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Trial and enforcement of judgment

Entrepreneurs involved in the creation of real estate (developers) often carry out their activities using borrowed funds. For this reason, if the exchange rate rises or financial problems arise due to other factors, construction is delayed or stopped altogether.

Russian laws clearly state that if the developer does not transfer the apartment to the shareholder within the period specified in the Share Participation Agreement, then such neglect of its obligations gives the shareholder the right to collect a penalty.

Agreement of participation in shared construction (DDU)

An equity participation agreement in construction is a profitable and convenient tool for purchasing housing. Nowadays, quite often in your life you can come across the concept of “DDU” or “equity agreement”. Of course, this is due to the rapidly developing real estate market, which is why a person has a number of questions regarding this concept.

Shared construction is regulated by 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.” It is this legal act that defines important norms of the law regarding DDU.

As practice shows, construction organizations often seek to circumvent this legislative act. They create cooperatives without concluding share participation agreements with clients, or offer to sign an agreement in advance without registering it with Rosreestr. If the developer uses such tactics, it may not be so easy to collect penalties (penalties) under an equity participation agreement (DPA). If the agreement is signed and registered with Rosreestr, the process is simplified.

How to get a penalty from a developer? If you carry out all the steps correctly, it is quite possible to collect a penalty under the DDU agreement.

General algorithm for collecting penalties under DDU

Selecting a work plan

First instance

Appellate instance

Execution of the decision

Submitting a claim to the developer

Selecting a work plan

(arbitration or general jurisdiction)

First instance

Appellate instance

Execution of the decision

Application for legal assistance

When analyzing the collection of penalties, it is necessary, firstly, to highlight the pre-trial procedure. A well-drafted claim is the key to your success, as practice shows. When making a claim, we refer to Article 6 214-FZ, indicate the amount of the penalty required by law and Article 310 of the Civil Code of the Russian Federation, as well as the period for putting the building into operation, which is available in your contract. There is no point in submitting the claim in person, against signature. It must be sent to the legal address and the address from the contract, if it differs from the legal one (at least even by one letter or number).

Secondly, judicial procedure (for example, the following documents are required: a copy of the DDU, copies of payment documents (confirming payment in accordance with the agreement in question), documents that can confirm additional expenses; in the case of concluding an assignment agreement - a copy of it; document , confirming the transfer of the complaint). If the period expires and the developer fails to fulfill its obligations (that is, to voluntarily pay penalties under the agreement in question), a fine is imposed (plus 50% of the collected amounts).

Formula for calculating the amount of penalty under DDU

Despite a fairly complete theoretical basis on this issue, everything is not always so obvious. We discussed these issues in more detail in articles about calculating the period of delay in delivering an apartment and calculating the penalty for late delivery of an apartment. In this section we will talk aboutCalculation of the amount of the penalty under the DDU is more brief.

The amount of the penalty for the DDU, which the negligent contractor is obliged to pay to citizens participating in shared construction, is calculated using the following formula:

1/150 X SR X KDP X CD, Where

SR - refinancing rate of the Bank of Russia,

KDP - number of days of delay,

CD - contract price.

From January 1, 2016, the refinancing rate in calculations is the same as the key rate, which at the time of writing is 7%. If the developer stipulates otherwise in the contract, you can sue him.

Sometimes even a calculator does not help to make correct calculations of the penalty for the DDU. Next, we will consider a more detailed calculation of late fees.

An example of calculating the amount of a penalty under a DDU

Calculations are regulated by 214-FZ. Their correctness is important, because the developer often does not deny the fact that the deadlines were violated, but wants to reduce the fine.

Let’s say that in city “A” of the Russian Federation there is a developer “B”. In accordance with the terms of contract “B”, it is necessary to obtain permission to put facility “C” into operation in the second quarter of 2019. “C” is transferred within the framework of the acceptance certificate within 2 months, that is, the deadline for the transfer of “C” into operation is 08/31/2019:

• 06/30/2019 is the deadline for obtaining permission to put “C” into operation.
• 08/31/2019 is the deadline (add two months (July and August), counting from 06/30/2019) for the transfer of “C” into operation to the participant in shared construction.

