A developer who delays the transfer of a shared construction project pays the shareholder-consumer a legal penalty for each day of delay until the day of actual fulfillment of the obligation, that is, for the future inclusive, while such a penalty cannot be reduced in advance according to the rules ().

This legal position was formulated by the Supreme Court of the Russian Federation, considering a dispute between a slow developer and a participant in shared construction. The agreement for participation in shared construction (hereinafter referred to as the DDU) was paid by the shareholder in full (including the mortgage) and on time, but the delivery of the house has been “late” for a couple of years. Moreover, during the first six months of delay, the equity holder has already won the penalty provided for by Federal Law No. 214-FZ of December 30, 2004 "". However, the delay in fulfilling the DDU is increasing, and so I had to go to court again.

This time, the shareholder asked the court - in addition to the penalty for the new six months that had already passed - to also award him a penalty for each future day of delay until the transfer of the apartment at the rate of 300 rubles. per day of waiting.

The district court considered the request fair and made a decision to satisfy the claim.

However, this caused outrage among the developer. In the appeal, he wrote that, firstly, when the time comes to pay the penalty for future delays, he, the developer, intends to ask the court to reduce the penalty based on exceptional circumstances and the obvious disproportion of the size of the penalty to the consequences of violating the DDU (). And if the court awards this penalty right now, then it will not be possible to reduce it later. And secondly, if the developer begins to pay the legal penalty in full, this will negatively affect his economic and financial situation, construction will slow down even more, and maybe even stop completely. Then not only the plaintiff will suffer, but also all other, more loyal clients.

The appellate court considered these arguments worthy of attention and denied the shareholder a “future” penalty, because establishing the amount of such a penalty would violate the defendant’s rights to reduce it upon a corresponding application. The court noted to the shareholder that his rights had not been violated, because at any moment he could again, along the beaten path, go to court with a new independent claim for a new portion of the penalty.

The shareholder applied for protection to the RF Armed Forces. The appeal ruling was overturned for the following reasons:

• within the meaning of , the plaintiff has the right to demand the award of a penalty on the day of the actual fulfillment of the obligation (in particular, the actual payment of funds to the creditor, the transfer of goods, the completion of work), as indicated in. When awarding such a penalty, the court in the operative part of the decision indicates the amount of the penalty calculated on the date of the decision and subject to collection, as well as the fact that such collection is carried out until the actual fulfillment of the obligation, and the day of actual performance is also included in the period for calculating the penalty. And the specific calculation of the amounts accrued after the decision is made is carried out in the process of execution of the judicial act by the bailiff;
• the developer, as a commercial organization, in case of violation of the deadline for transferring the apartment, pays the citizen - the shareholder a legal penalty for each day of delay until the day of actual fulfillment of the obligation, that is, for the future inclusive. Such a penalty can be reduced by the court only upon a reasonable application from the defendant and in exceptional cases, taking into account the specific circumstances of the violation, and therefore the amount of the awarded penalty for the future cannot be reduced according to the rules;
• The developer’s statement that payment of a penalty in the amount established by law would delay the commissioning of the facility should have been assessed by the court. Moreover, it should be assessed taking into account that obligations must be fulfilled properly;
• It is incorrect to say that the plaintiffs are not deprived of the right to file a claim for a penalty for a new period of violation of the obligation to transfer the apartment. After all, participants in civil legal relations must act in good faith, and no one has the right to take advantage of their illegal or dishonest behavior. Consequently, the court must protect the violated rights of shareholders, help prevent future violations of their rights, and encourage the developer - a guilty participant in civil transactions - to properly fulfill his obligations.

In this regard, the case was sent for a new appeal review, during which the court of the constituent entity of the Russian Federation must take into account the arguments of the judicial panel for civil cases of the Armed Forces of the Russian Federation.

From February 10, 2020, the Central Bank of the Russian Federation reduced the rate used in the calculation of penalties to 6 percent per annum. Now the calculation of penalties for DDU, taking into account the periods of validity of Bank of Russia rates, becomes relevant again.

We will recover penalties, fines, moral damages, damages and compensation for legal services. Free consultations by phone. 8-903-120-51-06 Every day from 9 to 23 hours.

Calculation of DDU according to Federal Law 214

In accordance with the above, the calculation of the legal penalty for the period of delay in obligations will look as follows:

Calculation of the state duty if the cost of the claim is more than 1,000,000 rubles:

Delay in calendar days:

Penalty:

Fine (50% of the amount of the penalty under the Civil Code):

Penalty with fine:

State duty:

Free legal advice on calculating penalties, fines, moral damages and losses. 8-903-120-51-06 Every day from 9 to 23 hours.

Calculation of DDU according to Federal Law-214

Formula for calculating penalties for DDU

Price of DDU x number of days of delay x (rate of the Central Bank of the Russian Federation/100) x (1/150). There are two variables in the formula: the rate of the Bank of Russia and the number of days of delay on the DDU. Thus, when calculating the penalty, the main attention should be paid to the correct determination of the start date of the period of delay, its end date and the rates of the Central Bank.

