According to paragraph 1 of Article 130 of the Civil Code of the Russian Federation, immovable things (real estate, real estate) include land plots, subsoil plots and everything that is firmly connected to the land, that is, objects whose movement without disproportionate damage to their purpose is impossible, including buildings, structures, unfinished construction projects.
Current legislation classifies unfinished construction objects as real estate (clause 1 of Article 130 of the Civil Code of the Russian Federation; real estate includes land plots, subsoil plots and everything that is firmly connected to the land, that is, objects whose movement without disproportionate damage to their purpose is impossible, including buildings, structures, unfinished construction objects).
This means that it is possible to register ownership of unfinished construction projects, just like other real estate objects on the territory of the Russian Federation. Let's consider the possible options for actions of shareholders depending on what kind of agreement they signed with the developer.
Agreement on shared participation in construction (DDU)
In most cases, developers enter into agreements with shareholders for shared participation in construction, in accordance with the requirements of the Federal Law of December 30, 2004 No. 214-FZ “On participation in shared construction of apartment buildings and other real estate and on amendments to certain legislative acts of the Russian Federation "
In this case, there is no point in worrying about a possible suspension of construction, since the right to claim an unfinished construction project is guaranteed by an agreement on shared participation in construction concluded with the developer.
However, in the event of bankruptcy of the developer, the shareholder will still have to take a number of actions in order to confirm his rights of claim to the apartment purchased from the developer (namely an apartment, not an office or garage). The shareholder will need, after initiating a bankruptcy case for the developer in an arbitration court, to submit an application for inclusion of claims in the register of claims for the transfer of residential premises into ownership. After including the shareholder’s demands in the above register, in the event of the developer’s bankruptcy, the local administration at the location of the unfinished construction project will itself select a new developer, who will complete the construction of the facility at his own expense and transfer it to the ownership of the shareholders. If there is a concluded share participation agreement, there is no point in filing a claim in court for recognition of the ownership right to the unfinished construction, since such an agreement itself, after its state registration, guarantees the participant in shared construction that, in the future, albeit with a significant deviation from previously agreed terms, the shareholder will be able to formalize ownership of the real estate he paid for at the construction stage.
Statement of claim for recognition of ownership of an unfinished construction project (sample)
Construction and technical examination of an unfinished construction project
During the consideration of the case by the court, any party has the right to file a petition to appoint a construction and technical examination.
The petition must be submitted to the court in writing and the need for such an examination must be duly justified. When making an application, the person must indicate what questions should be put to the expert, e.g.
- Describe the unfinished construction project;
- What technical condition is it in?
- Do the technical characteristics of the capital construction object correspond to the technical characteristics and according to what criteria?
- Is it possible to use the disputed object for the purpose of further construction of the declared project object?
- Was it built in accordance with the design and the issued building permit?
- Does the existing work-in-progress property match the technical description of the property? If not, what is the mismatch?
- Is the disputed object firmly connected to the ground? If yes, then due to what structural elements?
- Can a building be moved without commensurate damage to its purpose?
- Did the construction of the property require a building permit?
- Is there a violation of urban planning norms and rules during construction?
- When was the future house, garage, or other building built?
An expert’s conclusion based on the results of a construction and technical examination will be reliable evidence of the existence of a building on a land plot, which, for example, was leased.
ATTENTION: if an unfinished construction project was created before the conclusion of the lease agreement and before the registration of ownership of it, then this can be established during an examination, which will entail the court establishing that the construction was illegal and, as a consequence, registering ownership of it.
It is worth paying attention to the following points regarding the examination conclusion:
- that the expert’s report provides complete answers to the questions raised;
- so that the competence of experts, their status, level of education, and work experience are confirmed;
- you can receive a written opinion on the received expertise of other specialists;
- You can ask to call an expert to give explanations at the court hearing.
Preliminary purchase and sale agreement
A well-known way for many developers to avoid taxation and the need to conclude and state registration of a share participation agreement in construction is to conclude a preliminary purchase and sale agreement with the shareholder.
