Collection of penalties from the developer through an arbitration court.

The most common question from our clients is when should we begin the procedure for collecting a penalty for late delivery of an apartment under the contract? Many are at a loss and mistakenly believe that it is possible to collect a penalty only after the developer has provided the apartment, or after receiving an official refusal of the submitted claim by the shareholder.

But these opinions are based only on rumors spread by unscrupulous developers themselves. In this article, we will look into all the pressing issues related to compensation for penalties for late delivery of an apartment under the contract and, based on many years of experience, we will give a competent assessment of this topic.

Calculation of penalties for late delivery from the first day

As a rule, the developer must pay a penalty due to failure to meet the delivery deadline. And despite the fact that he notified in advance (2 months in advance) about the missed deadlines, shareholders have the right to disagree with the new conditions, after which they can go to court to collect a penalty for late delivery.

The shareholder should know that he has every right, starting from the first day of delay in the delivery of the apartment, to go to court to protect his interests. This period begins from the day on which you become aware of the violation of your rights and during the three-year limitation period.

Before going to court, do not forget about an important point, which is to send a claim to the developer. When making a claim, it is advisable for the buyer to provide a reference to Federal Law No. 214, Art. 309-310 of the Civil Code of the Russian Federation, as well as on the clauses of the equity participation agreement. Plus, the equity holder will need to attach to the claim a calculation of the penalty, copies of the DDU, passport and documents that justify the actual payment for the purchased apartment.

The delay will begin to count from the day following the day when the developer should have given the apartment to the shareholder. This time period, during which you have the right to apply for compensation for the resulting penalty, will end on the day when the act of acceptance and transfer of the apartment was signed.

And also the date when the unilateral act was received, and only if no facts of evasion from accepting the apartment were recorded. For detailed information, go to the page: link “Unilateral acceptance and transfer act: is it possible to recover the penalty?”

Based on all of the above, it follows that the shareholder has the opportunity to apply for compensation almost every month of the missed period. In our practice, there are cases when clients managed to collect penalties for late delivery in several calls, for different periods of delay. Such appeals allowed them to receive a more significant amount than in one trial.

Statement of claim to court against the developer for delay

B Name of the court

Court postal address

With a claim price of up to 50 tr. - justice of the peace, more than 50 thousand rubles - district or city court,

the claim can be filed at your choice (wherever it is more convenient for you) - at the place of residence / stay of the plaintiff, the location of the defendant / its branch, the place of conclusion or execution of the contract

Find a magistrate by address

Find a district/city court

Plaintiff: Last name First name Patronymic

Postal address, contact phone number

Respondent:

Full name of the developer from the contract All known addresses of the developer (legal address, office address), contact phone number

Find the legal address of the developer by TIN

State duty: exempt from payment

Cost of claim: __________ rubles

Statement of claim for consumer protection.

The date between me, Last Name First Name Patronymic (shareholder) and Name of the developer (developer) an agreement for participation in shared construction No. _____ was concluded. According to this agreement, the developer undertakes to build (create) a residential brick apartment building at the address: ______________, and after receiving permission to commission a residential building, transfer the corresponding shared construction object to the participant in shared construction, and he, in turn, undertakes to pay the price stipulated by the contract and accept the object shared construction.

According to clause ____ of the Agreement, the object is a ____-room apartment No.___, with a total area of ​​____ sq.m., including a living area of ​​____ sq.m., in the ____entrance on the ____ floor of a residential building. The cost under the contract is _________ rubles, and was paid by me in full (date). According to clause ____ of the Agreement, the developer transfers the apartment according to the transfer and acceptance certificate by (date).

Within the period specified in the Agreement, the developer did not receive permission to put the residential building into operation; the apartment was not transferred to me according to the transfer acceptance certificate / only the date was transferred.

On date, I filed a claim with the defendant, in which I asked to transfer the shared construction project and to pay a penalty for violating the deadlines for transferring the apartment. In response to the claim, the developer indicates that there are no grounds for paying a penalty.

In my opinion, the developer’s refusal to voluntarily satisfy my demands is illegal and violates my rights.

According to the Law of the Russian Federation “On the Protection of Consumer Rights,” a consumer is a citizen who intends to order or purchase, or who orders, purchases or uses goods (work, services) exclusively for personal, family, household and other needs not related to business activities. The law regulates the relationships that arise between consumers and manufacturers, performers, importers, and sellers when selling goods (performing work, providing services).