DDU refinancing rate

The legislator in Part 2 of Art. 6 FZ-214 links the calculation of the DDU to the refinancing rate. From 01/01/2016 The Central Bank of the Russian Federation by its Directive No. 3894-U dated December 11, 2015. equated the refinancing rate to the key rate. From this date, the independent value of the refinancing rate for the purpose of calculating penalties according to the Federal Law-214 formula is no longer applied. It follows that if the apartment was transferred under the deed before December 31, 2015 inclusive, the penalty is calculated at the refinancing rate, if after, then the calculation is made at the key rate.

Below in the text we post Directive No. 3894-U dated December 11, 2015, which must be referred to in the claim. The refinancing rate for calculation according to the 214-FZ formula is 8.25%, the key rates are floating and are established by relevant decisions of the Board of Directors of the Bank of Russia.

Key rates of the Central Bank of the Russian Federation and periods of their validity

Due to the fact that the refinancing rate has lost its relevance, and the key rates of the Bank of Russia are constantly changing, for the calculation it is important to know not only their size, but also the periods of validity. All rates used to calculate penalties for DDU are laid out in the following table.

Changes in Central Bank rates by period

• from 01/01/2016 until June 13, 2016 - eleven %
• from 06/14/2016 until September 18, 2016 - 10.5%
• from 09/19/2016 until March 26, 2017 - 10 %
• from 03/27/2017 until 05/01/2017 - 9.75%
• from 05/02/2017 until June 18, 2017 - 9.25%
• from 06/19/2017 until September 17, 2017 - 9 %
• from 09/18/2017 until October 29, 2017 - 8.5%
• from 10/30/2017 until 12/17/2017 - 8.25%
• from 12/18/2017 to 02/11/2018 - 7.75%
• from 02/12/2018 until March 25, 2018 - 7.5%
• from 03/26/2018 until September 16, 2018 - 7.25%
• from 09/17/2018 until December 16, 2018 - 7.5%
• from 12/17/2018 until June 16, 2019 - 7.75%
• from 06/17/2019 until 07/28/2019 - 7.5%
• from 07/29/2019 until 09/08/2019 - 7.25%
• from 09.09.2019 until October 27, 2019 - 7%
• from October 28, 2019 until 12/15/2019 - 6.5%
• from December 16, 2019 until 02/09/2020 - 6.25%
• from 10.02.2020 to date - 6%

Penalty period under the law on shared construction

Determining the start date of the delay for the purposes of correct calculation under Federal Law 214

The delay under the DDU begins from the next day after the date when the apartment should have been transferred to the shareholder. Sometimes developers do not explicitly indicate this date in the contract, which leads plaintiffs to some difficulties in determining the beginning of the period of delay.

The legislator in Federal Law-214 did not oblige the developer to indicate in the DDU the calendar date for the transfer of the object, therefore in the contract this period can be tied to any event. Most often this is the date of commissioning. At the same time, developers usually indicate it as indicative, which further confuses participants in shared construction. The shared participation agreement may say: “the apartment is subject to transfer to the participant in shared construction no later than 90 calendar days after the apartment building is put into operation. In this case, the approximate date of commissioning is no later than the 4th quarter of 2018.”

Let's try to figure it out. The fourth quarter ends on December 31, 2018. 90 calendar days begin to be calculated from 01/01/2019. until March 31, 2019 The deadline for handing over the apartment falls on Sunday. According to Art. 193 of the Civil Code of the Russian Federation, if the last day of the period falls on a non-working day, the day of expiration of the period is considered to be the next working day following it. From which it follows that the apartment must be transferred according to the deed on 04/01/2019, and the penalty will be calculated from 04/02/2019. That's right. However, in practice, courts rarely bother with finding out what day the date of transfer of the apartment falls on, on a working day or on a weekend. Therefore, the penalty can be indicated without taking into account these subtleties. If the DDU clearly indicates two dates: the date of commissioning and the date of transfer of the apartment under the deed, then for the purposes of collecting a penalty, only the last date is important. The commissioning date specified in the contract has no practical significance and is simply a marketing ploy at the stage of selling the property.

By clicking you can see the article. 191 (beginning of a period determined by a period of time) and Art. 193 of the Civil Code of the Russian Federation (expiration of the deadline for fulfilling an obligation falling on a non-working day). If the deadline for transferring the apartment under the terms of the contract falls on a non-working day, therefore, the developer must transfer the apartment on the next working day. In particular, in court hearings, lawyers for the developer Rozhdestvenno LLC constantly draw attention to this, because According to the DDU, the transfer of apartments in the Mir Mitino residential complex often falls on a non-working day.