The meaning of the documents drawn up by the developer is that the shareholder allegedly transfers funds to the developer under an interest-free loan agreement, with the developer’s obligation to return this amount of money to the shareholder on a certain date. Upon the specified date, the equity holder signs with the developer the main agreement for the purchase and sale of the apartment, as well as an offset agreement, which states that the amount of the interest-free loan is counted by the developer as payment by the equity holder for the cost of the purchased property.
In the event of a significant violation of the deadlines for completing construction or the bankruptcy procedure of the developer, shareholders need to confirm their rights to the acquired object in court. You can do it like this:
- File a lawsuit to confirm the right of claim to the apartment, office or garage being purchased, and the obligation of the developer to transfer this object into the ownership of the shareholder upon completion of construction of the building;
- File a claim in court for recognition of ownership rights to an unfinished construction project by presenting in court documents confirming that the shareholder paid the cost of the unfinished construction project in full, and that the payment was made precisely to repay the cost of this object, and not because the desire of the shareholder to simply transfer money to the developer under the contract.
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What do legal acts say about ownership of new property?
The main regulatory document on the emergence and termination of ownership of real estate is the Civil Code of the Russian Federation.
Article 218 of the Civil Code of the Russian Federation states that if a new thing was made by someone for himself and all established rules and regulations were observed, then such a person has the right to purchase it for himself. With regard to the right of ownership of real estate, which by law is required to be registered, a special rule applies: the object will be owned only after an entry about it is made in the register of the registration service.
We already know from the court case that the company was given a plot of land for multi-storey residential development in 2005 on the basis of a lease agreement, and in October 2008 a building permit was received.
Federal Law No. 218-FZ of July 13, 2015 on real estate registration established that it is possible to take an object into account in the cadastre and register the right to it only if the task or structure is officially built. This means that the object has a permit for construction and commissioning, and for the plot of land where the object is located - a lease agreement or other document confirming the right of ownership or use. If the object is not completed, it will be enough to provide a technical plan for the property and documents for the land, or a document on the basis of which it is possible to build objects without providing a plot of land.
Co-investment or investment deposit agreements
Often developers enter into co-investment agreements or investment contribution agreements.
If there is such an agreement and after the construction of the invested object is suspended, including due to the possible bankruptcy of the developer, investors (co-investors) should file a lawsuit to recognize the agreement concluded with them as a sham transaction and recognition of ownership of the unfinished construction project.
The fact is that this kind of agreements, in most cases, do not fall under the requirements of the Federal Law of December 30, 2004 No. 214-FZ “On participation in shared construction of apartment buildings and other real estate and on amendments to certain legislative acts of the Russian Federation "
This type of agreement may not be registered with the Rosreestr Office, and no one may even know about the existence of such agreements even though the original developer himself. And this circumstance means the possibility of “double sales”, re-registration of documentation for an object under construction according to the rules of shared participation in construction for other persons, as well as the demolition of an unfinished object as an unauthorized construction, without paying any monetary compensation to the construction investors.
In order to avoid such negative consequences, in case of violation of the deadlines for the completion of construction of a real estate property or initiation of bankruptcy proceedings for the developer in an arbitration court, it is better for investors (co-investors) to apply to the court at the location of the property under construction with a claim, in which they ask the court to recognize the agreements they have concluded as sham transactions, apply to these transactions the rules of contracts for the provision of services (in this case, a construction contract, the condition of which is the construction by the defendant of a building and the subsequent transfer of premises in this building into the ownership of the plaintiff), and recognize the ownership of the invested real estate as unfinished construction objects .
After receiving a positive court decision, investors (co-investors) will be able to register their ownership of unfinished construction projects, and thereby guarantee themselves the subsequent registration of ownership of these objects after the completion of construction of houses, garages, offices, etc., or ( in the event of demolition of an object under construction as an unauthorized construction), receiving monetary compensation for the demolished property.
Case N89-КГ16-10. On recognition of ownership of a share in an unfinished construction project.
