Statement of claim for the recovery of a penalty for late delivery of a house under the DDU

In the Golovinsky District Court of Moscow Plaintiff: E.N.A. Saratov region, Balakovo, Lenina st., 82, apt. 33 Representative of the Plaintiff: Khoruzhenko A.S. Kuryanov A.A. Legal bureau "Moscow legal" Moscow, st. Maroseyka, 2/15 tel Defendant: LLC "S." Legal address: Moscow, Pulkovskaya str., 3, building 3 Third parties: LLC "G." 20__77, Moscow, Kantemirovskaya st., 53, building 1 LLC "N." 20__18, Moscow, Profsoyuznaya st., 31, building 5

STATEMENT OF CLAIM for the recovery of a penalty under an equity participation agreement and other expenses

On February 13, 20__, the Plaintiff (new shareholder) entered into an agreement with LLC “N.” (shareholder, third party) Agreement on the assignment of rights (hereinafter referred to as the “Agreement”) under the agreement on the assignment of rights of claim dated October 21, 20__ to the Agreement on participation in shared construction of a residential building dated April 21, 20__.

On the basis of this agreement, the Plaintiff acquired rights under the Agreement for the assignment of rights of claim (concluded on October 21, 20__ between N. LLC and G. LLC) to the Agreement on participation in shared construction of a residential building (concluded on April 21, 20__ between LLC "G." and LLC "S."), registered by the Office of the Federal Registration Service for the Moscow Region on November 30, 20__ to receive a Shared Construction Project: an apartment with a total design area of ​​40.88 sq.m., located at the address: Moscow Region, Balashikha, microdistrict. 16 im. Yu.A. Gagarin, building 20/1 (hereinafter referred to as the “Object”).

In accordance with clause 3 of the Agreement, the right of claim is assigned to E.A.A. for RUB 2,555,000. , and payment must be made by February 20, 20__.

E.A.A. fulfilled its obligations in full, on February 13, 20__ it made full payment under the Agreement, about which LLC “N.” and E.A.A. a corresponding act dated March 19, 20__ was drawn up.

In accordance with clause 2 of the Agreement, the right to receive the Object belongs to E.A.A. on the basis of the Agreement on participation in shared construction of a residential building dated 04/21/20__, registered by the Office of the Federal Registration Service for the Moscow Region on 11/30/20__ between LLC "G." and LLC "S." (hereinafter referred to as the Equity Participation Agreement). Thus, on the basis of the concluded agreements, the Defendant – LLC “S.” is the developer, and the Plaintiff is the Shareholder.

In accordance with clause 6.2.2 of this DDU, “the developer undertakes to transfer the apartments to the Participant in Shared Construction under the Transfer Deed no later than November 30, 20__.” To date this has not been done. The plaintiff has repeatedly sent letters of claim to the Developer.

By virtue of Part 2 of Article 6 of the Federal Law No. 214-FZ dated 12/30/20__ (as amended on 12/30/20__) “On participation in shared-equity construction of apartment buildings and other real estate and on amendments to certain legislative acts of the Russian Federation”, in the case violation of the deadline stipulated by the contract for transferring the shared construction object to the 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.

Based on the Directive of the Bank of Russia dated September 13, 20__ “On the amount of the refinancing rate of the Bank of Russia,” the refinancing rate is currently 8.25%. To date, for the delay in transferring the apartment to the Plaintiff from the developer - LLC "S." for 661 days (01.12.20__ -23.09.20__) a penalty is subject to recovery in the amount of: RUB 928,870.

Calculation: 2,555,000 (contract price) *661 (day of delay) *8.25/100/150

Due to the fact that the Plaintiff does not have the necessary legal knowledge, he was forced to seek qualified legal assistance, paying the representative in the amount of 100,000 rubles by agreement.

Because The Plaintiff is forced to spend her personal time on judicial claims work, is forced to rent housing for herself, due to the fact that the deadlines for the transfer of the housing she paid for are constantly being shifted, the Plaintiff suffered severe moral suffering. The plaintiff goes to court and estimates the amount of compensation for moral damage suffered in the amount of 200,000 rubles.

The Plaintiff files this claim at the place of registration of the Defendant’s legal address and is exempt from paying state fees on the basis of the Plenum of the Supreme Court of the Russian Federation dated June 28, 20__ “On the consideration by courts of civil cases in disputes regarding the protection of consumer rights,” as well as the Federal Law “On the Protection of Consumer Rights.”

Based on the above, guided by the Federal Law “On participation in shared construction of apartment buildings and other real estate”, Art. 395, 151, 1099-20__ Civil Code of the Russian Federation, Art. 100, 103, 131-132 Code of Civil Procedure of the Russian Federation,

How to prevent the court from reducing the penalty

The law provides for the right of the court, when considering a case on a claim for the collection of a penalty, to reduce its amount.

Today, courts of general jurisdiction use this right so actively that the preventive function of the penalty established by the legislator has actually lost its force.