Let “C” actually be transferred to the participant on 10/01/2019. Then it turns out that for the period from 09/01/2019 to 10/01/2019, the participant has the right to receive a penalty.

Leave your details, we will call you back and advise you on the calculation of the penalty.

Application for legal assistance

Losses in case of delay in transfer under DDU

In addition to collecting penalties for the DDU, a participant in shared construction has the right to demand compensation for losses incurred in connection with the delay in the transfer of the property to him. This may be a rent payment (if the shareholder rents a house), or an increased (before registration of ownership) interest on a mortgage loan. These additional costs must be documented.

To prove such losses, the project participant must provide:

• residential rental agreement,
• documents confirming relevant expenses.

What to do if an agreement on the assignment of rights under the DDU has been concluded?

It happens that an apartment in a new building is sold through an intermediary (agreement on the assignment of rights - assignment). In such a situation, the contract for the purchase of premises may indicate an incorrect date for receiving housing or may not indicate this date at all. In this case the day specified in the original DDU should be taken into account with the development company.

It is the developer who owes the penalty under the DDU, and not the previous participant in shared construction who transferred the object to the buyer under an assignment agreement.

How to write a claim to the developer for payment of a penalty?

In order to collect penalties under the DDU, it is necessary to follow a certain sequence of actions. You need to start with a pre-trial claim demanding payment of a penalty. It is not necessary to write it, but it makes sense - in order to receive a fine of 50% of the collected amount later. As practice has shown, this requires compliance with all the conditions listed below.

1. Proper direction. The claim was sent by a valuable letter with a list of attachments. The recipient is a legal entity - the developer, and the address corresponds to the address from the contract or from the Unified State Register of Legal Entities at the time of sending. Or the claim was sent (transferred) in a different way and the developer’s refusal to voluntarily pay sanctions was received with reference to the claim he received.
2. Link to law. The text indicates the basis for payment of the penalty - Federal Law of December 30, 2004 No. 214-FZ “On participation in shared-equity construction of apartment buildings and other real estate and on amendments to certain legislative acts of the Russian Federation.”
3. Calculation formula. The letter of claim indicates the fact of violation and the above formula from 214-FZ. It is worth calculating a fixed amount only if the transfer deed has been signed, which means you know exactly the number of days of delay and the current refinancing rate. Calculating a fixed amount without this data can cause confusion, so it is better not to do this.
4. Bank details. The text contains bank details for voluntary payment of sanctions: Last name, First name, Patronymic, recipient's account, name, BIC, correspondent bank account (not necessary if the developer already has these details - for example, payment of the price of the participation agreement was made from the client's account) .
5. Signature . The claim was signed by a participant in shared construction.

By writing to us by email, you can request an example (sample) of a claim to the developer for payment of a penalty.

How to properly send a claim for a penalty to the developer?

The sequence of steps is as follows.

4. Fill out the notification form according to the sample.

5. Fill out two copies of the inventory. In the description of the document, add not just “Claim”, but indicate the basic requirements.

6. Enclose one copy of the claim in the envelope.

7. Give the postal worker an envelope with an attachment, a notification form and two copies of the inventory, on which he will put a stamp and signature, and put one of them in the envelope. Ask to send a valuable letter with an inventory and notification.

8. Take the second copy of the inventory and the check from the postal worker. They will be useful for writing a claim for the recovery of penalties under the DDU from the developer.

7. Download the Russian Post application and you will be able to track the status of your shipment using the postal identifier indicated on the receipt.

Opinions of judges (Court decisions on specific cases)

Lawyer Gordon A.E.

What to do if the developer did not transfer the apartment according to the DDU on time?

Get advice and assistance from a lawyer.

