For example, it may contain information regarding the postponement of the completion of a construction project. The right to choose his signature remains with the participant who decided to enter into shared construction. As a rule, any developer includes a column in it that the shareholder does not object to the establishment of a new deadline for the transfer of the building into operation. If he signs this kind of document, he is deprived of the right to receive a penalty from the developer. He is released from paying the penalty without any consequences for himself. Otherwise, the right to make claims remains with the shareholder. Example of filling As a rule, an additional agreement is used to clarify the conditions laid down in the main agreement.

All the nuances of concluding an additional agreement with the developer

Attention

If a construction company, due to certain conditions or objective reasons, wishes to conclude additions to the shared participation agreement, then the rights provided for in the document will gain force only after the state registration of the additional agreement to the share participation agreement has been completed. All bilateral acts must be drawn up in writing or using means of electronic signature verification, unless otherwise provided by current legislation. Registration of an additional agreement to the equity participation agreement Changes, additions and other documents affecting the meaning of the DDU and signed by the participant and the developer are subject to mandatory registration in the state register (in accordance with Article 17 of Federal Law No. 214).

Registration of an additional agreement to the equity participation agreement

An additional agreement to the contract for shared participation in construction is registered on the basis of the following documents:

• identification card of the participant, applicant and power of attorney or guardianship certificate in cases provided for by law;
• receipt of payment of state duty;
• original agreement in 2 copies;
• license, if the application is submitted by a notary;
• constituent agreement and charter for legal entities;
• loan agreement, if equity participation is financed from borrowed funds.

Rules for concluding an additional agreement The initiator of an additional agreement, as a rule, is the developer.

Procedure for registering an additional agreement to the equity participation agreement

Important

Construction of a house takes more than one year. During this period, many different events may occur that require changes to the terms of the agreement concluded between the developer and the project participant. According to the law, an agreement once signed cannot be rewritten. All changes and additions to the document must be drawn up in the form of additional agreements, which can be repeatedly concluded between the parties on the terms of voluntary and free expression of will.

In this case, an additional agreement to the equity participation agreement must be registered. Otherwise, the document is considered not concluded with all the ensuing consequences.

Additional agreements to the ddu

Federal Law No. 214, when the developer cannot, for any reason, deliver apartments to shareholders on time, he is obliged 2 months before the date specified in the contract to send to all shareholders a proposal to conclude an additional agreement on new delivery dates. What does the developer risk? By failing to sign an additional agreement with the shareholders on time, the developer risks incurring large additional costs for paying a penalty for failure to meet delivery deadlines. For each day of delay, a penalty is due in the amount of 1/300 of the Central Bank refinancing rate of the cost of the apartment.
Moreover, citizens, unlike legal entities, have the right to receive a double penalty. The developer will be able to force shareholders to sign an additional agreement to postpone the delivery of apartments in court only in the cases provided for in Art.

The developer offers to sign an addendum to the building agreement. do I need to sign?

An additional agreement to the DDU can be concluded both at the stage of signing the agreement and during any period of its validity. There are many reasons for signing it, the most common are agreements:

• about postponing the deadline for housing delivery;
• on termination of the DDU;
• on changing jurisdiction under the agreement;
• about changes in the qualitative characteristics of the object;
• about a change in the party to the agreement;
• agreement on postponing the payment terms of the DDU.

Typically, the initiator of the agreement (with the exception of the last two options, which are initiated by the participants) is the developer. Each construction company pursues its own goals, but, as a rule, they are all aimed at eliminating responsibility for certain violations and shortcomings of construction and encouraging shareholders to accept new terms of the contract that are less favorable to them.

Agreement on shared participation in construction and additional agreement

In addition, the developer may demand compensation from the shareholder for its losses incurred by the delay in registering the agreement. Is it necessary to sign an additional agreement? Often, an additional agreement to the additional agreement is sent to the participant by regular mail or e-mail, or it is brought by a messenger. The equity holder has three options; he can:

• agree and sign the document;
• send a refusal to the developer;
• ignore this document and leave it unanswered.

You should take the conclusion of an additional agreement very seriously and carefully study all its provisions.

Info

Often, the developer includes clauses in the document that are not agreed upon with the participant and infringe on his rights. If the shareholder finds unfavorable conditions for himself, it is better not to sign such a document at all; the law does not oblige him to do so. Concluding an agreement is a right, but not an obligation, of a citizen.