At the same time, in most cases, our lawyers manage to convince the court that the penalty must be collected from the day following the date on which the apartment must be transferred under the terms of the DDU, regardless of whether it is a working day or a non-working day.

Determining the start date of the period of delay when making payments in the most confusing DDUs

There are a number of particularly cunning developers who draw up the DDU in such a way that it is difficult for shareholders to determine it correctly on their own. As an example, let’s take the developer JSC MFS-1. In the share participation agreement, the period for transferring the apartment under the transfer deed is defined as follows. We will indicate arbitrary dates and shorten unnecessary text to make it easier to calculate deadlines.
clause 5.1.8. The deadline for commissioning of the house is no later than December 31, 2018.
clause 5.1.9. No later than two months from the date of commissioning, the developer undertakes to transfer the apartment according to the deed.
clause 5.1.10 Not later than two months before the expiration of the deadline for transferring the shared construction project, notify the participant about the change in the deadline for transferring the apartment.
clause 5.1.12 Upon the occurrence of the event provided for in clause 5.1.10, the parties agreed on a six-month period calculated from the date specified in clause 5.1.8 of the agreement as an additional period necessary for the developer to transfer the apartment.

With this rather cunning manipulation, the developer swindled the shareholder out of a penalty of several months. The plaintiffs' appeals were repeatedly considered by the appellate courts, but all judicial panels were on the side of the defendant. Links to Art. 190 of the Civil Code of the Russian Federation does not work here. This is, in our opinion, wrong. In our opinion, the six-month period was not agreed upon by the parties. The period under the Civil Code of the Russian Federation is determined by an indication of an event that must inevitably occur. The notification is obviously not such an event. He may or may not be directed. At the same time, the high-quality work of the developer’s contractors is canceled out by the poor work of its other departments. The developer often sends notifications with errors in the addresses of shareholders. Such mistakes backfire on him in the courts.

From this we can draw two conclusions. Read the DDU carefully when buying an apartment so that the developer cannot steal several months of penalties from you. Hire experienced lawyers who can notice the slightest mistakes of the developer in the execution of the DDU in order to develop a case in court in favor of the plaintiff.

Correct determination of the beginning of the period of delay is the key to a correctly drawn up claim and statement of claim. An error in determining the beginning of the delay affects the amount of money collected from the developer in court.

Should I file a claim before signing the apartment acceptance certificate or after?

To file a claim, you do not need to wait for the apartment acceptance certificate to be signed. If the apartment has not yet been transferred under the deed, the penalty changes several times during the progress of the case. A lawyer approaches this in the following way. The first time the penalty is calculated in the claim, on the date it is sent to the developer. The second time is indicated in the claim and is calculated on the date of its submission to the expedition of the court. The third time, the lawyer clarifies the penalty on the date of consideration of the claim on the merits or on the date of signing the act, depending on which event occurs earlier. Thus, the period of delay constantly increases as the case progresses in the court of first instance.

Let's illustrate with the following example. Let's say today is September 30, 2019. and on this day the developer, according to the terms of the DDU, must transfer the apartment. The settlement department promises to transfer the apartment by December 31, 2019. Without waiting for the deed to be signed, a month later we contact a lawyer for disputes with developers. The trial lawyer immediately sends, calculating the penalty on the date of its sending. Ten days later he files a claim in court, calculating the penalty on the date of filing the claim with the court expedition. In 1-1.5 months the court will schedule a preliminary hearing, and in another 1-1.5 months it will consider the claim on the merits. When the court considers the claim on its merits, the lawyer clarifies the claims as of the date of the court hearing. Let's sum it up. It turns out that the court will consider the claim, at best, 3 months after filing the claim. In our example in January 2020. If during this period of time the plaintiff signs an apartment acceptance certificate, then the lawyer will clarify the penalty as of the date of the act. If the act is not signed, the court will impose a penalty on the date of the court hearing. It turns out that if the apartment has not yet been transferred according to the deed, the penalty increases several times during the progress of the case. What does such a scheme give to a participant in shared construction? Opportunity to receive money earlier. If you first sign the deed and then file a lawsuit, the receipt of money is delayed in time for the duration of the court case. During this time, the developer can withdraw money from his accounts. Therefore, it is better not to take risks. Let the case in court proceed in parallel with the completion of the house.

Since delays in filing a claim adversely affect the participants in shared construction, we will devote a little more time to this issue. Let us dwell on three points in favor of filing a statement of claim before signing the transfer deed.

First point.

Second point.

If a claim is filed before the deed is signed, in the eyes of the judge, the weaker party is the shareholder. It turns out that the developer did not transfer the apartment and does not want to pay the penalty yet! If the claim is filed after the deed is signed, then the weaker party is already the developer. It turns out that the shareholder received the apartment, and now he also wants to get money. What might this affect? On the degree of reduction of penalties according to 333 Civil Code of the Russian Federation. If you file a claim before signing the apartment acceptance certificate, the degree of reduction in penalties will be statistically lower than if you file a claim after it is signed. The third and most important point.