Getting a penalty from a developer is not at all easy

Advertising slogans of law firms shout promises and guarantees to collect penalties, fines and “moral damage” from developers under the DDU. During negotiations, they confidently juggle the articles of Law 214-FZ, the law on the protection of consumer rights, calculate significant amounts of legal penalties for clients, increase the amount by fine and moral damages, and receive an advance payment from trusting clients for their services.

But how much of a penalty can a shareholder actually expect under a DDU?

According to the law, in certain cases the developer is obliged to pay a penalty (penalty) to the shareholder. When and how much is established in law 214-FZ. But it should also be said that the shareholder will not always receive the amount of the penalty calculated in accordance with Law 214-FZ. Especially if you go to court.

In most cases, equity holders motivate their demands for penalties by missing the deadline to transfer the property—an apartment.

According to Part 1 of Article 6 of Law 214-FZ “On Shared Participation in Construction”, the developer is obliged to transfer an apartment (shared construction object) to the participant in shared construction no later than the period specified in the contract.

For violation of the deadline for transferring the apartment to the shareholder, part 2 of Art. 6 of the law establishes liability for the developer: the developer pays 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 the obligation is fulfilled, of the contract price for each day of delay.

If the participant in shared construction is a citizen, the penalty (fines) is paid by the developer in double amount.

Let's look at an example of calculating a penalty, as is usually demonstrated by DDU lawyers, and what they receive according to a court decision.

Example: the developer, under the terms of the DDU agreement, undertook to obtain permission to put a residential building into operation in the 1st quarter of 2015. The property must be transferred to the shareholder under a transfer and acceptance certificate within 2 months from the date of receipt of permission to put it into operation.

According to the conditions, the last day for the transfer of the object is May 31, 2015 (03/31/2015 is the last day of obtaining permission to put a residential building into operation, we add two months for the transfer of the object to the participant in shared construction).

In fact, the apartment was transferred to the shareholder under the transfer deed on September 1, 2015. Accordingly, during the period of delay - from June 1, 2015 to September 1, 2015, the participant in shared construction has the right to receive a penalty established by Part 2 of Art. 6 of Law 214-FZ “On shared participation in construction”. (Such a penalty is called “legal”).

Calculation of the penalty (according to Part 2 of Article 6 of Law 214-FZ):

Penalty = (contract price) x (number of days of delay) x 8.25% x 1/300,

Where 8.25 is the refinancing rate of the Bank of Russia during the overdue period.

For the example described above, let’s take the price of an apartment – ​​2,000,000 rubles.

When transferring an apartment to a shareholder on September 1, 2015, the delay is 92 days (from 05/31/2015 to 09/01/2015)

Thus, the amount of the penalty, if the participant in shared construction is a citizen, will be: 2,000,000 (contract price) x 92 (number of days of delay) x 8.25% (refinancing rate) x 1/150 x 2 = 101,200 rubles.

The amount of the penalty is 101,200 rubles. - the amount calculated in accordance with the law. But the developer will never pay such an amount to the shareholder of his own free will!

What will actually happen

In all cases known to us, when a claim for penalties is presented to the developer, the first thing the developer does is remain silent, do not respond to the demands, or try to evade payment under any pretext, including manipulating the terms of the agreement on the timing of the transfer of the object.

It’s even easier for the developer in court.

The fact is that there is Article 333 of the Civil Code of the Russian Federation, according to which the court has the right to reduce the penalty if the penalty payable is clearly disproportionate to the consequences of violation of the obligation.

In the overwhelming majority of cases, the court reduces, and significantly, the penalty required by the shareholder.

What should I do to prevent the court from reducing the penalty?

From the moment you write a claim, it is correct to motivate your demands: Take into account the specific circumstances of your case and objectively approach the formation of requirements.

1) Prove the period of delay. It is necessary to accurately calculate the date of transfer of the apartment in accordance with the terms of the contract.

2) Prove a significant length of delay.