Along with the main agreement, the following clauses must be present in addition to it:

• date and place of compilation;
• information about signatories;
• registration and basic information about the DDU to which the addendum is being drawn up;
• the subject of the additional agreement, indicating the clauses and sections and the amended wording therein;
• the period of entry into legal force and validity periods;
• details and signatures of the parties.

Before signing the additional agreement, it is recommended to carefully read it again to find out whether the developer has included parts that were not agreed upon with the shareholder. Is registration necessary? When such a situation arises, some people wonder whether it is necessary to register an additional agreement to the equity participation agreement.

Additional agreement to the agreement on changing the developer sample

To register an additional agreement, you must submit the following documents to the government agency:

• shareholder's passport;
• additional agreement (two original copies);
• receipt of payment of the state registration fee (for citizens it is 350 rubles);
• loan agreement (if a mortgage loan was taken out to participate in the project).

The deadline for registering the agreement is five days after submitting all documentation. A document that is signed but not registered is considered unconcluded. Only a completed and registered agreement is valid.

The shareholder should take into account that if he signed but did not register the document, the developer can file an application with the court, and the agreement will be registered by court decision. This right is enshrined in Article 165 of the Civil Code.
Content

• 1 Types of additional agreements to a shared construction agreement
• 2 How to draw up an additional agreement
• 3 Is it necessary to sign an additional agreement?
• 4 In what cases is it better to refrain from signing an agreement?
  • 4.1 Additional agreement on postponing the transfer of housing
  • 4.2 Agreement on termination of the DDU
  • 4.3 Agreement on change of jurisdiction

Types of additional agreements to a shared construction agreement An additional agreement is a legally binding document concluded between the parties for the purpose of making various additions and changes to the provisions of the agreement. It is always signed on a voluntary basis and means that both parties fully agree with all additions made to the text of the main document.

For what reasons are additional agreements proposed, who can initiate them and whether the shareholder is obliged to sign such documents.

Over the several years it takes to build an apartment building, various events may occur that will require changes to the DDU. But according to the law, the contract itself cannot be rewritten - therefore changes and additions are prescribed in the form of additional agreements.

Additional agreements can be concluded at any time during the validity period of the share participation agreement, even at the stage of signing the agreement. In addition, they can be concluded more than once, but all must be registered with Rosreestr, otherwise they will be considered invalid.

A signed and registered additional agreement has legal force and assumes that both parties agree with all changes that this document makes to the text of the additional agreement.

Who can propose an additional agreement to the DDU?

Both the developer and the shareholder can invite the other party to sign an additional agreement, but in most cases it is the construction company that becomes the initiator.

It is worth remembering that developers often offer additional agreements in order to relieve themselves of responsibility and, for example, not to pay a penalty for late delivery of housing, or to force the shareholder to accept conditions that are less favorable to him. Therefore, you need to be very careful and study the text of the document no less carefully than the text of the DDU.

Sometimes, outwardly, we are talking about some completely neutral and insignificant changes, for example, about indicating a new/correct address of the house, but at the same time, in addition to the address, the text of the agreement also states a new deadline for delivery of the object - at a later date. By signing such an agreement, the shareholder deprives himself of the opportunity to demand a penalty for violating the terms of transfer of the apartment indicated in the original text of the DDU.

There are many reasons for signing an additional agreement. For its part, the shareholder may propose to the developer to change a number of terms of the contract. For example, the name of the participant in the transaction (say, when changing the last name). Or payment deadlines for DDU. Or, if the property was purchased without finishing, but then the family decided that they wanted to move into the house right away, you can sign an agreement that stipulates the finishing of the apartment.

The developer, in turn, can offer:

• rescheduling the completion of the house,
• change in the quality characteristics of the building (for example, number of floors, area, etc.),
• jurisdiction under the agreement (indicates the court in which possible disputes between the developer and the shareholder will be resolved),
• etc.

Is the shareholder required to sign an additional agreement?

Not obliged. Signing such a document is a person’s right, not an obligation, no matter what the developer says in this regard. There have been cases when construction companies forced the shareholder to sign, arguing that otherwise they would not be able to continue construction, or that the shareholder would then have problems registering ownership of the home. In fact, this is not the case, and the developer thus tried to play on people’s ignorance of the laws and get rid of claims for penalties.

If the developer proposes an additional agreement, the shareholder has three options:

• sign the document
• send a written refusal,
• ignore the offer and do not sign anything.

Failure to respond means that the DDU will continue under the same conditions.

In addition, you can offer the developer to reformulate certain clauses of the agreement. In any case, as mentioned above, it is necessary to carefully study the document, perhaps consult a lawyer. If the text contains unfavorable conditions that you do not want to agree to, it is better not to put your signature under it.