Laws and codes » Civil Code of the Russian Federation - part one » Section II. Ownership and other real rights » Chapter 14. Acquisition of property rights » Article 219. Emergence of ownership rights to newly created real estate » Case N89-КГ16-10. On recognition of ownership of a share in an unfinished construction project. SUPREME COURT OF THE RUSSIAN FEDERATION
DEFINITION
dated January 24, 2021 N 89-KG16-10
The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation, consisting of:
presiding Gorshkov V.V.
judges Romanovsky S.V., Getman E.S.
considered in open court a civil case based on the claim of G.M. Kokorina. to the housing construction cooperative "Consent", Ivanova I.N. on the recognition of ownership of a share in an unfinished construction project, according to the cassation appeal of the representative Kokorina G.M. — Petrova L.G. to the appeal ruling of the judicial panel for civil cases of the Tyumen Regional Court dated June 8, 2021.
Having heard the report of the judge of the Supreme Court of the Russian Federation V.V. Gorshkov, the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation
installed:
Kokorina G.M. filed a lawsuit against the Housing Construction Cooperative "Soglasie" for recognition of ownership of a share in the form of a one-room apartment, according to the explication (plan) of the floors of project 1A, with a total area of <...> sq. m, located on the 8th floor of the 1st entrance in an unfinished building - residential building GP 2-3 (block section 1) at the address: <...>, bypass road - MZhK area, plot <...>, indicating in support of the stated requirements that on September 5, 2003, agreement N <...> was concluded between her and the Consumer Cooperative for Financial Support of Citizens “ZhilStroyKredit”, on the basis of which the cooperative provided her with a loan in order to purchase the specified one-room apartment. March 21, 2006 between Tyumen-Lukoil-Stroy LLC and G.M. Kokorina. an agreement was concluded for the shared construction of a brick, ten-story residential building on the street <…> (microdistrict <…>) N <…> for a state enterprise in the city <…>. The plaintiff fulfilled her obligations under the contract in full. Currently, Tyumen-Lukoil-Stroy LLC has been declared bankrupt and liquidated; the unfinished residential building has been transferred to the Soglasie housing cooperative, which is constructing the said house.
The defendants did not recognize the claims at the court hearing and asked to refuse to satisfy them.
By the decision of the Leninsky District Court of Tyumen dated March 10, 2021, in satisfaction of the claims of Kokorina G.M. denied.
By the appeal ruling of the judicial panel for civil cases of the Tyumen Regional Court dated June 8, 2021, the decision of the first instance court was canceled, and a new decision was made in the case to refuse to satisfy the claim.
Representative Kokorina G.M. — Petrova L.G. a cassation appeal was filed, which raised the issue of transferring it with the case for consideration at a court hearing of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation to cancel the appeal ruling of the Judicial Collegium for Civil Cases of the Tyumen Regional Court dated June 8, 2021.
In connection with the cassation appeal filed on August 30, 2021 against the said court decision and doubts about its legality by the judge of the Supreme Court of the Russian Federation V.V. On October 11, 2021, the case was requested to the Supreme Court of the Russian Federation for verification based on the arguments of the cassation appeal and the ruling of the same judge dated December 20, 2021, cassation appeal by representative G.M. Kokorina. — Petrova L.G. with the case were transferred for consideration in a court session of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation.
Having checked the case materials and discussed the arguments of the cassation appeal, the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation finds that there are grounds provided for by law to satisfy the cassation appeal and cancel the appeal ruling of the Judicial Collegium for Civil Cases of the Tyumen Regional Court dated June 8, 2021.
In accordance with Article 387 of the Civil Procedure Code of the Russian Federation, the grounds for canceling or changing court decisions in cassation are significant violations of substantive or procedural law that influenced the outcome of the case, without eliminating which it is impossible to restore and protect violated rights, freedoms and legitimate interests, and also protection of public interests protected by law.
The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation finds that when considering this case, a significant violation of the norms of substantive and procedural law was committed by the court of appeal.
