When purchasing future housing in shared-equity construction, a citizen must be prepared that the delivery of the new building may be delayed. Many people agree to be patient when it comes to minor delays, not wanting to deal with the courts.
But what to do if the developer postpones the completion date of the house again and again? There is no universal answer to this question.
In this article we will tell you how to protect yourself from deception and win substantial compensation if the developer does not properly fulfill contractual obligations.
How long can a developer legally postpone the delivery of a house?
Each equity participation agreement (DPA) must contain a clause on the date of transfer of the apartment. Sometimes developers prescribe the right to unilaterally postpone deadlines by notification, which misleads buyers. In some cases, intricate wording is used. All this is contrary to federal law.
If a construction company (SC) does not have time to deliver the house within the agreed time frame, then it is obliged to notify its shareholders about this no later than 2 months in advance. In this case, an additional agreement is often drawn up in order to evade liability. By signing it, the citizen deprives himself of the opportunity to demand a penalty, since he himself agrees to a new term.
In fact, you can delay the moment of surrender an unlimited number of times. Whether the developer will be punished depends on whose fault the delay occurred.
Force majeure circumstances are often cited as reasons. Today, they mean not only natural disasters, but also untimely delivery of equipment, delays in issuing permits by government agencies and other actions of third parties.
It is important to understand which cases are a cause for concern. It’s one thing when they don’t have time to complete connecting to networks or landscaping the local area.
It’s a different story if construction work has stopped at the site, there is no equipment and no workers. This situation cannot be left to chance, otherwise the investor will lose all the invested funds. The sooner he takes active action, the faster he will turn the situation in his favor.
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What does late delivery of apartments entail?
According to current legislation, the developer is obliged to notify all shareholders in writing against signature. Moreover, this must be done no later than two months before the planned date of transfer. Unfortunately, developers do not always do this.
By law, the company must send a proposal to amend the contract along with the letter. This is formalized by drawing up an additional agreement. At the same time, the participant in shared construction is not obliged to sign it, since, according to the Civil Code, all changes to the contract are possible only with the consent of the parties.
Sometimes there are situations when the delay in transferring the house is beneficial to the shareholder and he signs the agreement without any requirements. This may be the case if there was an installment plan and not all payments were paid.
If the parties do not agree on changing the deadline for the transfer of real estate, the construction company is obliged to pay a penalty. Its size is one three-hundredth of the refinancing rate if the shareholder is a legal entity, and one hundred-fiftieth for an individual. If an agreement is drawn up to postpone the deadline, the penalty is not paid, and the shareholder no longer has the right to make claims.
What to do if the developer does not deliver the house on time (step by step)
Let's take a closer look at what needs to be done if the developer delays delivery of the house.
There are 3 ways to solve the problem:
- Wait for the house to be delivered,
- Sell your home
- Unilaterally terminate the contract with the developer.
Step 1. First of all, it is important to assess the prospects for continuing construction. Ask the developer to clarify the situation regarding the reasons for the delay. If they do not cause concern and the shift is several months, then it is better to allow him to fulfill his obligations.
In some cases, a delay may be beneficial to participants in shared construction. For example, when it is compensated in the form of apartment renovation or extra square meters.
Step 2 . It makes sense to keep in touch with your neighbors. Like-minded people can be found on the forums of shareholders. Some insurance companies create pages on social networks where they publish reports on the progress of construction. They can also be used to communicate with other future owners of an apartment building.
Step 3. After 2 months of delay, the buyer has the right to demand termination of the DDU. For this purpose, a refusal notice is sent indicating the reasons. Within 10 days, the developer is supposed to return not only the invested money, but also interest on its use.
This option is not suitable for everyone, especially if the work is in its final stages. The risk is that if the solvency of the insurance company is zero, it will take you a very long time to return the funds.
To find out whether the insurance company is on the verge of bankruptcy, obtain an extract from the Unified State Register of Legal Entities on the official website of the Federal Tax Service. Also pay attention to the size of the authorized capital and the presence of serious partners.
In many regions, lists of unscrupulous developers and long-term construction sites are published. But it is more advisable to conduct a due diligence check at the stage of concluding a contract.
If the insurance company does not intend to conduct a dialogue with shareholders, the only way out is to contact the judicial and supervisory authorities.
Due to the coronavirus, delivery deadlines for new buildings have begun to slip.