Collapse Victoria Dymova Support employee Pravoved.ru Similar questions have already been considered, try looking here:

• Changing your surname after concluding a pre-term care agreement
• After the conclusion of the DDU, the price decreased, is it possible to draw up an additional agreement at a different price?

Lawyers' answers (1)

• All legal services in Moscow Drawing up an agreement for shared participation in construction Moscow from 20,000 rubles. Verification of documents and contracts Moscow from 5,000 rubles.

Similar questions

• Changing your surname after concluding a pre-employment contract July 07, 2015, 18:05, question No. 897112 1 answer
• After the conclusion of the DDU, the price decreased, is it possible to draw up an additional agreement at a different price? 03 September 2017, 07:28, question No. 1741302 1 answer
• Change in the total living area of ​​the apartment.

Changing the design area of ​​apartments

Federal Law No. 214 of December 30, 2004, the price of a shared participation agreement (DPA) is considered to be the amount of money payable by a participant in shared construction in favor of the developer. Such a price is determined in the agreement before its conclusion, is, as a general rule, unchanged and is paid in the prescribed manner.

Attention

The provisions of paragraph 2 of Art. 5 Federal Law No. 214 determines the possibility of changing the price of the DDU after its conclusion. Thus, a change in price is carried out on the condition that it is allowed when this is indicated in the contract, the procedure for such a change is determined, the cases allowing it and the conditions under which it will be made.

In this case, the price change is formalized by a separate agreement of the parties. Features of the procedure for changing the contract price:

• The conclusion of an agreement is unacceptable without the expression of the will of at least one party.

Changing the area of ​​an apartment during shared construction

Info

Thus, if the DDU provides for a condition on the possibility of changing the price, then the developer will have the right to demand that the shareholder enter into an agreement on changing the price, under which he will be obliged to make an additional payment. The developer does not have the right to demand additional payment without concluding an agreement with the shareholder, since this is a unilateral change in the contract, which is prohibited by Art.

310

Important

Civil Code of the Russian Federation. At the same time, the developer cannot refuse to fulfill the contract unilaterally, on the basis of the shareholder’s refusal to make an additional payment. In such cases, changes in the contract price are made by applying the developer to the court (clause

2 tbsp. 452 of the Civil Code of the Russian Federation). In this case, the shareholder must take into account that:

• According to paragraphs. 2 clause 1.1 art. 9 Federal Law No. 214, the shareholder has the right to demand termination of the shared construction agreement through the court if the shared construction object transferred to him has significant changes in size.

Changing the project and area of ​​the apartment after the conclusion of the agreement without additional agreement

The law has not established criteria for the “materiality” of such changes, as well as rules that apply to cases where such changes are insignificant.

• Based on clause 9 of Art. 4 Federal Law No. 214, if a shared construction project is acquired by a shareholder not for commercial purposes, then the legislation on the protection of consumer rights applies to the above legal relations.
• So, according to paragraph 3 of Art. 16 Federal Law “On the Protection of Consumer Rights”, the contractor has no right, without the consent of the consumer, to perform additional work for a fee. The consumer has the right to refuse to pay for such work, and if they have already been paid, to demand a refund of the amount paid.

  
  Following this logic, shareholders have the right to refuse to pay for the living space of an apartment not provided for in the contract.

• Moreover, according to paragraph 1 of Art.

About changing the area of ​​the apartment according to the building code

Such a change, in most cases, is not made in favor of shareholders. At the same time, consumer protection legislation that protects their rights is not applied in practice. In view of the above, the only effective way to prevent additional “extortions” and other elements of protection for shareholders is a competent assessment of all risks and a professional approach to formulating the terms of the agreement. Question Additional payment to the developer for the cost of the apartment Can the developer demand an additional payment for the excess area if the difference between the actual and designed area is 0.9 sq. m.
m? Answer It all depends on the terms of the contract concluded between you and the developer. Thus, he will be able to demand additional payment if the contract contains a condition on the possibility of changing the price (clause

2 tbsp. 5 Federal Law No. 214) in case of discrepancy between the areas, and the maximum deviation from the area determined by the contract is less than 0.9 sq.m.

Tips for equity holders: what to do when the area of ​​the apartment differs from the design one

Is it necessary to pay the price of a shared construction agreement before assigning claims under it? Find out from the material “Assignment of the right of claim under an agreement of shared participation in construction” in the “Encyclopedia of Solutions. Agreements and other transactions" Internet version of the GARANT system.