* Please note that in the appeal ruling below, the delay of up to a year was considered insignificant by the court of the first instance, the appeal (Moscow City Court) agreed with this.

3) Prove the developer’s guilt in the delay. That is, to prove the absence of objective reasons for the delay in transfer of the apartment.

4) Prove the significance of the delay for the shareholder. For example, when paying for a loan with a loan, interest is accrued during the period of delay, so the very fact of delay is important for the shareholder.

5) Prove your material losses as a result of transferring the apartment at a later date. For example, during the construction period the shareholder rents housing and is forced to pay for it during the period of delay.

If the listed circumstances are absent, or the costs for them are not significant, the court will most likely reduce the penalty to the amount of your actual costs.

Why?

According to Article 10 of Law 214-FZ “On Participation in Shared Construction”, the shareholder’s losses due to improper execution of the shared construction agreement by the developer are subject to compensation by the latter in addition to the penalty. That is, in the part not covered by the penalty. This means that, according to law 214-FZ, the penalty in the DDU is of a compensatory nature.

This is the legal position that the courts are guided by:

Penalty under Art. 333 of the Civil Code of the Russian Federation, by its legal nature, is of a compensatory nature and cannot be a means of making profit and enrichment.

In addition to the penalty, the shareholder may demand payment of a fine under the law on the protection of consumer rights and compensation for moral damage. But it is possible to exercise this right if two circumstances exist simultaneously: 1) if the developer is late in transferring the apartment and 2) the developer refused to voluntarily pay the penalty.

Accordingly, in order to collect a fine and moral damages, the shareholder, if the developer is late, needs to contact the developer with a claim in which to demand payment of the penalty.

For failure to fulfill the legal requirements of the consumer, according to the law on the protection of consumer rights, a fine is established in the amount of 50% of the amount awarded by the court in favor of the consumer. And in this case, the consumer has the right to demand compensation for moral damage on the basis of Art. 15 of the law. At the same time, the amount of compensation is not established in the law, and how to determine it, too.

CONCLUSION:

If the developer is late in transferring the apartment (or other object under the DDU) to the shareholder, the shareholder can actually count on receiving a penalty from the court in the amount of losses actually incurred during the period of delay. If the amount of the penalty calculated by law significantly exceeds the amount of losses actually incurred, the shareholder can count on compensation only in the amount of actual losses, even by a court decision.

At the same time, the total amount of recovery may be increased by the court by 50% due to a fine under the law on the protection of consumer rights. The amount of compensation for moral damage collected by Russian courts is insignificant.

The basis for collecting a fine is the developer’s refusal to pay the penalty, and this is also the basis for compensation for moral damage.

Formally, the accrued amounts of penalties in the amount established by law 214-FZ are significantly reduced by the courts at the request of developers on the basis of Art. 333 Civil Code of the Russian Federation.

Thus, in one of the cases considered on appeal by the Moscow City Court (appeal ruling in civil case No. 33-17413) on the dispute over the reduction of the penalty under the DDU, the panel of judges noted:

In accordance with Art. 330 of the Civil Code of the Russian Federation, a penalty is a sum of money determined by law or contract, which the debtor is obliged to pay to the creditor in the event of non-fulfillment or improper fulfillment of an obligation, in particular late fulfillment.

According to Article 333 of the Civil Code of the Russian Federation, the court has the right to reduce the penalty if the penalty payable is clearly disproportionate to the consequences of violation of the obligation. Thus, civil legislation provides for a penalty as a method of ensuring the fulfillment of obligations and a measure of property liability for their non-fulfillment or improper performance, and the right to reduce the amount of the penalty is given to the court in order to eliminate its obvious disproportion to the consequences of violation of obligations.

At the same time, by virtue of paragraph. 2 clause 34 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated No. 17 “On the consideration by courts of civil cases in disputes on the protection of consumer rights” application of Art. 333 of the Civil Code of the Russian Federation in cases of protection of consumer rights is possible in exceptional cases and at the request of the defendant with the obligatory indication of the reasons why the court believes that reducing the amount of the penalty is permissible.

