The rights of a shareholder to receive monetary compensation in the event that a construction company is in no hurry to fulfill its obligations to transfer living space to the owner are specified and protected by federal law. The developer is obligated to pay a penalty-fine, which he must pay to the buyer. The fine is calculated and paid for each day of overdue time during which the object of shared participation is not transferred for use.
Independent calculation of penalties under DDU:
In accordance with Article 6, 214-FZ of December 20, 2004: “In case of violation of the contractual deadline for transferring a shared construction project to a participant in shared construction, the developer pays 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 Federation in force on the day of fulfillment of the obligation, from 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.”
Since the refinancing rate is currently identical to the key rate, therefore you need to look at the key rate.
The formula for calculating the penalty calculator for 214 fz:
In accordance with the Directive of the Bank of Russia “On the amount of the refinancing rate of the Bank of Russia,” the refinancing rate of the Central Bank of the Russian Federation from February 10, 2021 is 6%. The current refinancing rate can be viewed here.
1/300 of the refinancing rate - 6/300=0.02
Double Bet size is -6/150=0.04
Beginning of the period of delay:
The delay is considered from the day following the date of transfer of the apartment provided for in your Shared Participation Agreement (for example: “The Developer is obliged to transfer the Shared Construction Object to the Shared Construction Participant by September 31, 2021”). Therefore, the beginning of the period of delay must be considered from 01.11.2019.
Sometimes it is problematic to determine the date when the Developer is obliged to transfer the apartment to the participant in shared construction, if it is not clearly stated in the contract. This is done intentionally so that you are denied the collection of the Penalty. For example, the contract may contain the following description of the date of transfer of the apartment to the shareholder: “The apartment is transferred to the participant in shared construction within 3 months from the date of putting the object into operation.”
There is not a word in the contract about the date of putting the house into operation. In such a situation, you can try to get hold of a building permit. That is, if at the time of concluding the equity participation agreement the permit was issued, for example, before 05/31/2019, then we can assume that you were targeted at this date plus 3 months. But there are no guarantees that the court will condone this logic.
“The apartment is transferred to the participant in shared construction within 3 months from the moment the facility is put into operation. The approximate commissioning date is 01/01/2017. The Developer has the right to postpone the commissioning date without agreement with the Shareholder, but no more than once.”
Subsequently, the Developer exercised this right and postponed the commissioning date, immediately with a reserve of several years in advance, so that it would definitely not be possible to collect the Penalty. However, this provision is void by law, but only if you yourself did not meet the developer and did not sign an additional agreement to postpone the deadline. In this case, nothing can be done.
The amount of the deal:
Everything is simple here: Indicate the amount you paid under the agreement.
A nuance if you bought an apartment under an assignment agreement: the cost of the apartment is 10,000,000 rubles, and the Assignee (the person who assigned his rights to you under the equity participation agreement) paid only 5,000,000 rubles (that is, the Developer actually received 5,000,000 rubles) .
In such a situation, it is necessary to indicate the amount specified in the share participation agreement. There is a small amount of judicial practice that makes it possible to recover a Penalty from the full value of the assignment agreement (the amount paid for the assignment of the right of claim), but the likelihood of such claims being satisfied is low.
Current laws
The main document that regulates the relationship between the seller and the buyer is Federal Law N 214-FZ “On participation in shared-equity construction of apartment buildings and other real estate.” The legislation determines the rate: the basis is the refinancing rate of the Central Bank of the Russian Federation, fixed on the day the obligation is fulfilled, namely the exact date of delivery of the object. (according to Part 2, Article 6 of Federal Law No. 214-FZ).
It is possible to collect a fine from the violator even if the shareholder did not declare or demand anything. According to the law, the very fact of violation of the rights of the shareholder as a consumer by the construction company is sufficient (paragraph 46 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of June 28, 2012 No. 17).