Resolving the dispute and refusing to satisfy the claims made by Kokorina G.M. requirements, the court of first instance proceeded from the fact that the plaintiff did not provide evidence of full fulfillment of obligations to finance the construction project, while Kokorina G.M. is not a member of the Soglasie housing cooperative, which is not the legal successor of Tyumen-Lukoil-Stroy LLC, and therefore there are grounds for recognizing the plaintiff’s ownership of a one-room apartment with a total area of <...> sq. m, located on the 8th floor of the 1st entrance in an unfinished building - residential building GP 2-3 (block section 1) at the address: <...>, bypass road - MZhK area, plot <...>, not available.
The appellate court did not agree with this conclusion and, canceling the decision of the trial court with a new decision to reject the claim, indicated that the trial court, without grounds established by law, went beyond the stated requirements and made a decision on a claim that the statement of claim did not contain, that by virtue of Part 3 of Article 330 of the Civil Procedure Code of the Russian Federation, it is a basis for canceling a court decision.
In accordance with Part 1 of Article 327 of the Civil Procedure Code of the Russian Federation, the appellate court re-considers the case in a court hearing according to the rules of proceedings in the court of first instance, taking into account the features provided for in Chapter 39 of this Code.
The court's decision must be legal and justified (Article 195 of the Civil Procedure Code of the Russian Federation).
The reasons for the court decision must indicate the circumstances of the case established by the court; the evidence on which his conclusions about those circumstances are based; reasons why the court rejects certain evidence; the laws that guided the court (part 4 of article 198 of the Civil Procedure Code of the Russian Federation).
The decision is justified when the facts relevant to the case are confirmed by evidence examined by the court that meets the requirements of the law on their relevance and admissibility, or by circumstances that do not require proof (Articles 55, 59 - 61, 67 of the Civil Procedure Code of the Russian Federation), as well as when it contains exhaustive conclusions of the court arising from the established facts (paragraphs 2, 3 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of December 19, 2003 23 “On the Judgment”).
The specified requirements of the procedural law and the explanations of the Plenum of the Supreme Court of the Russian Federation when considering the case by the court of appeal were not met.
When considering the appeal of Kokorina G.M. The appellate court came to the conclusion that the court of first instance, without grounds established by law, went beyond the stated requirements by considering and satisfying the claim of G.M. Kokorina. on recognition of ownership of the apartment.
Meanwhile, from the operative part of the decision of the court of first instance, it is clear that the court satisfied the demands of Kokorina G.M. recognition of ownership of the apartment was refused.
The judicial panel of the Tyumen Regional Court also indicated that the plaintiff’s demand for recognition of ownership of a share in an unfinished residential building cannot be satisfied, since it was not stated by G.M. Kokorina. in the court of first instance.
Thus, the conclusions of the appellate court are mutually exclusive, since Kokorina G.M. The statement of claim contained a requirement for recognition of ownership of a share in the form of a one-room apartment in an unfinished building - a residential building, which, in the opinion of the judicial panel, was not considered by the court of first instance, which considered the requirement for recognition of ownership of the apartment.
In addition, in violation of the requirements of Part 1 of Article 327.1 of the Civil Procedure Code of the Russian Federation, the appellate court did not consider the arguments of the plaintiff’s appeal in full.
According to paragraph 1 of Article 218 of the Civil Code of the Russian Federation, the right of ownership to a new thing manufactured or created by a person for himself in compliance with the law and other legal acts is acquired by this person.
According to paragraph 1 of Article 4, paragraph 1 of Article 6 of the Law on participation in shared construction, under an agreement for participation in shared construction, one party (the developer) undertakes to build (create) an apartment building and ( or) another real estate object and, after receiving permission to commission these objects, transfer the corresponding shared construction object to the participant in shared construction, and the other party (participant in shared construction) undertakes to pay the price stipulated by the contract and accept the shared construction object if there is permission to commission an apartment building houses and (or) other real estate.
The developer is obliged to transfer the shared construction object to the participant in shared construction no later than the deadline, which is stipulated by the contract and must be the same for participants in shared construction, to whom the developer is obliged to transfer shared construction objects that are part of an apartment building and (or) other real estate or as part of a block - section of an apartment building with a separate entrance with access to a common area.