“Delays in commissioning are already occurring,” says managing partner Maria Litinetskaya. “Companies cannot obtain permission to enter on time, even if they have a certificate of conformity in hand, which means that the facility is fully constructed and complies with technical requirements and design documentation.” The fact is that the work schedule of various authorities has changed, most organizations have switched to remote mode, but this format is imperfect, and delays occur in the document flow process, notes Litinetskaya. “We know of cases when construction was carried out even ahead of schedule, the complex was built on time. The problems began when the project had already reached the finish line. The developer received a statement of compliance and electronically submitted an application for an occupancy permit, but due to delays, the previously announced delivery date could not be met.”
Delays are also provoked by the freezing of construction in some regions and a decrease in demand for real estate. “In general, the average delay in putting a building into operation in Russia is now 8.4 months,” Fr. “This figure has been steadily increasing for at least the last three years. In April 2021 it was 6.4 months, in April 2021 - 4.8 months, in September 2021 - 3.4 months.” The highest rate of input transfer in Russia is in Ingushetia (35.2 months), and the lowest is in Sevastopol (less than one month). In Moscow this figure is 5 months, in the Moscow region - 11.6 months, in St. Petersburg - 4.7 months.
The developers themselves - those who construct buildings according to the new rules, through escrow accounts - also suffer from commissioning delays. The funds stored in such accounts become available to the developer only if three conditions are simultaneously met: the house is put into operation, at least one of the participants in shared construction has received the keys and has registered ownership of the apartment.
Most likely, there will be delays in the delivery of objects by 1-2 months, if before this the work was carried out as planned, says Andrey Solovyov, director of the city real estate department at Knight Frank.
“A number of developers are already entering into additional agreements with shareholders to shift deadlines due to the ban on construction work,” he adds. Delays in construction and bankruptcy of market participants should, according to Solovyov, be largely prevented by measures of state support for the construction industry. “Moreover, in the elite segment I do not see any prerequisites for construction delays; on the contrary, many projects are being built ahead of schedule. Sometimes keys begin to be issued to equity holders six months before the official commissioning of the property,” notes Solovyov.
“We have no information that delays in the delivery of houses have begun,” NOSTROY notes. “But surveys of developers show that many are concerned about the gradual increase in such risks. Some record a lag in internal construction plans (which, as a rule, are drawn up with a reserve and are completed at least six months before the houses are put into operation).”
Claim of shareholders against the developer for delay in commissioning
The delay was more than 2 months, but the keys to the apartment were not issued? You should start by filing a claim with the developer for delays. Firstly, the court will not have any unnecessary questions. Secondly, sometimes you can reach an agreement with the developer peacefully.
The claim must require an indication of the exact timing of the transfer of the object, payment of a penalty and reimbursement of expenses. In the letter, provide a calculation of the amount and details for its transfer. Please indicate that you expect a response within 10 days.
The paper should be sent by registered mail with notification or personally to the developer's representative with a stamp and signature on your copy.
How to write a complaint to the developer
File a complaint against the head of the company. Indicate the full name and position of the addressee, your full name and address and describe in detail the essence of the conflict. Write down when, between whom and by whom the DDU was concluded. Quote the part of the contract that specifies the deadlines for delivery of the house and acceptance of the apartment. State that no one gave you the keys on the specified dates, and again quote the clause in the contract about the developer paying a penalty. Refer to a document that shows that you paid the full price for the apartment. Leave your signature and date. Print out the claim in two copies – for the developer and for yourself. The developer must put a stamp on your sample indicating that it has accepted the claim. From this moment the company has 10 days to respond.
A court case with a developer about rescheduling, what can be litigated and how long does it last?
If more than 10 days have passed since the receipt of the claim, and the insurance company does not voluntarily comply with the shareholder’s demands, resolve the issue in court.
Prepare a statement of claim and submit the completed package of documents to the magistrate or district court, depending on the size of the requirements. If the claim amount is up to 1 million rubles, the citizen is exempt from paying state duty.
The application can be submitted both at the place of registration of the developer and at the location of the plaintiff. You need to choose jurisdiction very carefully. Analyze the decisions taken by the authorities where you can file a claim.
In practice, the courts reimburse an amount significantly less than the shareholders present. This is done because due to massive claims for payment of penalties, the insurance company does not have the finances to complete construction, which can lead to bankruptcy. Therefore, in most cases, we advise you to apply to an arbitration court, where the greatest compensation for late delivery of the apartment is sought in favor of the shareholder.
How long does the trial last? According to civil law, the case is considered no longer than 2 months. The time may increase due to the judge’s vacation or if the developer requests a postponement of the hearing under various pretexts.