Sooner or later, any developer stops paying under writs of execution. The developer is not a bank; he does not have to keep money in his accounts to complete the construction of the house. Gradually, the developer transfers money from his own accounts to the contractor’s accounts. The contractor continues to build, and the money in the developer’s accounts is melting every day. They are washed out by plaintiffs who filed their lawsuits before you. This process, for a number of reasons, is slow, but sooner or later the money in the developer’s accounts runs out. It is logical that you can get money under a writ of execution if you don’t think for a long time, but file a claim immediately after the delay under the DDU begins. In this sport, who is ahead of whom is either the developer's shareholder, or the developer's shareholder. The sooner the writ of execution is submitted to the bank, the better, from the point of view of execution of the court decision.

Delay in filing a claim until the acceptance certificate is signed is a handicap for the developer, in the form of additional time given to him to withdraw funds from his accounts. This leads to an increased risk of non-payment under the writ of execution.

Excerpts from the law on shared construction 214-FZ on the calculation of penalties with notes from a trial lawyer on DDU

By clicking you can see:

Part 1 art. 12 FZ-214.

Full text of Directive of the Central Bank of the Russian Federation No. 3894-U.

Instruction from the Bank of Russia, which has equated the refinancing rate to the key rate for the purposes of calculating penalties.

It can be referred to in a pre-trial claim when calculating penalties under the DDU.

It is best to be guided by the established judicial practice of the court in which the claim will be filed. Some judges are of the opinion that according to the periods of validity of key rates, others that on the date of fulfillment of the obligation. A lawyer who constantly litigates for penalties knows what practice has developed in a particular court. Therefore, before sending a claim to the developer, it is worth asking him about this. We provide free consultations on such issues by phone. 8-903-120-51-06 daily from 9 to 23 h. If the court does not have a clear practice on this issue, then you can be guided by the following approach.

When choosing between two payment methods, give preference to the one where the amount of the penalty is greater. It makes no sense to do two calculations on your own. It’s more convenient to use ours. The program will make two calculations, compare them with each other and display the one in which the amount of the penalty will be the largest. In this case, the user can switch to manual mode and calculate the penalty in any of two ways. If the judge has questions about why the calculation was made in this particular way, the lawyer will justify either of these two positions.

The key rate is always in motion, periods of growth are followed by decline and vice versa. To quickly determine the calculation method in which the penalty will be maximum, it is advisable to use.

If you leave the option “at the discretion of the calculator”, the program will calculate according to two options and display the one where the amount of the penalty will be greater.

Below is the decision of the Golovinsky District Court on our claim. The decision came into force. Judge Zhilkina T.G. agreed with our lawyer’s arguments and included in the court decision our calculation of the penalty for the periods of validity of the Central Bank of the Russian Federation rates. The full decision can be viewed on the website of the Golovinsky Court under court case number 2-4178/18. In this case, we recovered 100% of the penalty and fine from the developer without any reduction. The client was very pleased with our work.

An example of calculating a penalty under the law on shared construction

Let's say:

• apartment price: 8,940,000 rub.
• transfer deadline: November 30, 2017
• the act was signed: 04/15/2019

We copy the resulting calculation into the claim, and then into the statement of claim.

• from 04/01/2017 until 05/01/2017  
• RUB 8,940,000 00 kop. x 31 x 9.75% x 1/150 = 180,141 rub. 00 kop.
• from 05/02/2017 until June 18, 2017  
• RUB 8,940,000 00 kop. x 48 x 9.25% x 1/150 = RUB 264,624 00 kop.
• from 06/19/2017 until September 17, 2017  
• RUB 8,940,000 00 kop. x 91 x 9% x 1/150 = 488,124 rub. 00 kop.
• from 09/18/2017 until October 29, 2017  
• RUB 8,940,000 00 kop. x 42 x 8.5% x 1/150 = RUB 212,772 00 kop.
• from 10/30/2017 until 12/17/2017  
• RUB 8,940,000 00 kop. x 49 x 8.25% x 1/150 = RUB 240,933 00 kop.

from 12/18/2017 to 02/11/2018  

• RUB 8,940,000 00 kop. x 56 x 7.75% x 1/150 = RUB 258,664 00 kop.
• from 02/12/2018 until March 25, 2018  
• RUB 8,940,000 00 kop. x 42 x 7.5% x 1/150 = 187,740 rub. 00 kop.
• from 03/26/2018 until September 16, 2018  

RUB 8,940,000 00 kop. x 175 x 7.25% x 1/150 = 756,175 rub. 00 kop.

from 09/17/2018 until December 16, 2018  

RUB 8,940,000 00 kop. x 91 x 7.5% x 1/150 = 406,770 rub. 00 kop.