According to paragraph 1 of Art. 4 of the Federal Law “On participation in shared construction of apartment buildings and other real estate and on amendments to certain legislative acts of the Russian Federation” the subject of the agreement for participation in shared construction is the construction (creation) of an apartment building and (or) other real estate, after the completion of which the developer becomes obligated to transfer the corresponding shared construction object to the participant in shared construction.

According to Article 8 of Federal Law No. 214-FZ of December 30, 2004, the transfer of a shared construction project is carried out no earlier than after receiving, in the prescribed manner, permission to put into operation an apartment building. After the developer receives permission to put into operation an apartment building in accordance with the established procedure, the developer is obliged to transfer the shared construction project no later than the period specified in the contract.

In accordance with Art. 6 of Federal Law No. 214-FZ of December 30, 2004 The developer is obliged to transfer the shared construction object to the participant in shared construction no later than the period specified in the contract and must be the same for participants in shared construction, to whom the developer is obliged to transfer shared construction objects included in the apartment building and (or) other real estate. In case of violation of the deadline stipulated by the contract for the transfer of a shared construction object to a participant in shared construction, the developer pays to the participant in shared construction a penalty (penalty) in the amount of one three hundredth of the refinancing rate of the Central Bank of the Russian Federation, valid on the day of fulfillment of the obligation, of the contract price for each day of delay. If the participant in shared construction is a citizen, the penalty (penalty) provided for in this part is paid by the developer in double the amount.

The transfer of the shared construction object was not carried out on the day of filing the claim / the object was transferred according to act No. dated. The refinancing rate of the Central Bank of the Russian Federation according to the Directive of the Bank of Russia dated September 13, 2012 N 2873-U is 8.25%. The final price of the contract is determined in the amount of _______ rubles.

In connection with the above, I am making a claim for the collection of a penalty for the period from the date, that is, from the day following the day of expiration of the transfer of the shared construction object (apartment) under the contract to the date, the date of the actual transfer of the apartment / the date of the court’s decision in the amount of (____ rubles * 8.25% / 30000 * 2) = ____ rubles for each day of delay.

If the apartment is transferred: The total amount of the penalty will be _____ rubles * ____ days of delay = ___________ rubles.

If the apartment is not transferred For information: on the date of filing the claim in court (date), the amount of the penalty will be (_____ rubles * 8.25% / 30,000 * 2) * ____ days = ______ rubles.

I also have grounds to demand compensation for moral damage. Art. 1099 of the Civil Code of the Russian Federation establishes that moral damage caused by actions (inaction) that violate the property rights of a citizen is subject to compensation in cases provided for by law. This possibility is provided for by the Law of the Russian Federation “On the Protection of Consumer Rights” (Article 15): moral damage caused to the consumer as a result of violation by the manufacturer (performer, seller, authorized organization or authorized individual entrepreneur, importer) of consumer rights provided for by the laws and legal acts of the Russian Federation, regulating relations in the field of consumer rights protection, is subject to compensation by the causer of harm if he is at fault.

The amount of compensation for moral damage is determined by the court and does not depend on the amount of compensation for property damage. Compensation for moral damage is carried out regardless of compensation for property damage and losses incurred by the consumer.

The obviously illegal actions of the defendant associated with the unreasonable refusal to comply with the requirements became the reason that for a long time I experienced strong negative emotions and experiences, which was expressed in the prevalence of bad mood, loss of strength, decreased performance, sleep disturbances, increased irritability, for which the positive emotional background was significantly lost when communicating with family, friends and work colleagues. Thus, I suffered moral damage, which I estimate at _______ rubles.

In accordance with Article 333.36 of the Tax Code of the Russian Federation, plaintiffs in claims for the protection of consumer rights with a claim value of up to 1 million rubles are exempt from paying state fees in cases heard in courts of general jurisdiction, as well as by magistrates.

