The share agreement is a legal trap in which many of our fellow citizens find themselves, especially in recent years, when the pace of construction of multi-storey buildings has increased several times. They grew up, but the global crisis and the difficulties of the economic situation inside the country have contributed, and most of the construction, due to objective and subjective reasons, is not delivered on time. People who planned to move into their own housing, are without money and a roof over their heads for an indefinite period. What measures can be taken in such a situation and can one hope for something? According to lawyers, the only legal opportunity to improve their position is a penalty from the builder according to the DDU. If, of course, you can achieve it.
What is this about?
It is customary to call forfeit such a sum of money that an interest holder receives from a developer in case of failure by the latter to fulfill obligations, fail to meet deadlines or to render services of inadequate quality. It is possible to demand the payment of a penalty under a contract of DDU if the apartment is not transferred to the buyer within the time specified in the contract.
Please note: this is the exact moment of the transfer of housing to the contracting party. In the case when the developer violates the construction period, puts the building into operation at the time that was not promised in advance, it is impossible to obtain a penalty for late payment for delay. An important, literally turning point will be precisely the moment the apartment is handed over to the citizen.
Buyer side law
The obligation to pay a penalty under the DDU arises for the developer who has not withstood the declared construction time due to the provisions of the Federal Law No. 214 adopted in 2004 and dedicated to the legal regulation of shared construction of high-rise buildings.
In fact, there are two ways to obtain the required compensation if the contractor disrupts the terms of work:
- before the court, when the buyer writes a complaint to the developer;
- during the trial, when the buyer appeals to the legal authorities for justice.
In court: what and how?
For a positive court decision on a penalty under the DDD, the established procedure must be observed. The sequence for a citizen seeking to defend his interests is as follows:
- prepare a lawsuit and accompanying documents;
- file a lawsuit with the court;
- monitor the progress of the review;
- get information about the court decision;
- get a writ of execution.
Recover forfeit on DDU claim
This option is suitable for those who seek to avoid judicial red tape as much as possible. If the apartment is not transferred within the time period specified in the share agreement concluded between the developer and the client, then the buyer draws up a claim, which must be sent to the developer.
If it was decided to cooperate with a construction company under a DDU agreement, this procedure for resolving a dispute is not mandatory. If we turn to the already mentioned 214th law governing the sphere under consideration, we can see that there are no requirements for the pretentious procedure for resolving a conflict situation.
How it works
In fact, the court, deciding whether to recover the penalty from the developer under the DDU, can establish the procedure for resolving the issue through the filing of a claim, if certain conditions are specified in the contract that incline. These include clearly described requirements for the claim form addressed to the developer, the timing of the presentation of this document by an individual and the period for which the company must consider the appeal.
Based on judicial practice under the DDD, the penalty can only be recovered if the claim was made in writing and was officially transferred to the developer, that is, it was recorded in accordance with the document flow, received a registration number and contained all the information necessary for the hearing of the case . These include the full and correct name of the parties to the conflict, the circumstances accompanying the failure to meet the deadlines, including the mention of time periods in the contract (that is, the mandatory period). In addition, the interested party must indicate the amount it is hoping for, and attach to it the calculation of the forfeit under the DDU, as well as indicate the time frame in which (at his request) the developer must meet the deadline, paying off the obligations.
Full escort
A claim sent to the builder is nothing more than a piece of paper that will not give rise to the process of advocating for interests if it does not have substantial support in the form of additional documentation proving the citizen’s right to forfeit under the DDD. In order for the document to become legally binding, the following materials are attached to it:
- a copy of the participant’s passport;
- copy of the contract;
- a copy of the documentation confirming that all obligations to pay the sums on the part of the citizen are fulfilled.
It is possible to draw up an appeal already after the execution of the act of acceptance of the premises. In this case, a copy of the act must also accompany the claim. These documents will clearly show how large the deadlines were regarding the promised when concluding the agreement.
Legal subtleties
About how to make a claim, will tell a sample of the penalty for DDU. This can be found in the offices of many developers, and in lawyers, law offices, and in our material. In general, the paper is quite simple.
It is assumed that it is a person without a specialized education, which softens the requirements for wording and content.
At the same time, it should be remembered that the claim should be made strictly in duplicate.
One of them is sent to the developer, and the client must make sure that the company representative receives the document and signs for it. The second instance remains with the interest holder. It is desirable that it be written on the employee who received a copy of the organization, his position, as well as the date. If it is not possible to transfer the document in person and receive a reporting signature, then the claim is sent through the Russian Post, issuing it by registered letter, be sure to make an inventory of the investment. When this letter is received from the post office, the sender will receive a notification signed by an employee of the developer and the date of receipt of the documentation.
It is important!
In practice, the penalty for DDD is often very difficult to obtain, so it is important to observe the described legal nuance. If the company refuses to pay money, then the court considers the letter with a note on the presentation of the claim with evidence in the case - certainly in favor of an individual who was left without a roof over a person’s head. However, here the situation is complicated by another legal document, a statement of claim for a penalty under the DDU. It is also not very difficult to issue it, although many prefer to trust this issue to a lawyer, so as not to take responsibility in case of a possible mistake.
Count - do not count
In order to make a correct calculation of the forfeit under the DDU, it is necessary to pay attention to the already mentioned Federal Law 214. It says that violation of the terms for the transfer of housing to buyers has financial consequences for the developer in the amount of 1/300 of the refinancing rate, the amount of which the Central Bank sets new daily. For the calculation, they take the value characteristic of the day on which the obligations must be fulfilled. Another important value for calculating the indicator is the contract price.