from 12/17/2018 until April 15, 2019   RUB 8,940,000 00 kop. x 120 x 7.75% x 1/150 = 554,280 rub. 00 kop.
Total values:
overdue period: 745 days.
penalty: RUB 3,550,223. 00 kop. fine: RUB 1,775,111 50 kopecks

state fee when filing a claim: (3,550,223 rubles 00 kopecks - 1,000,000 rubles 00 kopecks) x 0.5% = 12,751 rubles. 11 kopecks
Our judicial practice without reduction under 333 Civil Code- this is the interest rate at which the Central Bank of the Russian Federation gives loans to commercial banks for a week, and at which it accepts money for deposit. See the section in this article for the bet value. Since 01/01/2016, this indicator has been used for calculations according to Federal Law-214.
Refinancing rate– the amount of interest payable to the Central Bank on loans issued. Currently, it has lost its relevance for the purposes discussed in this article. Can only be used in cases where the apartment was transferred under a deed before 12/31/2015 inclusive.

Useful links on the topic of questions about calculations under the law on equity participation 214-FZ

How to use it correctly

View the results of our work in courts of general jurisdiction on the collection of penalties from developers, in particular court decisions and writs of execution, can be found in the review.

Collection through the courts of general jurisdiction is not the only way to obtain money from the developer. Chapter 24 of the Civil Code allows the participant in shared construction to make some maneuver with his right to a penalty. The essence of this maneuver is to change the jurisdiction of the dispute from a court of general jurisdiction to an arbitration court. If the equity agreement allows this, in some cases it may provide a more predictable outcome. With our court decisions to collect penalties through arbitration court can be found in the article.

This article discusses this issue in detail.

About our prices and the procedure for providing legal services in the article:

Have you lost interest in a shared construction project and want to get your invested money back? It's real. In this case, you can not only return the amount of your investment, but also the interest for using your money. In addition to interest, the shareholder can also count on a fine under the PPA. This topic is discussed in more detail in our legal review.

This is quite profitable, because... the amount of penalties when calculated may, in certain cases, exceed the price of the contract itself.

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Old ones first

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2 months ago

I called your phone number to get help in calculating the overdue amount, they suggested that I read all their articles carefully and think)) They calculated it))

Administrator

good day, Elena! Perhaps the lawyer was in court at that moment. In such situations, we ask you to call back or use the calculator posted on the website. It happens when a participant in shared construction asks a question that is discussed in detail in one of the sections of our website. Then the trial lawyer explains in which section of the site the situation of the shareholder is analyzed and then asks to call back if anything is unclear.

4 months ago

Good evening! Do I need to wait until the transfer deed is signed to submit a claim for a penalty to the developer? In this case, how to correctly calculate the DDU?

2 months ago

I called your phone number to get help in calculating the overdue amount, they suggested that I read all their articles carefully and think)) They calculated it))

4 months ago

The claim must be submitted without waiting for the transfer deed to be signed. In the claim, calculate the penalty as of the date of its submission. On the date of consideration of the claim, clarify the claims in the direction of increasing them.

Unilateral act.NET

On ways to invalidate a unilateral act with examples from our judicial practice.

Applicable to equity participation, penalty is the amount of money that developer obliged to pay to the shareholder in case of non-fulfillment or improper fulfillment of an obligation, as well as in late execution.

The right to claim a penalty under a share participation agreement arises if delivery deadlines are not met apartments to participating citizens, and not in case of violation of the deadlines for the construction of an apartment building or its commissioning.

Beginning of the period of delay is calculated from the day following the date of transfer of the residential premises specified in the contract, and end- on the day of actual transfer (according to the apartment acceptance certificate).

For example, if the period for transferring an apartment under the contract is defined as “Q3 2016” (lasts from 07/01/2016 to 09/30/2016), the delay will begin from 10/01/2016.

Formula for calculating penalties

The penalty charged to the developer for violating the terms of transfer under the DDU is calculated as follows: formula:

Amount of penalty = 1⁄300 refinancing rate of the Central Bank of the Russian Federation × contract price × number of days of delay

The formula for calculating the penalty if, under an equity participation agreement, the shareholder is individual(citizen):

Penalty amount = 1⁄150 refinancing rate × contract price × number of days of delay,

where 1/150 is the double refinancing rate (1/300 × 2).

How to calculate a penalty for DDU (example)

Let's look at an example of calculating a penalty. According to the contract, the price of the apartment is RUB 3,450,000. The refinancing rate is 10,00%. In the clause of the agreement on the transfer of a shared construction object to a participant in shared construction, for example, a specific date is indicated “no later than 03/31/2016”. The delay begins from 04/01/2016. The apartment was transferred to the shareholder on 07/01/2016.

So, the delay is 3 months, that is, the number of days of delay is 90 .

Calculation of penalties for an individual. The refinancing rate for citizens doubles: 10.00/300 × 2=0.06%.