Based on the above, I request:

To recover from the full name of the developer in favor of the Last Name, First Name, Patronymic:

1) a penalty for violation of the transfer of a shared construction project (apartment) provided for in the contract for the period from ____ to ____ in the amount of _____ (in words) rubles / from _____ to the date of the court decision in the amount of ____ (in words) rubles for each day of delay;

2) compensation for moral damage in the amount of _______ (in words) rubles;

3) a fine provided for in paragraph 6 of Article 13 of the Law “On Protection of Consumer Rights” in the amount of 50% of the amount awarded by the court in my favor.

Applications:

— a copy of the statement of claim for the defendant (by number of addresses);

— calculation of the amounts collected (1 copy for the court + for the defendant according to the number of addresses);

— copy of passport (1 page + current registration);

- information extract from the Unified State Register of Legal Entities for the defendant (find by the developer’s TIN and print from the website https://egrul.nalog.ru/)

— a copy of the agreement for participation in shared construction No. date;

- a copy of documents for paying for the apartment - payment orders, checks, loan agreement, etc.;

— a copy of the act of acceptance and transfer of the shared construction object No. date (if any);

— a copy of the claim from ______ (with the developer’s mark of receipt / with a receipt for sending a registered letter and postal notification);

— a copy of the response to the claim;

— receipt for SMS notification (download from the website of the court to which you are filing the claim, fill out, print and sign 1 copy);

Plaintiff ___________________ Last name I.O., date

Calculation of amounts collected

The state duty is not paid (clause 4) part 2, part 3 of article 333.36 of the Tax Code of the Russian Federation - plaintiffs are exempt from paying the state duty in cases considered by courts of general jurisdiction, justices of the peace - for claims related to violation of consumer rights, if the price the claim does not exceed 1 million rubles).

Total cost of the claim on the day of filing: ______ rubles

Plaintiff _____________ Last name I.O.

date

Is there a need to wait for action from the developer?

From the moment the delay occurs, you have the legal right to collect the penalty in court. You will not need other auxiliary actions to compensate for late fees that are in one way or another related to the developer.

The shareholder does not need to wait for a response to the letter of claim sent to the developer, since it simply may not be expected. The majority of developers do not pay due attention to incoming letters of claim and rely on the ignorance and legal illiteracy of shareholders. Although the developer is obliged to give an official refusal or consent to satisfy the claim within 10 days.

Therefore, a defrauded shareholder should not rely on the integrity of the developer and expect the actual delivery of the apartment, because the terms can stretch for many years, and the fact that the same developer will go bankrupt at the time of delivery of the housing is not excluded.

In addition to the calculated penalty for late delivery of the apartment under the contract, the buyer has the right to demand compensation for losses, in other words, lost profits, referring to Article 15 of the Civil Code of the Russian Federation.

Don’t delay and wait, act, protect your rights in court, and conduct active claims correspondence.

Be careful!

In the event that the delivery period has been delayed for more than 2 months, the shareholder who signed the DDU has the right to terminate the agreement and demand a return of the invested funds. It is possible to receive a penalty for late rent through the court, but a more expedited process is pre-trial proceedings.

Be extremely vigilant about the documents and papers that you intend to sign. Be sure to analyze it and contact a professional to assess its literacy and legal accuracy. Remember that the approaching deadline for the delivery of an apartment property entails an increase in nervousness. The developer is not asleep, he is 100% sure of his inability to fulfill his obligations and all his efforts in this situation are aimed at strengthening his positions. He is ready to make every effort to minimize his financial losses that will follow the payment of late penalties.

What can you do in this case, or rather, you should not agree to sign an additional agreement. agreements to the existing DDU (share participation agreement), which are aimed at increasing the existing term. This absolutely does not need to be done until construction is completed, and also until the acceptance certificate is signed.

Signing additional agreement is only possible if you see a benefit for yourself. An example would be a developer’s proposal to indicate the apartment’s delivery date, taking into account the finishing touches.

When accepting an apartment, you must pay attention to the date indicated in the acceptance and transfer certificate. You should not rely on the developer and the eloquent praises of caring employees who are trying to lull your vigilance and benefit for themselves, regardless of the disastrous consequences for you. Make sure that the act indicates the correct date corresponding to the day of acceptance; you may need to do it in your own hand, in capital numbers, both in the header of the act of acceptance of the transfer, and next to your signature.

At the moment, massive falsification of documents has become widespread, when developers, in pursuit of their own benefit, are not afraid to replace the dates in the Acceptance and Transfer Certificates, indicating a deliberately longer deadline.