In accordance with Article 382 of the Civil Code of the Russian Federation, the right (claim) belonging to the creditor on the basis of an obligation may be transferred by him to another person in a transaction (assignment of the claim) or transferred to another person on the basis of law.
According to Article 384 of the Civil Code of the Russian Federation, unless otherwise provided by law or agreement, the right of the original creditor passes to the new creditor to the extent and on the conditions that existed at the time of transfer of the right.
According to the provisions of Articles 309, 310 of the Civil Code of the Russian Federation, obligations must be fulfilled properly in accordance with the terms of the obligation and the requirements of the law and other legal acts. Unilateral refusal to fulfill an obligation and unilateral change of its terms are not allowed, except in cases provided for by law.
From the above provisions of the norms of current legislation it follows that the emergence of the plaintiff’s ownership right, as a participant in shared construction, to residential premises in a house under construction is associated with the fulfillment by the participants in shared construction of the obligations assigned to them by the contract.
The decision of the Leninsky District Court of Tyumen dated February 21, 2013, which entered into legal force, established that payment for the shared construction project under the agreement dated March 21, 2006 was made in full.
According to paragraph 2 of Article 61 of the Civil Procedure Code of the Russian Federation, the circumstances established by a court decision that has entered into legal force in a previously considered case are binding on the court. The specified circumstances are not proven again and are not subject to challenge when considering another case in which the same persons participate.
The court found that the developer did not transfer the residential premises to the participant in shared construction within the period stipulated by the contract due to the fact that the construction of the residential building as a whole was not completed, the house was not put into operation, Tyumen-Lukoil-Service LLC, which is constructing the above-mentioned residential building , liquidated.
The unfinished construction project was transferred to the defendant ZhSK Soglasie for completion of construction.
At the time of transfer of the unfinished construction project to the Soglasie housing complex for completion of construction, the disputed residential building was partially built, i.e. The completed work on the construction of a residential building in the form of the right to an unfinished construction project was transferred to the defendant, the Soglasie housing cooperative.
Part 1 of Article 130 of the Civil Code of the Russian Federation provides that immovable things (real estate, real estate) include land plots, subsoil plots and everything that is firmly connected to the land, that is, objects whose movement without disproportionate damage to their purpose is impossible, including including buildings, structures, objects of unfinished construction.
According to paragraph 30 of the resolution of the Plenum of the Supreme Court of the Russian Federation No. 10, the Plenum of the Supreme Arbitration Court of the Russian Federation No. 22 of April 29, 2010 “On some issues arising in judicial practice when resolving disputes related to the protection of property rights and other property rights”, in accordance with Article 130 of the Civil Code of the Russian Federation, objects of unfinished construction are classified by law as real estate.
From the meaning of these norms in conjunction with the provisions of Part 2 of Article 25 of the Federal Law of July 21, 1997 N 122-FZ “On state registration of ownership rights to real estate and transactions with it”, it follows that the current legislation does not provide for a ban to receive and remain in the ownership of citizens, legal entities and individual entrepreneurs of unfinished construction projects.
The provisions of the Law on Participation in Shared Construction, which applies to the legal relations of the parties in the dispute under consideration, regulate, among other things, the legal mechanism for protecting the rights of participants in shared construction in the event of failure to fulfill contractual obligations by the developer. Recognition of the ownership right of a participant in shared construction to an unfinished object under construction (or a share in it) at the stage before commissioning is not directly provided for by this Law as one of the measures for implementing such a legal protection mechanism.
Meanwhile, in accordance with Part 1 of Article 9 of the Civil Code of the Russian Federation, citizens and legal entities, at their own discretion, exercise their civil rights, while the limits of the exercise of civil rights are defined in Article 10 of the Civil Code of the Russian Federation, and methods of protection - in Article 12 of the Civil Code Code of the Russian Federation, which enshrines the recognition of rights as one of the methods of judicial protection of a violated right.
Within the meaning of Articles 11 and 12 of the Civil Code of the Russian Federation in their entirety, the prerogative in determining the method of protecting a violated right belongs exclusively to the person who applied to the court for such protection, that is, the plaintiff.
The law on participation in shared construction also does not contain a prohibition on recognizing ownership of an unfinished object (or a share in it).