Thus, the penalty rate for each day of delay is 0,06%.

Penalty = 0.06 × 3,450,000 × 90 = RUB 186,300.

For a legal entity or individual entrepreneur the penalty will be: 10.00/300 × 3,450,000 × 90= RUB 103,500

Voluntary payment of penalties by the developer

The developer, having considered the claim from a participant in shared construction, may decide to payment of penalties on a voluntary basis. In this case, the shareholder may be offered reduction of the penalty amount, as well as agree on the procedure for its repayment. To legally secure this proposal, it is recommended to formalize it written agreement sides

Since the legislation on shared construction of the deadline for consideration by the developer of the claim is not established, then applying the provisions of the Federal Law reasonable time for giving written answer participant in shared construction is 10 days.

In addition to the offer to concede the amount of the penalty several times, the developer may offer to carry out Finishing work for a certain amount. But even in this case, the shareholder will not receive the amount of the penalty that would have been possible to collect when filing a claim in court, since the amount spent is usually less than the required amount.

If the developer does not respond to the letter of claim or refuses to peacefully resolve the dispute, a claim should be filed in court.

Collection of penalties from the developer

If the developer didn't answer for a claim or refused from a peaceful settlement of the dispute, a participant in shared construction has the right go to court for forced collection of penalties.

Besides, the shareholder has the right to claim on the:

• compensation losses arising as a result of violation of the terms of delivery of the house (in connection with rental housing, payment of interest on the loan);
• compensation moral damage;
• fine in the amount of 50% of the amount established by the court by judgment (clause 6 of article 13 of the Federal Law “On the protection of consumer rights”);
• compensation legal expenses.

To submit claim The court will also need:

• a copy of the plaintiff’s passport (page 3 - with photo, page with registration);
• a copy of the equity participation agreement (3 copies);
• a copy of the document confirming payment of the amount under the agreement (3 copies);
• a claim against the developer with a response or postal notification of delivery (if any);
• apartment acceptance certificate (if available);
• other documents necessary for the court to consider the case.

Statement of claim for recovery of penalties under an equity participation agreement

After collecting the necessary documents by the participant in shared construction a statement of claim is drawn up to collect a penalty from the developer.

The plaintiff is exempt from paying the state fee when filing a statement of claim in court (clause 3 of article 17 of the Federal Law “On the protection of consumer rights”).

Consideration of a claim in court

During the consideration of the case on the collection of penalties for late delivery of apartments, the judge finds out circumstances, in which there was a violation of deadlines. To confirm them, we are considering proof provided by the plaintiff, and in case of their rejection, the court gives arguments or norms of legislation on which it relies.

On disproportionality of the required penalty may influence:

• contract price;
• duration of the period of violation of deadlines;
• fulfillment of the developer’s obligations to take measures for the delivery of an apartment building;
• consequences and losses of a participant in shared construction arising from delays in the transfer of housing, etc.

As a result of these circumstances, the amount of the penalty may be reduced.

The reduction in the amount of the penalty is not affected by the fact that its payment in full may entail adverse consequences for third parties not participating in the legal relationship (other shareholders).

The developer is not exempt from paying a penalty in case of delay due to the fault of an unscrupulous subcontractor.

In case of violation of the deadlines for delivery of an apartment purchased under a shared construction agreement, the construction company has an obligation to pay, the amount of which depends on the period of delay.

Causes Delays can be of various types, for example:

• financial (lack of funds);
• technical (related to the connection of utilities, etc.);
• related to the contractor (delay in the delivery of material, finishing work, etc.);
• delaying the process by government agencies (when the house was handed over, the commission found violations).

Before the apartment delivery period expires, the construction company is obliged notify participant about the impossibility of fulfilling the obligation on time, offering him change agreement conditions. By agreeing to it, the participant loses the right to receive a penalty. Having refused the change, the shareholder can receive a penalty and compensation for damage in two ways - by sending it to the developer or to.

Violation of deadlines under DDU

At determining the number of days the equity holder must note to the clause of the contract indicating the period for the transfer of the apartment, and not for the commissioning of the apartment building. This is due to the fact that, according to legal requirements, a house and residential premises in it that have not been accepted by the local administration commission cannot be transferred to participants in shared construction.

In cases where construction cannot be completed within the timeframe agreed with the participants, no later than 2 months before their expiration, the developer is obliged to notify them of this situation and offer to make changes to the previously concluded agreement (clause 3 of article 6 of Federal Law No. 214).

If the developer ignores this requirement or the shareholder refuses to make changes to the agreement, the following consequences may occur:

When drawing up and filing a statement of claim in court, the plaintiff has the right to demand recovery of moral damages and actual damages, as well as a fine (clause 6 of article 13 of the Federal Law “On the protection of consumer rights”).