We remind you, dear shareholders, that if the apartment acceptance certificate is signed, the developer is not deprived of the obligation to pay a penalty for late delivery of the apartment under the contract and to compensate for losses incurred by the shareholder. And this obligation remains the same if, at the time of signing the act, you indicated that you have no financial claims or demands on the developer. For more detailed information, we suggest you follow the link provided: I’m not ready to provide a link to the corresponding article yet)

Conclusion

Based on many years of practice, it is possible to return your invested funds in case of violation of the approved conditions under the equity participation agreement, but unfortunately, the amount usually does not correspond to that prescribed by federal law.

In order not to spoil your life and not fall for the tricks of unscrupulous developers, you should carefully approach their choice and thoroughly read the terms of the share participation agreement. You should not rush into overly tempting offers, since for the most part this is just a deception.

Shareholders quite often face the problem of delays in delivery of premises.

Developers allow delays in the commissioning of premises by one month, and sometimes by several years.

There were cases when the change was not made at all. Every person who finds himself in such trouble sooner or later finds out that he is entitled to a penalty.

But not everyone knows what size it is. Let us consider in detail the calculation of penalties under an equity participation agreement.

Actions of the consumer before collecting a penalty from the developer

1. Developer notice. At least two months before the completion date of construction work, you must notify the developer by registered mail of your readiness to accept the shared construction project. We enclose with the letter: a copy of the agreement for participation in shared construction, a copy of the shareholder’s passport, copies of documents confirming the fact of fulfillment of obligations to pay the contract price.
2. Developer's response. Two to three weeks before the deadline for the delivery of a shared construction project, we check our mail to see if it contains either a notification about the postponement of the completion date of construction, and therefore the deadline for the delivery of the object under construction, or an invitation to inspect the object and sign the acceptance certificate. Depending on the answer, you need to take different actions:

• You have received an invitation to inspect a shared construction project. In this case, it is necessary to contact the developer’s representatives and confirm the date and time of inspection of the transferred property. During the inspection, the shareholder must check the compliance of the transferred object with the terms of the agreement for participation in shared construction, as well as with the construction standards in force at the time of delivery of the shared construction object. In the absence of visible deficiencies, the parties to the shared participation agreement sign an act of acceptance and transfer of the shared construction project. If, during an inspection, the shareholder finds construction defects (cracked walls both inside the residential premises and in common areas, leaks, poorly closing windows and doors, a falling facade, etc.), then it is necessary to draw up an act indicating the date of inspection of those involved in the examination of persons and identified deficiencies. The inspection report with defects is drawn up in two copies - one for each of the parties. After eliminating the deficiencies, the developer re-invites the participant in shared construction to inspect and transfer the shared construction facility.
• You have received notification that the construction completion date has been postponed. When postponing the completion date of construction work on an apartment building, the shareholder repeats the steps in paragraph 1 of this instruction at least two months before the already changed construction completion date.
• You have not received any notification from the developer. In this situation, first of all, it is necessary to record the developer’s violation of its obligations under the agreement of participation in shared construction. After this, a claim is sent to the developer with a requirement for the voluntary payment of a penalty (penalty) in connection with the violation of the construction deadlines and the transfer of the shared construction project to the citizen participating in the shared construction. If the funds have not been credited to your account within 10 business days, we move on to the next stage - filing a statement of claim in court.

General information about what a DDU penalty is, the collection of which will be discussed

In the modern world, the construction market is growing rapidly. A lot of companies offer to invest money in building houses.

People invest money and wait for the house to be put into operation. Purchasing such housing is much cheaper than purchasing a new ready-made property.

Of course, this procedure paints bright prospects. But, as in any other business, there are drawbacks. As for equity participation, it involves a lot of risk.

You can stumble upon double sales, long construction, fraud, and the like.

Let's consider a specific situation from life. A person invests money and becomes a construction shareholder. But now, the deadline for putting it into operation has come, and nothing happens.

Another six months have passed since the apartment was supposed to be handed over to him, but construction has not yet finished. He begins to look for housing options on the secondary market and finds an excellent option.

Accordingly, he wants to return his money and terminate the concluded contract. To do this, the shareholder sends a notice to the developer, but the company does not want to return the money. The developer begins to scare the shareholder with penalties.