How to determine the period for a penalty
Suppose that the delay in accepting the transfer of housing in shared construction due to the fault of the developer turned out to be long and at the same time covered several periods during which the Central Bank norm changed, a logical question arises: how to calculate correctly and more profitably?
There are only three options for calculating the penalty under the DDU:
- By periods during which different rates were in effect.
- As of the date of signing the APP.
- As of the current date, in the case when the APP was not signed.
In order to correctly calculate the penalty due to the shareholder, it is necessary to determine the longest period of delay that covers a particular norm.
If the delay covers the time until the end of 2015 (when the norm was 8.25%) and the rest of the time fell on intervals when different levels of the key rate were in effect, then it is advisable for the shareholder to calculate the amount of the penalty under one of the contractual agreements that were in force during the period of delay in 2021 of the year. Since their size before December 17, 2017 was significantly higher.
There is no established clear judicial practice and unanimity of opinions of courts on this issue. If the time of delay fell during the period when the CS began to decline, then it would be logical to use the CS in each separate period of its validity.
Features of accrual and collection of DDU in 2021
On April 2, 2021, Decree of the Government of the Russian Federation No. 423 was issued, according to which:
- Shareholders cannot recover penalties from developers for the period from April 3, 2021 to January 1, 2021;
- Shareholders cannot recover losses from developers (for example, expenses for paying rent for a rented apartment) caused by delays in transferring a shared construction project for the period from April 3, 2021 to January 1, 2021;
- Developers received a deferment in the payment of penalties, penalties, fines, and losses accrued until April 3, 2021. The deferment is provided until January 1, 2021.
These measures were taken by the government due to the inability of developers to carry out their activities during the pandemic.
Restrictions on the work of construction companies were introduced throughout Russia, but in each region the suspension periods were different, but nowhere was a ban on construction from April 3, 2021 to January 1, 2021 - the period during which the relaxations are valid. Thus, the period of release of developers from liability is many times longer than the duration of the temporary ban on construction.
In particular, in Moscow, construction sites were supposed to stop working on April 13, 2021 and were able to resume work on May 12, 2020. A month of forced downtime led to the cancellation of the developers' liability for a period of nine months, which cannot be called fair for the shareholder.
Overdue calculator taking into account Resolution No. 423 on the moratorium
No penalty will be charged from 04/03/2020 to 12/31/2020.
If the apartment has not been transferred according to the deed as of 04/02/2020, penalties are calculated at the rate of 6% in effect on the specified date. From 01/01/2021, penalties will be charged at a rate of 5%. Perform the calculations for each period separately and then add them up. If the delay covers the periods before and after the moratorium, then it is advisable to make the calculation based on the periods of validity of the Central Bank of the Russian Federation rates. Our calculator has such a function. Free legal consultations by phone. +7 (903) 120-51-06 daily from 9 a.m. to 11 p.m.
DDU calculator
The calculator will help the participant in shared construction calculate the amount of compensation. It is enough to copy the calculation process into the claim and send it to the developer. The program will automatically calculate the state fee if the value of the claim exceeds one million rubles. The program takes into account changes in all rates of the Central Bank of the Russian Federation and is relevant for 2021.
Moratorium on COVID-19
During the COVID-19 moratorium, the Bank of Russia changed the rate for calculating the penalty three times. From April 26, 2021, the rate is 5 percent per annum. Our DDU calculator is always up to date. Consider the penalty with us. Incorrect calculation leads to problems in court. It is advisable to first read this article in order to understand the principle of its operation and the economic benefits of it.
Due to constant changes in the key rate, calculations based on the periods of their validity are becoming increasingly relevant. Our calculator can perform such calculations. It can calculate the penalty not only on the date of fulfillment of the obligation, but also by the periods of validity of the rates. There is still no uniformity on this issue in the courts.
Which calculation method do the judges in your court prefer? Ready to advise. It's free. Judicial practice is constantly changing and we are aware of the latest changes.
We also help determine the period of delay if difficulties arise in interpreting the terms of the DDU. Hotline for free consultations with a trial lawyer daily from 9 a.m. to 11 p.m.
