Violation of deadlines for apartment delivery by developer

We determine the completion date of the house

If you have become a party to a shared construction agreement, it includes a specific deadline for the delivery of the house and the transfer of the apartment to the owner.

It is the same for all shareholders of an apartment building or one section. The following main terms are fixed in the DDU:

1. Intro for exploitation.
2. Transfer of a separate apartment to the copyright holder.

In accordance with Federal Law No. 214, a construction company cannot transfer an apartment until the house is finally put into operation. This is the responsibility of the local administration.

The exact transfer period is determined in the following ways:

Violation of deadlines for delivery of the house by the developer

First of all, it is necessary to distinguish between the concepts of “violation of the deadlines for handing over the house by the developer” and “violation of the deadlines for transferring the object to the participant in the share agreement.”
The first formulation implies a legally more correct “commissioning period” - the official date of completion of all construction and installation work at the site in accordance with the design and permitting documentation. Permission to commission is issued only by Gosstroynadzor. Violation of commissioning deadlines is much less common than delay in handing over the keys. If you have already bought an apartment in a new building, but the transfer still occurs, this threatens to waste time and money on rented housing, but you should not immediately count yourself among the defrauded shareholders. Typically, developers warn shareholders about this in advance to avoid fines and not spoil their reputation. For example, at the end of 2016, this is exactly what the Normann company did. Participants in shared construction must be sent a notification with a proposal to make changes to the DDU no less than 2 months before the documented completion date.

The reason for panic is the absence of any construction work at the site and the “silence” of the company. In order for a house to be officially recognized as a long-term construction project, it is necessary to prove that the construction has not moved forward for at least the last 1.5 years, i.e. she is "frozen". After the new regulatory rules come into force on June 30, 2020, those objects for which the delay in fulfilling obligations to shareholders exceeds 9 months from the date specified in the DDU will be considered long-term construction. After this fact is recognized, the new building is included in the register of long-term construction projects, and the authorities will closely monitor further work.

The reasons that a developer postpones the completion of a house can be very different: from ineffective work, a change of general contractor (which is not always the responsibility of the construction company) to interruptions in financing and banal delays in municipalities. Before sounding the alarm, we advise you to carefully study the current situation.

Proof of violation of the deadline

The transfer deed can be used as evidence. In its absence, we can say that the organization has not fulfilled its obligations. If there is a deed with a date that significantly exceeds the period of transfer of the apartment, this is also a violation of the terms of the agreements.

In accordance with Federal Law No. 214 “On the Protection of the Rights of Shareholders,” the obligation to establish delivery dates and fix them in the contract is provided. Handover means issuing keys and signing a deed for the finished apartment. If the developer offers to sign it for an unfinished project, you cannot agree to it . Such actions are illegal.

Note! The law does not regulate the specific type of indication of the transfer period. It is important that it be the same for all parties to the contract for a particular house or block section. In the event of a legal dispute, wording such as “approximately” or “approximately” cannot be taken into account.

Complaint to the developer for violation of deadlines for delivery of the house

A claim for violation of deadlines for the delivery of an apartment is a document aimed at pre-trial receipt from the developer of the amount of penalties, penalties, as well as losses caused to the shareholder as a result of violation of deadlines. The claim is sent to the registration address of the executor's organization by post with notification of receipt or transferred to the office of the organization in person, with the obligatory marking of receipt on the second copy of the claim.

The claim can be sent to the developer both before and after signing the transfer deed (transfer of the apartment).

However, in order to avoid misunderstandings and more productive collection of funds, it is advisable to submit it after the developer has transferred the apartment.

When drawing it up, the shareholder must take into account that such a claim is drawn up in free form , however, for a positive result it must contain:

• A description of all the circumstances of the situation, presented in chronological order, starting from the moment of signing the agreement and ending with the moment of transfer of the apartment.
• An indication of the full fulfillment of the obligations assigned to the shareholder.
• Calculation of the missed deadline for delivery of the apartment, as well as calculation of the penalty payable by the developer. Legal basis for the developer’s obligation to pay a penalty in accordance with clause 2 of Art. 6 Federal Law No. 214, on a voluntary basis, in accordance with Art. 13 Federal Law “On Protection of Consumer Rights”.
• demand for payment of a penalty, as well as other demands, if any (for compensation for damage, moral damage, etc.).
• An indication of the deadline for responding to a claim (for example, 10 days), as well as an indication of the use of a judicial procedure for collecting a penalty if the requirements set out in the claim are ignored.

Agreement to postpone the deadline

If a construction company assumes that for objective reasons the deadline may be violated, it must notify all shareholders about this.
This must be done no later than 2 months before the contract deadline. In accordance with paragraph 3 of Art. 6 Federal Law “214”, an additional agreement is concluded with each willing shareholder. It must include the following information:

• Reason for postponement.
• New date for transfer of the apartment.

Note! The agreement is only an offer to renew the contract on a voluntary basis. The shareholder may refuse this or accept the offer.