After the announcement of the operative part, up to 10 days are allotted for the preparation of a full decision. Due to the court's workload, this takes longer. It comes into force after 30 days. In case of appeal, the period is extended for another 2 months.
The amount of compensation and penalties for postponing the delivery of the house according to the DD
If the deadlines are violated, the insurance company must pay a penalty. Its size is 1/150 of the Central Bank key rate for each day of delay. The penalty for transferring the delivery of an apartment is calculated on the date of signing the acceptance certificate. As a consumer, the shareholder has the right to collect a fine - 50% of the penalty amount. You can also recover compensation for moral damages and legal costs.
The developer is obliged to compensate for losses for the entire period while the shareholder was forced to rent housing. To confirm expenses, you must have a lease agreement and documents confirming payment. In this case, you must be prepared for the fact that the court will ask you to justify why the shareholder could not live at the registration address.
Important! On the amount of the penalty, the state is required to pay personal income tax in the amount of 13%.
Note! It is possible to receive a penalty if the contract was concluded. In this case, the shareholder is protected by 214-FZ and the law on the protection of consumer rights. If the acquisition of real estate was carried out through joining a housing cooperative or under a preliminary purchase and sale agreement, then the developer’s liability for delay is not stated here.
Procedure if the Developer violates the deadline for handing over the house
If the Developer violated the deadlines for delivery of the house and/or the deadlines for transferring the apartment to the shareholder as provided for in the Equity Participation Agreement (DPA), then, at the request of this shareholder, the Developer is obliged to pay him a penalty (penalty) . This is directly and unambiguously stated in the federal law in paragraph 2, article 6, Federal Law-214. It should be borne in mind that the Developer is exempt from paying the penalty if he fulfilled his obligations on time, but the transfer of the apartment did not take place due to the fault of the shareholder himself - due to his evasion from signing the Transfer Deed.
Pre-trial claim against the Developer for violation of deadlines for delivery of the house
In fact, according to the letter of the law, what is legally significant is not the deadline for putting the house into operation, but the deadline for transferring the apartment to the shareholder, that is, the moment of signing the Transfer Deed. It is this date that must be indicated in the Equity Participation Agreement, and violation of this particular period (delay of this date) entails the application of a penalty (penalty) to the Developer.
In order to receive a penalty from the Developer for the delay in transferring the apartment under the DDU, you must first send him a pre-trial claim demanding payment of a penalty (penalty) for the delay in handing over the house and transferring the apartment to the shareholder. This letter of claim of the penalty prescribed by law (the formula for calculating it is given below). If the Developer refuses to pay the penalty voluntarily, then this written claim a fine from him (see below), plus the penalty for untimely payment.
When should I file a claim with the Developer about the delay in transferring the apartment?
This can be done both before signing the Transfer Deed (when the apartment has not yet been transferred to the shareholder) and after (when the apartment has been transferred in violation of the deadline). In the first case, the amount of the penalty is calculated as a reference for 1 day of delay (see formula below), and the requirement for its payment is indicated on the day of the actual (future) transfer of the apartment. In the second case, the penalty is calculated immediately in full, based on the actual delay in delivery of the apartment.
Sample claim to the Developer for payment of a penalty due to violation of the deadline for delivery of the house (
deadlines for transferring an apartment according to the DDU
) can be downloaded
Here
.
The claim to the Developer demanding payment of the penalty is drawn up in 2 copies and submitted personally to the office of the construction company against signature and a stamp on the copy of the shareholder, or sent by registered mail with notification and a list of the attachments.
Next, we patiently wait for the Developer’s response. We wait 30 days (the terms for consideration of a claim are regulated by the contract, and if they are not specified there, then by Article 12 of Law No. 59-FZ of May 2, 2006).
If the Developer admits his mistake and is ready to voluntarily pay a penalty (penalty) for delaying the transfer of a shared construction project (apartment), then the issue is closed. The shareholder provides his account number, and the Developer transfers the amount of the penalty to him. In this case, no additional fine will be charged.
In practice, however, the Developer can blame the local administration or an unscrupulous contractor, and offer the shareholder to reduce the amount of the penalty and/or extend the period of its payment. Here, everyone decides for themselves whether to agree or not, depending on how much the company’s lawyers were able to pity the shareholder. But if the Developer’s proposal to voluntarily pay the penalty is accepted, it is recommended that it be secured by a written agreement of the parties.
If the Developer does not respond to the claim within a month, this is regarded as a refusal to pay the penalty . Then the shareholder submits a statement of claim to the court , attaching all the necessary documents and calculation of the claims.