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We will calculate the penalty for free, and also advise on the recovery of damages from the developer in the amount of construction defects. Let's talk about recognizing a unilateral act as invalid. Consultation with a lawyer by phone. daily from 9 a.m. to 11 p.m.
The court agreed with the calculation by periods
The court agreed with the calculation for periods made using our DDU calculator.
The reasoned court decision exactly repeats the calculation made in our program. Taking into account the reduction in rates, this method was more profitable for our client. The claim stated a penalty of 760,358.76 rubles; they recovered 580,000 rubles, including a fine and moral damages. Thus, the court awarded in favor of the plaintiff 76 percent of the penalty stated in the claim.
Here is our judicial practice on DDU. Decisions and writs of execution have been posted. A good guide to different vessels. The ratio of the amounts requested in the statement of claim to the result obtained is indicated.
Here is the practice of recovery in arbitration court. For large amounts of penalties, recovery in arbitration court is a good alternative to courts of general jurisdiction. Look at the amounts we have collected. Isn’t it true that the ratio of the amounts requested in the claim to the result obtained is very good?
What do we enter into the DDU calculator?
We take the amount from the shared participation agreement, and not from the assignment agreement, even when we bought an apartment more expensive than the previous participant in shared construction.
Should I count by bet periods or not?
Depends on the court. Different judges think differently. A different approach to substantiating the calculation is required. You need to know the name of your court. Call and we will advise you.
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Is it possible to file a claim without waiting for the deed to be signed?
The penalty can be adjusted in the direction of its increase. If the apartment is not transferred according to the deed, the penalty is specified on the date of the court hearing. In some cases, in the pleading part of the claim, the penalty can be asked to be collected on the date of actual receipt of funds. In any case, there is no need to wait for the apartment to be transferred.
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Is it possible to recover the penalty in full if the defendant requests its reduction?
Yes it is possible. The secret is simple: our lawyers have extensive experience in collecting penalties from developers. First, we select the “correct” court from the possible options.
On the collection of penalties without reduction
We are building a legal line. We study correspondence with the developer and the features of a specific equity participation agreement. A good lawyer is a fighter who does not mince words. Here are examples of such solutions. We are not saying that this is always the case, but it is possible.
Excellent knowledge of civil law and extensive judicial experience help him competently fend off the defendant’s objections and arguments. A forensic lawyer for preschool education, also a bit of a psychologist. Each judge has his own key, which unlocks access to the judge’s heart.
Even the most callous judge can be moved to pity and the plaintiff can be presented in the most favorable light. Unlike a shareholder, a lawyer has the advantage that he sees a particular judge not for the first time in his life and knows what he can be “hooked” on. Our lawyers are always ready to help and we are happy to share with you our achievements in the courts.
See our judicial practice on DDU. Please contact us with any questions daily from 9 am to 11 pm by phone. +7 (903) 120-51-06.
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Clear browser cache when changing key rate
Many lawyers use our calculator, inserting calculations into claims and claims.
How to clear browser cache?
When the key rate changes, the programmer makes changes to the program. For them to apply, clear the cache in your browser before the next key rate change (Ctrl+F5).
This is necessary for the script to process the latest bet values. In order not to re-download information every time after visiting a previously visited page, all browsers save some of it in a cache. Those. it can store current rates for the previous time.
After clearing the browser cache, the bets will be automatically updated to the current ones. If you visited the page with the calculator for the first time, then you do not need to clear the cache in your browser.
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About working with a calculator on a mobile phone
1. The online calculator is designed in such a way that only its blue panel with the corresponding title is displayed on a mobile device. To be able to enter calculation data from your phone, you need to click on it. The panel is interactive; click the calculator to open.
2. If the working window of the calculator is open, but the calculation results are not available to you, you should: - update the browser version to the current one. — log in from a regular computer; on some mobile devices, the calculation results are not visible on the screen. — check if JavaScript is enabled in the browser.