If you sign this document, you may lose the following:

• Opportunities to claim payment of late fees.
• The right to terminate the contract unilaterally and return funds paid under the contract. In this case, you will have to wait for a new date according to the concluded agreement.

The shareholder may refuse to sign this document. In accordance with the Civil Code of the Russian Federation, any change in the basic conditions is permitted only by agreement of the parties. The future owner of the apartment is an equal party to the agreement, so he can refuse changes. This does not have negative consequences from a legal point of view. He may demand payment of a penalty .

If the developer significantly delays the construction of the house and the shareholder has the opportunity to buy another property, he has grounds for unilateral termination of the contract. He is required to return the money he paid. In addition, he can sell the unfinished apartment by assigning the rights of claim to a third party.

Agreement to postpone the completion of a house

If the Developer violates the deadline for handing over the house (including for objective reasons beyond his control), he is obliged to notify all participants in shared construction about this no later than two months before the deadline specified in the contract, and invite them to change the DDU agreement , having concluded an additional agreement to it (clause 3, article 6, Federal Law-214).

An additional agreement to the DDU on postponing the delivery 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 you need to know about the common property of spouses in a transaction for the purchase and sale of an apartment - see the Glossary at the link.

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

If the Developer turns out to be convincing enough and the shareholder agrees (“oh, okay, he persuaded me”) to sign an additional agreement to the DDU about changing the deadline for handing over the house and transferring the apartment, then he will lose the following:

1. He will no longer be able to claim payment of a penalty due to the delay in delivery of the house (see below about the penalty). 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 terminate the DDU unilaterally (on termination, see below) and to return his money on the basis of violation of the deadline for delivery of the house by more than 2 months (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 the event of legal disputes with the Developer, the shareholder will not be able to rely on the original terms of the DDU.

What should be indicated in the Apartment Acceptance and Transfer Certificate - see the Glossary at the link.

Sequencing

If all deadlines have passed and the construction company does not plan to fulfill the agreements, the equity holder has the right to retaliate. To do this, he can file a claim in court and demand not only the return of the cost of the contract, but also compensation. But before that you need to perform certain actions.

Preparing a pre-trial claim

Pre-trial settlement is an opportunity to resolve the problem peacefully without involving the judiciary.
For the judge, this is confirmation that the shareholder has made all independent attempts to obtain compensation. First of all, a pre-trial claim is drawn up against the construction company. It must be justified and drawn up legally competently. In many ways, the claim is identical to a statement of claim in court, and when filed, a copy of it is attached to the case file. The requirements in the pre-trial claim must be the same as in the lawsuit. When drawing up this document, it is necessary to refer to Articles 309 and 310 of the Civil Code of the Russian Federation, as well as to Federal Law No. 214.

The claim must contain the following:

• Date and registration number of the DDU.
• The subject of the contract, which is an apartment.
• Object delivery deadline.
• Documented losses from the actions of the developer.
• Violations of the construction company under the contract.
• The amount of the principal debt.
• Amount of compensation and settlements.

If the pre-trial claim and the lawsuit differ in terms of the requirements and compensation, the judge may reject it and not accept the case for consideration. In this case, you will have to submit a new claim to the developer. To increase compensation, you can present copies of receipts or receipts from the landlord for rented housing or a hotel.

Before filing a claim, the shareholder may discover that the agreement contains clauses that contradict current legislation. It is important to ask for their invalidation even in pre-trial demands . Otherwise, the judge may decide that the shareholder has agreed on this issue.

Transferring a claim to a construction company

The document must be drawn up in two copies, one of which is given to the developer, and the second remains with the equity holder.
There are two main ways to submit a claim:

1. Personally . The second copy is stamped with the acceptance stamp and the incoming number.
2. By mail . A mandatory notification letter is sent to serve as confirmation of delivery.

How to calculate the penalty?

There is a formula by which you can calculate the penalty yourself. It looks like this:

Cost of the contract x number of days of delay x refinancing rate on the day of transfer, indicated as a percentage x 2/30,000

If the property is paid for in installments, the refinancing rate is taken from the period when the payments were made. The resulting amounts are added up.

The developer is given 10 days from the date of receipt of the claim to prepare a response. If no action is taken, you can file a lawsuit.

Claim

Few resort to litigation. But in most cases this is the only effective solution to the problem. It can be settled before the case is decided.

The statement of claim with attachments is submitted to the district court at the location of the construction or the address of the developer. Before filing a claim, it is useful to study the practice in different courts in order to choose the most appropriate instance. The amount of compensation may vary significantly.

To submit an application, you must contact the reception office with a complete package of documents.
It is important that you have at least 3 copies .
One copy each is handed over to the court and the defendant. If several shareholders appear in one agreement, they must file a class action lawsuit. They will have to appear in court in person or send a lawyer on their behalf to represent their interests. A general collective appeal by house shareholders is also allowed if there are many dissatisfied people. Such matters are taken more seriously. But the proceedings may drag on for months and years, since the case will be postponed if at least one of the plaintiffs fails to appear.