But there is a nuance! The procedure for pre-trial resolution of disputes (including filing a claim) may be specified in the text of the Equity Participation Agreement itself, and then the shareholder will have to follow the contractual procedure. This may concern the form of preparation, deadlines for filing and consideration of the claim.
At the same time, you need to understand that an incorrectly drawn up pre-trial claim to the Developer for payment of a penalty will not have legal force. To draw it up correctly, it is better to seek help from specialized lawyers.
The procedure for receiving compensation for late delivery of a house under the DDU
The procedure for collecting a penalty from the Developer for late transfer of an apartment under the DDU is as follows:
- the shareholder sends a written claim to the Developer demanding payment of a penalty for late transfer of the apartment;
- waiting for a response from the construction company within 30 days (unless the contract specifies a different period for consideration of the claim);
- preparation and submission of a statement of claim to the court , with the attachment of the necessary documents and calculations of the amounts collected from the Developer (see below);
- preliminary hearing;
- main court hearing and delivery of a court decision;
- entry into force of a court decision and receipt of a writ of execution;
- enforcement proceedings to collect penalties from the Developer (work of bailiffs).
Along with receiving a penalty from the Developer for the delay in delivery of the house, the shareholder, acting through the court, can also count on the following additional payments as compensation:
- compensation for losses incurred as a result of failure to deliver the house on time (for example, expenses for forced rental housing);
- compensation for moral damage (if the shareholder, for example, considers himself seriously offended and insulted, and manages to convince the court of this - Article 15, Federal Law “On the Protection of Consumer Rights”);
- a fine of 50% of the amount established by a court decision (in accordance with clause 6, article 13, Federal Law “On the Protection of Consumer Rights”) for failure to comply with the voluntary procedure for satisfying consumer requirements;
- reimbursement of legal expenses.
In order to competently file a lawsuit, recover through the court a penalty for late delivery of a house, and justify the losses and moral damages incurred by the shareholder, you need legal skills in such cases. Here you can’t do without specialized lawyers.
It will take about 5-6 months to get everything done. If someone is not very happy with the court decision and is appealed, it may take another 3-4 months.
You can file a claim both during the construction of the house and after its completion. But at the same time, you need to remember about the statute of limitations: if more than 3 years , then the court may refuse to collect a penalty from the construction company.
How to get money if the completion date of the house is postponed
At the end of the legal dispute, the shareholder receives a writ of execution. According to the law, the claimant has two options:
- hand it over to the bailiffs for execution,
- contact the bank where the insurance company has accounts.
We advise you to choose the second method, as it is faster and more effective. You can find out the bank details of the insurance company from the contract. You can submit a request to the tax office asking for a complete list of open accounts of the developer.
After checking the application by the bank's security service, the funds will be debited from the developer's account within 3 business days. If they are not enough, you can submit documents to another bank.
Chances and risks in disputes with a developer
No article can fully reveal all the intricacies of protecting rights in the field of shared-equity construction. If you are among the defrauded shareholders, and the question concerns such an expensive asset as real estate, we advise you not to take risks, but to contact highly qualified lawyers.
You should not hope that the trial is a mere formality and that the judge will be on your side. In fact, you will have to fight with experienced lawyers who will do their best to prove the absence of violations on the part of the developer.
The legal bureau “Kakhiev and Partners” will advise you on any issues that arise; you just need to bring all the documents with you. Our specialists will conduct a risk analysis, talk about the prospects of the case and, if necessary, act as a defense attorney in court. We are ready to use all our knowledge and experience to successfully resolve a controversial situation in your favor.
In law.
In cases of disputes with developers and DDU, you have the right to compensation for financial expenses and legal costs, as well as compensation for moral damage, collecting them in court.
Judicial order
In the claim, you describe the situation in more detail and increase the amount of the penalty, since several more days will pass before filing the claim. In the claim you also indicate that the actions of the developer in violating the deadlines for the delivery of the house caused you moral suffering, expressed in deteriorating health, constant worries that you might be left without an apartment.
Since this dispute falls into the category of consumer protection cases, you do not need to pay a state fee (unless the value of the claim is more than a million rubles, then the state fee is paid based on the value exceeding a million).
Next, you file a claim in court, in court the developer is obliged to prove why he is delaying the delivery of the house , submit the relevant documents, you need to provide a residential building agreement, a payment receipt, a claim.
When making a decision, the court will proceed from the factual circumstances of the case; you will need to confirm the fact that the developer must pay you a penalty in the stated amount. The court has the right to reduce its size, but to do this, the developer must provide appropriate evidence of the disproportionate nature of the penalty.