In accordance with Article 219 of the Civil Code of the Russian Federation, the right of ownership of buildings, structures and other newly created real estate, property subject to state registration, arises from the moment of such registration.
According to paragraph 2 of Article 8 of the Civil Code of the Russian Federation, rights to property subject to state registration arise from the moment of registration of the corresponding rights to it, unless otherwise provided by law.
According to the explanations contained in paragraph 59 of the resolution of the Plenum of the Supreme Court of the Russian Federation No. 10, the Plenum of the Supreme Arbitration Court of the Russian Federation No. 22 of April 29, 2010 “On some issues arising in judicial practice when resolving disputes related to the protection of property rights and others property rights”, unless otherwise provided by law, the claim for recognition of the right is subject to satisfaction if the plaintiff presents evidence of the emergence of the corresponding right.
Recognition of rights is one of the ways to protect rights. In this case, a person who considers himself the owner of the disputed property must prove the legality of the grounds for the emergence of ownership of real estate (Article 12 of the Civil Code of the Russian Federation).
Ownership of an unfinished construction project may be recognized by a court decision.
The fact that the construction of the disputed residential building at the time of consideration of the case by the court cannot violate the plaintiff’s right to protect his civil rights by recognizing the ownership of a share in the ownership of an unfinished construction project, since, based on the provisions of Articles 309, 310 of the Civil Code Code of the Russian Federation, a participant in shared-equity construction who has properly fulfilled its obligations under the contract by paying rent in full, has the right to count on proper fulfillment of obligations under the contract on the part of the investor, and if the other party fails to fulfill its obligations, to demand protection of its rights, including number and by presenting a requirement for recognition of the right to a share in common shared ownership in an unfinished construction project in the form of an apartment and determining the size of the share in common shared ownership in an unfinished construction project.
At the same time, the fact that the developer is currently liquidated, and the Soglasie housing cooperative, which is currently completing the construction of the disputed facility, is not a party to the agreement concluded with the plaintiff, and the plaintiff is not a member of the housing cooperative, has no legal significance in resolving this dispute. since these circumstances do not affect the rights of the plaintiff, who has fulfilled in full his obligations under the share participation agreement in construction.
Under the above circumstances, a change of developer during the period of long-term construction of a house does not indicate the termination of previously arising obligations to transfer the disputed residential premises to the plaintiff, and also does not indicate the emergence of these legal relations between the parties again.
In such circumstances, the court should have assessed the circumstances of the presence or absence of legal claims of third parties in relation to the construction project specified by the plaintiff, as well as the violation of the rights of members of the Soglasie housing cooperative if the demands of G.M. Kokorina were satisfied, which was not fulfilled by the court of first instance, and by the appellate court authorities were left without attention.
According to Part 1 of Article 327 of the Civil Procedure Code of the Russian Federation, the appellate court re-considers the case in a court session according to the rules of proceedings in the court of first instance, taking into account the features provided for in Chapter 39 of this Code.
Re-examination of the case in the court of appeal involves checking and assessing the factual circumstances of the case and their legal qualification (paragraph 21 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated July 19, 2012 No. 13 “On the application by courts of the norms of civil procedural legislation governing proceedings in the court of appeal ").
Taking into account that the above-mentioned requirements of the law and the instructions of the Plenum of the Supreme Court of the Russian Federation were not met by the court of appeal when considering this case, as well as the need to comply with reasonable deadlines for legal proceedings (Article 6.1 of the Civil Procedure Code of the Russian Federation), the Judicial Collegium for Civil Cases of the Supreme Court The Court of the Russian Federation finds the appeal ruling of the judicial panel for civil cases of the Tyumen Regional Court dated June 8, 2021 subject to cancellation and the case being sent for a new appeal hearing.
Based on the above, guided by Articles 387, 388, 390 of the Civil Procedure Code of the Russian Federation, the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation
determined:
The appeal ruling of the judicial panel for civil cases of the Tyumen Regional Court dated June 8, 2021 is cancelled, and the case is sent for a new trial to the appellate court.