In addition to the above, it is necessary to take into account that:

• Along with the claim, the shareholder must submit to the court documentation, on which he bases his claims. Among them are:
  • copy of passport;
  • a copy of the agreement for participation in shared construction;
  • a document confirming payment of the contract price;
  • a claim sent to the developer, notification of its receipt, response to it (if any);
  • calculation of the amount of the penalty.
• If the collected penalty is less than 1 million rubles, in accordance with clause 3 of Art. 17 Federal Law “On the protection of consumer rights” and clause 3 of Art. 333.36 of the Tax Code of the Russian Federation (TC RF), the shareholder is exempt from paying state duty. If it is higher than 1 million rubles, then the state duty is calculated in accordance with paragraphs. 1 clause 1 art. 333.19 of the Tax Code of the Russian Federation, with its reduction by the amount of the state duty payable if the claim price is 1 million rubles.
• At the request of the developer, the amount of the penalty can be reduced by the court, if it is clearly disproportionate to the consequences of violating the deadline for renting out the apartment. In this case, the court takes into account the degree to which the developer fulfills his obligations, the amount of damage caused and other circumstances worthy of attention.

Additional agreement to the contract for shared participation in construction

If it is impossible to complete shared construction on time, the developer is obliged to send the shareholder a proposal to change the agreement they previously concluded in terms of the timing of fulfillment of obligations (clause 3 of article 6 of Federal Law No. 214). Such a change, according to Art. 452 of the Civil Code of the Russian Federation (Civil Code of the Russian Federation), drawn up agreement, committed in the same form as DDU, i.e. a written document subject to state registration.

It is important to consider that signing such an agreement deprives the shareholder of the right to receive from the developer a penalty, as well as the right to unilaterally refuse to fulfill the contract within the extended period.

In addition, the equity holder needs to remember that:

• The developer cannot change the deadline for delivery of the object unilaterally, nor oblige the shareholder to sign the specified agreement. Compulsion of the shareholder to its conclusion can be carried out exclusively by the court and only in case of a significant change in circumstances, from which the parties proceeded when concluding the DDU (Article 451 of the Civil Code of the Russian Federation).
• A proposal to conclude such an agreement must be sent no later than 2 months before the expiration of the deadline for renting out the apartment to the shareholder. Along with such a proposal, the developer must send the shareholder documents confirming the impossibility of completing construction on time. If these requirements are not met, the shareholder’s refusal to enter into an agreement will be more than convincing and justified.

Conclusion

Violation of the terms of delivery of an apartment, as a failure to fulfill obligations under the contract, is certainly a violation of the rights of shareholders, as participants in shared construction and consumers. At the same time, the current legislation provides them with a lot of different tools to protect and restore their rights.

At the same time, the legal illiteracy of shareholders does not allow them to take full advantage of the opportunities provided, which allows developers in the vast majority of cases to avoid responsibility.

Question

Refusal to enter into an agreement with the developer

Can I refuse the developer to enter into an agreement to change the terms of delivery of an apartment, if so, for what reasons?

Answer

The legal nature of the agreement to change the terms of delivery of the apartment presupposes the expression of the will of both parties, which is why it is impossible to oblige the shareholder to conclude it.

Thus, you have the right to refuse the developer to enter into an agreement, without indicating reasons or citing his obligation to transfer the apartment no later than the period specified in the contract (clause 3 of article 8 of Federal Law No. 214).

Every lawyer knows how to calculate and collect penalties under the DDU, so my publication is addressed, first of all, to my future clients. On the other hand, no two cases are the same and my experience may also be useful to my colleagues.

Who has the right to collect penalties?

An individual who did not receive his apartment within the period established by the share participation agreement. For example, if the deadline for transferring an apartment under the DDU is the 3rd quarter of 2017, then the delay begins to run from October 1, 2017.

If the deadline is not clearly established in the contract, in other words, it is tied to the commissioning of the house, for example: “the deadline for the transfer of the apartment is within 6 months after the commissioning of the house, but no later than 01/01/2018” - then even if the house is in will not be put into operation, but on 01/01/2018. has already arrived - then the delay begins to flow from 01/01/2018.

If the developer puts the house into operation ahead of schedule, but the apartment was not transferred to the shareholder within 6 months (usually the developer motivates by the fact that the deadline under the DDU has not yet arrived and this is the developer’s right to put the house into operation ahead of schedule) - then there is still a delay begins to flow after the established 6 months.

Is the claim procedure mandatory and what is the period for consideration of a claim?

Submitting a claim is mandatory if the shareholder wants to recover a fine from the developer in addition to the penalty.

The deadline for consideration of a shareholder's claim under Federal Law 214 is not regulated, but if it is established by the DDU, it is better to comply with it. I recently had a case when the term for consideration of a claim under the contract was 20 working days, but I filed a claim in court 2 weeks after the claim was served. And the developer’s lawyer, of course, stated that the claim procedure was not followed. I had to get out and prove that the shareholder had repeatedly come to the developer to resolve the dispute.