The refinancing rate was called coinciding with the key rate of the Central Bank. Such innovations were adopted in 2016. Since September 19 of this year, a figure of 10% has been set. The day after the transfer is due (under the contract), the period begins, for which the developer must pay the client as a violation of obligations. At the same time, the last day is when the housing was officially transferred under the act of acceptance.
On examples
Suppose a certain agreement contained the wording “the third quarter of such and such a year”. Consequently, the penalty under the DDU will be relied upon from the first of October this year until the moment the apartment is handed over to the client.
The formula for calculating briefly:
- The sought value = 1/300 of the Central Bank rate * contractual value * delay in days.
If the interest holder is an individual, then the formula changes a little:
- Searched value = 1/150 refinancing * contractual value * delay in days.
You may notice that here the double value of the Central Bank rate is used.
Calculation: how to do?
Consider a practical concrete example of how the penalty is considered according to the DDU.
Suppose that the contract indicates the price of the apartment in the amount of 3.45 million. The refinancing rate is ten percent. The date of rental of housing under the contract is March 31, 2017. So, the delay begins already on April 1 of this year. Suppose the interest holder received the housing on June 1, which means that the delay is exactly 90 days.
Suppose that the interest holder is an individual. For him, the refinancing rate is doubled. It is calculated as follows: we divide ten percent by 300, double the result, we get 0.06%. This is the penalty rate accrued daily.
The desired value = 0.06 * 3 450 000 * 90 = 186 300. The amount is calculated in rubles.
If we are talking about a legal entity, an entrepreneur, then the value is considered a little different:
- 10/300 * 3 450 000 * 90.
And it gives 103 500 rubles.
Voluntary payment
Many developers who agree with the requirements of equity holders (not surprising, because they are based on the current law), may agree to pay the penalty voluntarily. This option is the least conflicting and is associated with minimal paper tyagotomotin. However, usually the company offers to reduce the amount. Also rarely, the developer pays all at once, but a schedule is drawn up, according to which the client receives the gradually put to him by agreement.
From a legal point of view, the effectiveness of such an agreement is possible only if the decision is documented. They sign an agreement in which they fix the payment schedule, amounts, all the important points that allow the parties to be identified. Such consolidation gives the client confidence that the developer will fulfill the promise.
Dates and Opportunities
The law does not have clear restrictions on exactly how much time the developer has to consider a claim. This means that the general rules apply to reply to official correspondence, namely 10 days. It is at this time that the company must draw up and send the official paper to the buyer.
Typically, the developer asks to reduce the penalty at times - two or three, and sometimes ten times. Many companies go the other way, proposing to conclude an agreement on the repair of housing. The buyer agrees to reduce the penalty or completely abandons his requirements, and the developer at his own expense makes repairs in a new apartment. Of course, on the one hand, this is good, it helps to avoid bureaucratic difficulties, on the other hand, the benefit that a construction participant could get due to an overdue agreement is sharply reduced. In addition, when concluding such an agreement, it is no longer possible to go to court with a statement of claim.
Go to court
This measure is necessary if the developer does not consider it necessary to pay for being late with the construction site.A party to the contract may appeal to the judge as soon as the response to the claim has not been received by him within the specified ten-day period. In this case, the client expects to enforce the collection of the amounts due to him if the court confirms that the shareholder is right.
If it came to this development option, then you can claim not just a penalty associated with failure to comply with the deadlines for the transfer of housing to the client. We should also mention the moral damage inflicted by such a negligent attitude to our obligations, and evaluate it in monetary terms. It will not be superfluous to take advantage of the opportunity to receive the amounts spent on the trial. In addition, a fine is possible depending on the court decision on the issue payable. Up to 50% of this amount may be an additional fine levied in favor of the client. About this opportunity, as well as about the conditions under which you can count on it, tells the federal law on consumer rights in Russia.
How to apply to court?
To write a statement of claim that would have legal force, it is necessary not only to draw up the paper correctly, but also to attach several binding documents to it. The most important:
- copy of the third page of the passport;
- copy of DDU;
- a copy of the documentation attesting that the amounts laid down by the contract have been paid;
- a claim marked as being handed over to the developer (notification from the post that the document was received);
- if there is one, the act of receiving and transmitting a home.
In some cases, additional documents are required, which is determined by the specifics of a particular case.
Documents collected: what next?
When the package of documents is fully prepared, you can write a statement of claim. Our legislation spells out the requirements for this document, and the first among them is a written appeal. It must be indicated inside which court the document is written to, what is the full name and address of the plaintiff and defendant, what is the essence of the requirements and because of what circumstances the rights of one of the parties to the transaction were violated. You must provide evidence of your position and indicate the total cost of the claim, consisting of the penalty and the amount that the plaintiff lays for damages.
It is necessary to indicate if measures have been taken to resolve the conflict, without resorting to a court, how this was done and what results brought. However, if the contract does not have requirements for the buyer first to write a claim to the plaintiff, this paragraph can be safely omitted. They also additionally list the list of documents accompanying the statement of claim, and personally sign the paper, indicating information for feedback.
Where to go?
Which court should I apply to enforce my rights? The laws state that the plaintiff has the right to choose. You can send an appeal to the court for which the address of the plaintiff is assigned, to the authority responsible for the address of the organization’s location, or to the court that is responsible for the address where the contract was concluded. The latter is available based on federal law protecting the rights of the buyer.
If the penalty amount is less than 50 thousand, the plaintiff must send an appeal to the justice of the peace. There is no need to pay a fee when submitting an application; the law protecting consumers' rights also talks about this.