation. The law provides for the possibility of reducing the amount of recovery. Particular care should be taken in calculating losses. All losses must be justified and documented. It must be remembered that the proof lies entirely with the plaintiff. In addition, you should be prepared for the fact that the matter will not be resolved quickly, as many expect.
Conclusion
Developers are different, not all of them are able to admit guilt and bear responsibility. The defendant may well involve a lawyer in the case. If the plaintiff does not have the opportunity to use the services of a lawyer, it can be very difficult for him to defend his innocence. In this case, one should only rely on the justice of the court. However, do not be afraid to go to court and demand a penalty. The constitution guarantees the protection of the rights of citizens. You need to use this. The main thing is to rely on the rule of law in their actions. It is necessary to carefully study the procedural rules, the terms of the agreement, the existing practice of cases, to analyze how one or another participant of the Housing and Utilities Commission sought a penalty from the developer . It will take some time and take power, but often the result is worth it. You can consult a qualified lawyer on specific issues.