Developers also like to send a cunning response to equity holders, something like this: we ask you to come to the office to resolve the dispute, etc. This is done with a far-sighted purpose - then in court the lawyer will declare that the shareholder never came to them, although they were really waiting for him. Allegedly, he himself did not want to resolve the dispute out of court. The law contains a rule - the developer either satisfies the requirements of the shareholder or not. The law does not provide such options as sending a response with an invitation to come to the office or another incomprehensible response.

In court, developers like to claim that the shareholder’s statement is not a claim at all, that the document does not contain a calculation of the penalty or that the calculation is not clear. So, the shareholder is not an accountant; he is not obligated to calculate anything at all. The developer has the right to transfer the undisputed amount to the account of the shareholder.

How to calculate the penalty?

The formula for calculation is elementary - K*S / 150*D, Where K is the cost of the apartment, C is the refinancing rate, D is the period of delay. The refinancing rate must be on the date of transfer of the apartment.

Will a fine be collected if the developer transferred the penalty after filing a claim?

I have had such cases twice - the shareholder goes to court, the developer transfers the money even before the meeting is scheduled.

One of the cases is just the above-mentioned case with a claim, when we did not meet the claim deadline and the developer transfers money after filing the claim, but BEFORE the expiration of the claim period (in this case, I had to try pretty hard to collect the fine in full).

The Supreme Court has already made repeated statements regarding such “voluntary” transfers. In the Review of Share Disputes dated July 19, 2017, the court indicated that if the money is transferred to the shareholder after the filing of a claim, there is no question of voluntariness and a fine is collected.

What is the jurisdiction of disputes under the DDU?

This question is not for general development, but is directly related to the collection of penalties under the DDU. In many equity participation agreements you can find a clause that all disputes are resolved at the location of the construction project. Often this option is not convenient for the shareholder.

Analyzing judicial practice in preparation for one of the cases, I discovered that in order to file a claim at the location of the shareholder/developer, the claim states a requirement to recognize the terms of the agreement on special jurisdiction as void.

This practice arose thanks to paragraph 26 of the PPVS No. 17 of June 28, 2012, which states that the court does not have the right to return the claim if the consumer disputes the terms of the agreement on jurisdiction.

However, why should the shareholder recognize the condition as void if the law gives him the right to choose a court?

After all, in the law ZPP Art. 17 states that the plaintiff chooses which court to bring the claim. And Article 16 states that the terms of the contract are invalid if they infringe on the rights of the consumer. The same thing was “confirmed” by the Supreme Court in the old review of 2013, paragraph 4 .

The legislator specifically gave the consumer the right to choose the place where the dispute will be resolved, and then suddenly the developers began to cheat. In PP No. 17, after which this practice began with the recognition of the terms of the contract as invalid, we are talking only about “challenging” the terms of the DDU.

But can I challenge the condition verbally?

Which is what I did when I was already on the second!!! At the meeting, the developer’s lawyer filed a claim to transfer the case to the jurisdiction. The court refused to grant the petition, citing the right of the shareholder to choose the jurisdiction of such a dispute.

Notice of postponement of construction deadlines

which is sent en masse by developers to equity holders in order to avoid liability for failure to meet the deadlines for the delivery of the house, does not entail a change in the construction period.

Because notice is not an agreement. And the agreement to change the deadline for transferring the apartment must undergo state registration with Rosreestr, in the same manner as the DDU.

This is stated in paragraphs 4, 5 of the recent Review of the Armed Forces on DDU (dated July 19, 2017).

Reduction of penalties under a share participation agreement

This is one of the pressing issues when collecting penalties from the developer.

Yes, the court, at the request of the defendant, can reduce the penalty, but the burden of proving its disproportionality, etc., lies with the developer.

Judging by the publications on Pravorube, I see that in many regions the reduction of penalties is quite an ordinary fact. But in my region the practice is different. In general, the court has never reduced a penalty and/or fine. Of course, I would like to say that this happens because I’m great and so on, but still, this is the practice in the region as a whole.

Once there was a reduction - but this cannot be called a reduction, I deliberately took the refinancing rate on the date of the claim, and not on the date of fulfillment of the obligation (I thought no one would notice).

In one of the cases, a penalty was collected in the amount of 1,657,579 rubles, a fine in the amount of 829,789 rubles 50 kopecks for the amount of the equity participation agreement of 3,322,800 rubles. (I'm attaching the solution).

The court does not have the right to reduce the penalty on its own initiative without a petition from the defendant; this is also stated in the latest Review of the Supreme Court (clause 9).

I know that some lawyers strongly advise against going to court and collecting a penalty, so as not to bankrupt the developer and allow him to calmly complete the house. That’s true, but if the developer starts having problems, it’s clearly not the shareholders’ fault, but the penalty is a drop in the ocean.