Get full access for 3 days for free! Get access But the developer did not agree with this decision of the body and went to court with a demand to declare it illegal and cancel it. The court of first instance refused to satisfy his demands, but at the appeal stage the judges supported the developer’s position. They came to the conclusion that there was no proof of the presence of an administrative offense in the company’s actions. He indicated that the failure to conclude an additional agreement in connection with a change in the actual total area of ​​the apartment (by 0.2 sq.
m more) does not indicate the presence of consumer fraud.

Agreement on shared participation in construction and additional agreement

After measuring the PIB, it turned out that the area of ​​the apartment was 53 square meters. m based on which, XXX LLC demanded additional payment from M. for the excess space, which was provided for in the contract. The amount of the surcharge was calculated based on the cost of 1 sq. m.
m, which amounted to 70 thousand rubles. (3.5 million/50 sq.m). The difference in area was 3 square meters. m, which is why the additional payment amounted to 210 thousand rubles. (70 thousand rubles × 3 sq.m.). Judicial practice on changing the area of ​​an apartment under a shared participation agreement Judicial practice on disputes between participants in shared construction and developers arising as a result of the transfer of a construction project with excess or missing square footage is quite contradictory.
At the same time, differences in the law of application can be traced not only between courts of different jurisdictions, but also between judicial bodies of different instances, which is largely due to the lack of regulation of DDU in the Civil Code of the Russian Federation.
In the case you described, we are talking specifically about a price change (its increase). Order No. 82 of the Ministry of Justice of Russia dated 06/09/2005 approved the Instruction on the peculiarities of state registration of agreements for participation in shared construction, rights, restrictions (encumbrances) of rights to real estate objects in connection with shared construction of real estate objects. In accordance with clause 13, clause 15 of the Instruction, amendments to the agreement for participation in shared construction are also subject to state registration. At the same time, on the basis of an agreement between the parties to the contract, a record is made in the Unified State Register of Rights about changes in the area of ​​the object in connection with its clarification in the prescribed manner (clause 67 of the Rules for maintaining the Unified State Register of Rights to Real Estate and Transactions with It, approved by Decree of the Government of the Russian Federation dated 02/18/1998 No. 219). And a change in area entails a change in price.

Additional agreement on changing the area of ​​the apartment according to the building code

Despite this, in many ways the courts are also unanimous. Thus, in almost all cases of dispute resolution, the courts are guided by the fact that shareholders do not have the opportunity to influence the progress of construction, while accepting the square footage as the main consumer characteristic of the construction project. Based on this, many court decisions are aimed at restoring the violated rights of shareholders. Main conclusions from judicial practice:

• The presence in the DDU of a condition according to which the deviation of the actual area of ​​the apartment from the design one does not entail a change in the price paid by the shareholder in the event of the transfer of an object of smaller area to him, is regarded by the courts as an infringement of the rights of shareholders-consumers, and therefore requires the application of clause 1 of Art. 16 Federal Law “On the Protection of Consumer Rights”.

It can be glazed (clause 3.1.) Thus, the calculation in your case looks like this: The difference in the cadastral registration data of the sq. m. 246 area 43.1 sq.m. and the design area without loggia (42.72 sq.m.) is 0.38 sq.m. A comparable footage (0.35 sq.m.) is invoiced by the developer for additional payment. Check: 43.1 sq.m. (without loggia according to cadastral registration data) + 3.55 sq.m. (loggia)/2(loggia coefficient) = 44.875 A similar area (44.85) is indicated by the developer in the surcharge invoice as the BTI area. Conclusion: Based on the data presented, the developer’s statement about changing the area appears to be justified. Differences in measurements are within permissible rounding errors (0.1 m2).
Based on this, the shareholder must take into account that:

• The possibility of returning part of the funds paid under the DDU, in the case of transfer of an apartment with a smaller square footage under the transfer and acceptance certificate, depends on the presence in such an agreement of an appropriate condition that implies the possibility of changing the price.
• If there is a condition that allows you to change the price of the contract, the shareholder must enter into an appropriate agreement with the developer to change the price. If the developer refuses to enter into an agreement, the funds are recovered in court, as amounts received as unjust enrichment (Article 1102 of the Civil Code of the Russian Federation).
• If there is a condition that exempts the developer from liability for shortcomings of the construction project, expressed, among other things, in the discrepancy between the actual area of ​​the object and the design documentation, they are void (clause 4 of Art.