The legislator established a specific amount of the penalty, which is quite significant in case of prolonged violation of the rights of a participant in shared construction.

Violating the rights of shareholders should have become unprofitable for developers.

However, developers know that out of 10 who wrote a claim for payment of a penalty, 2-3 people will go to court, and the court will most likely reduce the amount of the penalty tenfold.

Therefore, developers in 99% of cases

I do not satisfy the demands of participants in shared-equity construction to pay them a penalty for violations committed, while they easily commit violations for which the law provides for its payment.

The court cannot reduce the amount of the collected penalty on its own initiative - this is done only at the request of the developer.

By law, in the decision, the court is obliged to indicate for what reasons it reduced the penalty and justify why it made the reduction in that particular amount.

But in practice this is what happens:

that it is enough for the developer’s lawyers to file a petition to reduce the penalty, pointing out only that it is disproportionate to the consequences of violating the rights of a participant in shared construction.

The court will reduce the penalty several times or dozens of times,

without bothering to explain the reasons necessary for this in the decision, if after this the participant in shared construction does not receive the necessary objections containing a clear legal position explaining the impossibility of the court applying Article 333 of the Civil Code of the Russian Federation or the impossibility of reducing the penalty in the amount requested by the developer.

Therefore, shareholders who independently conduct their business in court suffer from an excessive reduction in the penalty, but are not ready to present the necessary legal position to the court at the right time.

In addition to the correct legal position on the issue of reducing the penalty by the court, its reduction can be avoided in other ways.

It is necessary to make a reservation right away,

that these methods are used in cases where a significant amount of the penalty is involved.

If the developer must pay you a penalty in the amount of 20 thousand rubles, then the court is unlikely to reduce its amount at all.

To prevent the court from reducing the penalty, there are a number of methods working at the time of publication of this article, including:

• changing the jurisdiction of the dispute to a more loyal court
• fragmentation of the right to claim penalties
• assignment of the right to claim a penalty to a legal entity or individual entrepreneur (change in the procedural jurisdiction of the dispute)
• mixed scheme

To understand which method to choose, you need to evaluate the specific circumstances of the case:

• amount of penalty to be collected
• actual reasons for violation of the rights of a participant in shared construction (delay in transfer of an object or elimination of deficiencies)
• property status of the developer
• jurisdiction of the dispute
• judicial practice regarding this developer
• other circumstances

If you do not want to incur extra costs for legal assistance, but still want to receive the maximum amount of the penalty, call and consult for free with a lawyer from the Consumer Rights Protection Society.

ASK:

1. Collect from LLC "S." in favor of E.A.A. cash in the amount of RUB 930,976. as a penalty for late transfer of the apartment.
2. Collect from LLC "S." in favor of E.A.A. funds in the amount of 100,000 rubles. as compensation for the representative's services.
3. Collect from LLC "S." in favor of E.A.A. funds in the amount of 200,000 rubles. as compensation for moral damage.
4. Collect from LLC "S." in favor of the state, a state fee calculated based on the satisfied part of the claims
5. Please notify the legal bureau “Moscow Legal” of the date and time of the court hearing, Moscow, st. Maroseyka, 2/15, .

Application:

1. A copy of the statement of claim (3 copies on 3 sheets);
2. Calculation of claims (4 copies per 1 sheet);
3. Copy of the Agreement on participation in shared construction of a residential building dated 04/21/20__ between G. LLC and LLC "S." (4 copies per 27 sheets);
4. Copy of the Agreement on assignment of rights dated 04/21/20__ dated 02/13/20__ between LLC “N.” and E.A.A. (4 copies per 4 sheets);
5. A copy of the act of execution of the Agreement dated March 19, 20__ (4 copies per sheet);
6. A copy of the payment order for payment of the contract for 20__,000 rubles. (4 copies per 1 sheet);
7. A copy of the application to LLC "S." dated 04/28/20__ (4 copies per 2 sheets);
8. A copy of the Respondent’s response to the claim dated 12/10/20__ (4 copies on 2 pages);
9. A copy of the claim addressed to the Defendant dated 06/09/20__ (4 copies on 2 pages);
10. A copy of the response to the claim (4 copies per sheet);
11. A copy of the agreement on the provision of legal assistance (4 copies on 3 sheets);
12. A copy of the receipt for receipt of funds (4 copies per sheet);
13. A copy of the power of attorney for the representative (1 copy per 1 page);
14. Extract from the Unified State Register of Legal Entities (7 pages) (https://msk-legal.ru)

Representative of E.A.A. by proxy_______________________________________________________/Kuryanov A.A./ 09/23/20__

About the developer’s delivery deadlines: what can be considered late

Construction delays occur for various reasons:

• financial - with a lack of financial resources;
• technical - in case of problems with connecting communications;
• administrative - if deficiencies are discovered by the commission when accepting the house;
• related to the contractor’s untimely completion of finishing work, supply of materials, etc.

