What you didn't know about and clicked your beak
The Moscow region is the leader among Russian regions in terms of the pace of housing construction. However, not all developers meet the stated deadlines for commissioning housing. Objects are often delivered with a delay of a year or even more. And if we take into account that people buy most apartments in new buildings with a mortgage, then this situation can hurt the family’s pocket, because many have to not only repay the loan, but also pay for rent. «MK» decided to find out how shareholders can protect their rights if the developer violates the housing delivery deadline.
According to Mikhail Podolsky, a defender of the rights of defrauded shareholders, almost half of all new buildings in the Moscow region are being delivered late for one reason or another, and both economy and business class properties are being delivered with delays. And the point here is not only the unreliability of the developer or his precarious financial position. Most often, deadlines are missed when the residential complex has already been built and the connection of the facility to communications begins, says the expert.
There has long been a monopoly on the market for such services, and suppliers do not always cope with the flow of applications, and sometimes old utility networks are not designed at all for the pace of housing construction that we see now in the Moscow region. So it turns out that a residential complex can be built in less than a year, and then it stands for several more years waiting for heat, water and gas to be connected to it. What should a shareholder do in this case: should he humbly wait for “the weather by the sea” or can he still fight for his rights?
“Indeed, many shareholders find themselves in situations where the deadlines for the construction and commissioning of a house are missed. But this is not a reason to tear your hair out. Federal Law No. 214 provides for compensation for missed deadlines. Moreover, the amounts can be very significant: a million or even more,” explains lawyer Mikhail Podolsky.
At the same time, the expert clarifies that home buyers often confuse such concepts as the deadline for commissioning a building and the deadline for signing the acceptance certificate for an apartment, although these are two different things. The contract with the developer specifies the date of signing the acceptance certificate — this is the moment when the meter should be turned on, and if the developer violates the deadline for signing the acceptance certificate, it is obliged to pay a penalty to the equity construction participant.
By the way, many developers try not to include this condition in the equity participation agreement (DDU). However, the principle of the rule of law applies here, therefore, regardless of whether there is such a clause in the agreement or not, the court will side with the defrauded equity holder and collect a penalty from the developer. Moreover, the equity holder does not need to prove the guilt of the developer: the very fact of delay is already sufficient grounds for penalties against him.
“If the developer postpones the deadline for signing the apartment acceptance certificate by more than 2 months from the date specified in the contract, you have the right to demand a penalty from him or refuse the contract and ask for your money back. Although most often developers in such situations offer shareholders to sign an additional agreement to the agreement on changing the term if they understand that they are late in issuing the keys,” says Podolsky.
The expert explains that no one has the right to force a shareholder to sign an additional agreement . After all, in this case it will no longer be possible to receive a penalty from the developer.
“To receive compensation for failure to meet the agreed deadlines, you need to send a claim to the developer demanding payment of a penalty. If an amicable agreement cannot be reached, you will have to file a claim in court — for this you will need a copy of the claim against the developer, a statement of claim and copies of documents related to the transaction. While the court is considering the claim, the amount of the penalty will increase. In addition, the court may additionally collect from the developer 50% of the declared amount of the penalty in the form of a fine,” the lawyer continues.
Compensation for delay is accrued in the amount of “one three hundredth of the refinancing rate of the Central Bank of the Russian Federation, effective on the day the obligation is fulfilled, of the contract price for each day of delay. For example, if you have entered into a contractual agreement for an apartment worth 10 million rubles, and the delay in delivery is a year, then the amount of the penalty can reach from 1.5 to 2 million rubles. So, with a competent approach, you can achieve significant compensation for violation of deadlines for the delivery of an apartment.
“The statute of limitations for such cases is 3 years, sometimes equity holders try to first get the keys to the desired apartment, and then put it up claims to the developer. I think this is reasonable. But if the deadline for signing the housing acceptance certificate is already close, and there is silence on the construction site, you should think about terminating the contract with the developer and demand a refund. If the construction company declares itself bankrupt, then you will definitely have to go to court, and this should be done as quickly as possible. After all, everything here is like in the well-known proverb: whoever gets up first gets the slippers,” advises the expert.