Last update: 06/06/2019

Question:

The developer is delaying the delivery of the house according to the DDU, and invites me to sign an additional agreement to postpone the delivery date. What should I do? Is it worth signing this agreement? And what happens if I don't sign it?

Answer:

It is a rare bird that will fly to the middle of Lake Baikal, and it is a rare bird in Russia that can boast of delivering completed apartment housing on time. And each shareholder begins to have a headache in advance about what to do if there is a delay in construction and the timing of the transfer of the apartment according to the conditions Share participation agreements (DPA).

Developer in turn, trying to avoid payment, he exercises his right under the law ( FZ-214) reschedule this deadline with the consent of the other party to the agreement - that is, the shareholder. To do this, he sends the shareholder an official notification about postponing the delivery date of the house, and offers to sign it, essentially changing the original terms of the contract.

What does the law say here, and what is the best thing for a shareholder to do? The procedure here is usually as follows.

How is the completion date of a house determined?

The law “on the protection of the rights of shareholders”, popular among the people, provides for mandatory indication of the transfer period to the shareholder of the shared construction project in the list of conditions. At the same time, “transfer of an object” is legally understood transfer of finished apartment, and not putting the house into operation. Although in everyday life you can often hear about the delay in the “deadlines for the completion of the house.”

The law does not regulate in what form the transfer period should be indicated. The main thing is that it is the same for all shareholders of one house or its block section. Therefore, different developers indicate this period in different forms, for example:

• The developer is obliged transfer the object to the shareholder shared construction after receiving permission to commission a residential building no later than December 30, 2017; – or
• The developer is obliged to transfer the shared construction object to the shareholder approximately in the first quarter of 2017; – or
• The developer undertakes to put the apartment building into operation by November 15, 2017. The developer undertakes within 10 days after delivery multi-apartment residential building into operation pass object shared construction to a participant in shared construction.

Despite the different wording, the specific date ( deadline) the transfer of an apartment to a shareholder can always be deduced from the conditions of the DDU. In the case of indicating “quarters”, this date is the last day of the specified quarter. And such vague formulations as “approximately”, “approximately”, etc. in controversial cases the court does not consider them.

If Developer violates the deadline for delivery of the house ( incl. for objective reasons beyond his control), he is obliged to notify all participants in shared construction about this no later than two months in advance before the period specified in the agreement, and invite them to change the DDU agreement by concluding an additional agreement to it (Opens in a new tab.">Clause 3. Article 6, Federal Law-214).

Additional agreement to the DDU on postponing the completion date of the house must contain an indication of the reasons for the delay in construction and propose new deadlines for transferring the apartment to the shareholder. It is important to understand that this is precisely a PROPOSAL to voluntarily renew the contract and postpone the deadline, and not a compulsory condition. The shareholder can accept it or not at his own discretion.

What happens if the shareholder signs an agreement to postpone the delivery date of the house?

If Developer will be convincing enough and the shareholder will agree ( “eh, okay, I convinced you”) sign an additional agreement to the DDU on changing the deadline for the delivery of the house and transfer of the apartment, then he loses the following:

1. He will no longer be able to claim payment of a penalty due to delay in delivery of the house ( about penalties – see below). More precisely, he will be able to apply, but only if the Developer violates the new deadline for transferring the apartment under the additional agreement. And the penalty will be calculated from this new date.
2. He is deprived of the right to unilateral termination of the DDU (about termination – see below) and return your money on the basis of violation of the deadline for delivery of the house for more than 2 months (Opens in a new tab."> clause 1, clause 1, article 9, 214-FZ). That is, to terminate the contract on this basis you will have to wait until the Developer violates the new deadline for 2 months.

If an additional agreement to the DDU is signed, then the original delivery date of the house will no longer be taken into account. In case of legal disputes with Developer, the shareholder will not be able to rely on the original terms of the DDU.

What happens if the shareholder refuses to sign this agreement?

According to the Civil Code of the Russian Federation, any change in the terms of the contract is possible only by mutual agreement of the parties ( with the exception of individual cases not related to this topic). It follows from this that the shareholder, being an equal party to the agreement, may refuse to change its original terms. There will be no negative legal consequences for the shareholder from this ( although the Developer will obviously be dissatisfied).

Of course, in fact, the date of delivery of the house will still be postponed ( there's nothing you can do about it), but the shareholder will be able to compensate himself for all losses associated with this by presenting claim for payment of a penalty.

For violation of the deadline for handing over the house and transferring the apartment to the shareholder - described in a separate note at the link.