During the consideration of the case in the court of first instance, the defendant claimed to reduce the amount of the penalty and fine, citing objective circumstances due to which the construction period was extended.

Having established that the amount of the penalty payable is clearly disproportionate to the consequences of violation of the obligation, taking into account the specific circumstances of the case, the fact that the deadline for transfer of the object has expired, and the notification of the readiness of the object was sent to the plaintiff already on the date, the act of the presence of shortcomings that would prevent the acceptance of the object, in accordance with Part 5 of Art. 8 Federal Law No. 214 -FZ, was not drawn up, the period of delay, which was less than one year, the court lawfully applied Article 333 of the Civil Code of the Russian Federation to the amount of the penalty and fine.

In accordance with Article 15 of the Law of the Russian Federation “On the Protection of Consumer Rights”, moral damage caused to the consumer as a result of violation by the manufacturer (performer, seller, authorized organization or authorized individual entrepreneur, importer) of consumer rights provided for by the laws and legal acts of the Russian Federation governing relations in area of ​​consumer rights protection, is subject to compensation by the causer of harm if he is at fault. The amount of compensation for moral damage is determined by the court and does not depend on the amount of compensation for property damage.

Compensation for moral damage is carried out regardless of compensation for property damage and losses incurred by the consumer. Paragraph 45 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated No. 17 “On the consideration by courts of civil cases in disputes regarding the protection of consumer rights” explains that when the court decides the issue of compensation for moral damage to the consumer harm, a sufficient condition for satisfying the claim is the established fact of violation of consumer rights. The amount of compensation for moral damage is determined by the court regardless of the amount of compensation for property damage, and therefore, the amount of monetary compensation collected for compensation for moral damage cannot be made dependent on the cost of the goods (work, service) or the amount of the penalty to be collected. The amount of compensation for moral damage awarded to the consumer in each specific case must be determined by the court, taking into account the nature of the moral and physical suffering caused to the consumer, based on the principle of reasonableness and fairness.

Thus, the amount of compensation is determined by the court.

Taking into account the degree of moral suffering of the plaintiff associated with the violation of consumer rights, the requirements of reasonableness and fairness, the court of first instance came to the conclusion that compensation for moral damage in the amount of the amount should be collected in favor of the plaintiff.

In another case (appeal ruling dated May 10, 2017, Case No. 33-17172/17), reducing the amount of the collected penalty, the court noted:

The arguments of the appeals regarding the unreasonableness of the amount of the collected penalty cannot serve as grounds for canceling the court decision, since the penalty by virtue of Art. 333 of the Civil Code of the Russian Federation, by its legal nature, is of a compensatory nature and cannot be a means of making profit and enrichment. The opportunity given to the court to reduce the amount of the penalty if it is excessive compared to the consequences of violation of the obligation is one of the legal methods provided for in the law, which are aimed against abuse of the right to freely determine the amount of the penalty, therefore, in Part 1 of Art. 333 of the Civil Code of the Russian Federation, we are not talking about the right, but about the obligation of the court to establish a balance between the measure of responsibility applied to the violator and the negative consequences that occurred for the creditor as a result of the violation of the obligation. By entrusting the decision on the issue of reducing the amount of the penalty, given its obvious disproportion to the consequences of violation of the obligation, to the court, the legislator proceeded from the constitutional prerogatives of justice, which can be recognized as such only if it meets the requirements of justice. Taking into account the above, the court of first instance, taking into account that the declared amount of the penalty is .... rub. clearly disproportionate to the consequences of breach of obligation, came to reasonable conclusions to reduce the penalty to ... rub. in accordance with Art. 333 of the Civil Code of the Russian Federation, taking into account the defendant’s arguments.

Thus, the shareholder can demand the amount established by law, but the court makes a decision taking into account the specific circumstances of the case, and always reduces the penalty, in many cases significantly.

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