First of all, the shareholder needs to understand the difference between the concepts of “commissioning period” and “term of transfer of the apartment”, since months and sometimes even years of waiting may pass between them. Developers create a misconception about dates by indicating the completion date of construction in advertising in order to attract more new buyers.

The first date means when the developer plans to complete construction and obtain permission from the state commission for commissioning. It can be adjusted without agreement with the participants in shared construction.

The buyer should be interested in the second date, namely the deadline for handing over the keys to the apartment according to the acceptance certificate. It cannot be transferred unilaterally and violations in this part are strictly regulated by Federal Law-214.

To insure against the negative consequences of a delay, the DDU agreement usually indicates not an exact time, but an approximate one. For example, the contract says that the deadline for delivery of the house is the 4th quarter of 2017, and the transfer of the apartment is within 3 months after receiving permission to put the house into operation. This means that housing must be rented no later than March 31, 2021.

Before the deadline for issuing keys to the apartment expires, the developer is obliged to notify the shareholder of the impossibility of timely delivery. It is often proposed to enter into an additional agreement. By signing it, the buyer is deprived of the opportunity to demand penalties and other payments.

By law, the shareholder can receive the keys only after the builder puts the house into operation. Sometimes housing complexes are asked to sign a deed of transfer and hand over the keys to the apartment before receiving permission to enter. This act of acceptance and transfer is contrary to the law. With it you will not be able to register ownership. In court, this document can be canceled and compensation for the penalty can be demanded on the date of signing the actual act.

Buyers who received an apartment late are not deprived of the right to receive a refund, even if the transfer obligation has been fulfilled and no claims against the developer were indicated in the transfer deed.

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Requirements for the developer

The statement of claim ends with the specific demands of the shareholder to the court. They usually include a number of material claims in the form of:

1. Collection of penalties for late delivery of the house.
2. Payments of compensation for moral damage.
3. A fine of 50% of the amount awarded in favor of the plaintiff for failure to comply with the voluntary procedure for paying the penalty.

The amount of claims is determined by the shareholder independently; a detailed justification and calculation of the amount due for payment is attached to the statement of claim. By law, the developer is obliged to compensate all the defendant’s costs associated with the delay in delivery of the house. In particular, this is the rent for the apartment that the plaintiff was forced to rent. If the untimely delivery of housing caused moral torment to the plaintiff, then he may demand compensation for moral damage.

Penalty for late payment is calculated in the amount of 1/300 of the refinancing rate of the contract price for each day of delay. But the penalty for contracts with individuals is collected in double amount: not as 1/300 of the rate for contracts with legal entities, but 1/150. As of October 2021, the refinancing rate is set at 7.5%.

Here is an example of calculating a penalty:

1. 7.5% (refinancing rate)/300*2=0.05.
2. 5,000,000 (price of the apartment)*0.05%=2,500 rub . – penalty for 1 day of delay.
3. 155 days of delay*2500 = 387500 RUR.

According to the above calculation, if there is a delay of 155 days, the developer will have to pay a penalty in the amount of 387,500 rubles.

The plaintiffs had the opportunity to recover a fine in the amount of 50% of the penalty in 2012 on the basis of clause 6 of Art. 13 of the Law of the Russian Federation “On the Protection of Consumer Rights”. This rule is intended to encourage developers not to bring the case to court and to pay the penalty voluntarily.

In some cases, plaintiffs were able to obtain compensation for the costs of representatives in court, transportation and postal expenses, etc.

All claims of the plaintiff must be justified and motivated.

Contents and structure of the statement of claim

There is no established form of statement of claim against the developer; the document is drawn up in a free format.

The claim against the developer consists of the following sections:

1. The header of the document indicates the details of the court, the plaintiff and the defendant , and their contacts.
2. Name of the document (“Statement of Claim”).
3. The description contains a concise and consistent description of what happened : when the contract was signed, what delivery dates are indicated there, what kind of housing was purchased under the contract, its exact address, area, cost.
4. The petition part contains the requirements.
5. List of attachments (documents that confirm the stated circumstances).
6. Date and signature of the applicant.

Emotional presentation of facts, threats and insults against the developer are not allowed in the claim.

In Art. 131 of the Code of Civil Procedure provides general requirements for a statement of claim that must be taken into account. Indeed, in case of non-compliance, the statement of claim may be left without progress or rejected.

So, the statement of claim must indicate:

• name of the court that will consider it;
• information about the plaintiff and his place of residence;
• information about the defendant : name of the company, its details (TIN, KPP), legal and actual addresses;
• what legal rights of the plaintiff were violated (the deadlines under the equity participation agreement were not met);
• on what circumstances does he base this (references to law and contract);
• the cost of the claim (the amount of the penalty and other compensation that the plaintiff demands from the defendant);
• information on pre-trial dispute resolution;
• list of applications.

The application can include the contact details of the parties (telephones, faxes, addresses). A sample claim against a developer for delay can be viewed here.