3. If the recommendations did not help, write to us the name of the operating system and the name of the browser.
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DDU courts - tel. +7 (903) 120-51-06 Every day, 9 - 23 hours.
In what ways are penalties collected, and is it possible to get more?
This topic is very broad, and it is difficult to discuss it in a short article - it is better to seek clarification from the specialists of YurConsult. But in short, there are two ways to collect a penalty:
| Voluntary payment of the entire penalty under a share participation agreement in construction by the developer after filing a claim | This option is more fantasy than reality. There are no exact statistics, but based on the practice of YurConsult, we can conclude that the chances are approximately 15/100 that the developer will come to his senses and transfer money to his shareholders on demand. |
| “Knocking out” money through the court | Shareholders who do not want to put up with the arrogance and greed of the development company will have to face this. The process of filing a claim and the long period of its consideration can hardly be called pleasant, but there is something positive in this situation. If the court sides with the offended clients, the developer will have to pay in full in their favor in addition to the penalty
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Dynamics of the key rate since 2013
The formula for the online penalty calculator for DDU includes the refinancing rate, which serves as an important indicator of monetary policy. Currently, it is not formally linked to the actual indicators established by the Bank of Russia for certain types of transactions.
- from 04/26/2021 to today - 5.00%
- from 03/22/2021 to 04/23/2021 - 4.50%
- from 07/27/2020 to 03/19/2021 - 4.25%
- from 06/22/2020 to 07/26/2020 - 4.50%
- from 04/27/2020 to 06/21/2020 - 5.50%
- from 02/10/2020 to 04/26/2020 - 6.00%
- from 10/16/2019 to 02/09/2020 - 6.25%
- from 10.28.2019 to 12.15.2019 - 6.50%
- from 09.09.2019 to 27.10.2019 - 7.00%
- from 07/29/2019 to 09/08/2019 - 7.25%
- from 06/17/2019 to 07/28/2019 - 7.50%
- from 12/17/2018 to 06/16/2019 - 7.75%
- from 09.17.2018 to 12.16.2018 - 7.50%
- from 03/26/2018 to 09/16/2018 - 7.25%
- from 02/12/2018 to 03/25/2018 - 7.50%
- from 12/18/2017 to 02/11/2018 - 7.75%
- from 10.30.2017 to 12.17.2017 - 8.25%
- from 09.18.2017 to 10.29.2017 - 8.5%
- from 06/19/2017 to 09/17/2017 - 9.0%
- from 05/02/2017 to 06/18/2017 - 9.25%
- from 03/27/2017 to 05/01/2017 - 9.75%
- from 06/19/2016 to 03/26/2017 - 10.0%
- from 06/14/2016 to 06/18/2016 - 10.5%
- from 08/03/2015 to 06/13/2016 - 11.0%
- from 06/16/2015 to 08/02/2015 - 11.50%
- from 05/05/2015 to 06/15/2015 - 12.50%
- from 03/16/2015 to 05/04/2015 - 14.0%
- from 02.02.2015 to 15.03.2015 - 15.0%
- from 12/16/2014 to 02/01/2015 - 17.00%
- from 12/12/2014 to 12/15/2014 - 10.50%
- from 05.11.2014 to 11.12.2014 - 9.50%
- from 07/28/2014 to 11/04/2014 - 8.0%
- from 04/28/2014 to 07/27/2014 - 7.50%
- from 03.03.2014 to 27.04.2014 - 7.0%
- from 09/13/2013 to 03/02/2014 - 5.50%
Penalty upon termination of DDU
If one of the parties is not satisfied with the compliance of the terms of the agreement by the other party, the agreement may be terminated. Termination occurs unilaterally or by agreement of both parties. But in any case, a penalty must be paid.
- The construction of an individual or apartment building may be significantly delayed compared to the original deadlines. If this happened outside the contractor, the construction customer or the future owner has the right to pay a penalty.
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