Every person should understand that in such situations the law is on his side.

The shareholder has every right to terminate the deal and get his money back. Then he files a claim in court. But the problem is that while construction was going on, inflation greatly reduced the amount of funds invested.

That is why the state approved Federal Law No. 214. He protects shareholders and restores justice. On its basis, you can collect. This amount will have to be paid to the developer on top of the contract.

How to get a penalty?

The developer, having received a notice of payment of a penalty, will, of course, refuse to pay it.

Therefore, shareholders are forced to file a lawsuit in court to recover it. An ordinary person during this procedure can rely on the “Consumer Rights Protection Law”.

Together with the penalty, a person has the right to recover a fine, which is fifty percent of the awarded amount.

In addition, moral damages are also recovered jointly, but their amount is usually no more than ten thousand rubles. The statement of claim must be filed at the place of registration of the shareholder or the registration of the defendant’s company.

You should know that when the amount of the penalty is less than fifty thousand rubles, you only need to contact the magistrate’s court. In other cases, the plaintiff has the right to choose the court independently.

Important! If the amount of the claim does not exceed one million rubles, there is no need to pay the state fee.

Together with the application, the following documentation is submitted to the court office:

• Passport
• Participation agreement
• Copies of receipts for amounts paid
• Calculation of penalties

To do this, you will additionally need to provide a rental agreement and receipts confirming payment. All costs are recovered from the defendant, including legal costs. After the judge's decision comes into force, the shareholder can withdraw the writ of execution.

Collection of the DDU penalty is carried out in two ways:

• You can take it to the bailiffs for execution
• It is permissible to send this document by mail to the financial institution in which the defendant’s current bank account is located.

We filed a lawsuit against the developer. They collected a penalty, a fine, and moral damages. But we calculated the penalty in the claim using the formula given in the article. This seems to be the case according to the law. And the court decided that since the developer is state-owned (GUSST), then part of the penalty can be forgiven. After all, there is a crisis outside, it’s hard to work. In general, we received a penalty that was 4 times less than it should have been. They say that this is a common practice in our city.

The topic related to the calculation of penalties under an equity participation agreement was and is relevant for all shareholders who invested their money in a construction project, but it was not put into operation on time. Unfortunately, this happens very often, so it is important not to get lost, but to immediately take measures to get your funds back.

According to Federal Law No. 214, for each day of delay, a certain compensation is collected from the developer. Based on this, if the deadlines are not too long, then the penalty will be small, and will rather serve as a reminder to hurry up. But if the construction has not yet been completed, and it is not known when it will be completed, then the violation of the contract can be considered significant, and the amount of compensation due will increase significantly.

Trust the professionals

Contact professional lawyers who will take on all the work of collecting the maximum penalty from the developer in Moscow and the region, from writing a pre-trial claim to receiving your money.

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Judicial procedure for collecting penalties

To draw up a statement of claim, you can use the same data that is indicated in your claim. Additionally, you will need to provide information about the court where you will be applying. In most cases, this is the district court where you live or where the developer is located. If the amount of the claim is less than 50 thousand rubles, then a magistrate at the location of the construction company will provide you with legal assistance.

Note! If your developer is at the stage of bankruptcy, then a claim for the collection of penalties must be filed with the arbitration court, which is considering the bankruptcy case.

The following documents can be attached as evidence to the statement of claim:

• shared construction agreement;
• payment documents confirming payment under the agreement;
• act of acceptance and transfer of the apartment (if it already exists);
• documents confirming payment of state duty (if it is paid in your case);
• a copy of the shareholder's passport;
• documents indicating that the claim has been sent to the developer.

Note! The shareholder is exempt from paying state duty if the amount of recovery does not exceed 1 million rubles.

Clearly formulate your requirements to the developer for collection:

• penalties;
• losses;
• moral damage;
• fine under the consumer protection law;
• expenses for paying state fees.

Formula for calculating penalties

Today you don’t need to use super complex formulas to find out the amount of the penalty. The DDU penalty calculator gives a person the opportunity to see the amount of the penalty that can be recovered from an unscrupulous developer. There are many virtual resources on the Internet where you can calculate penalties online.

The rules by which penalties are calculated for legal entities and individuals for 2021 are slightly different. Even if the differences are not significant, they must be taken into account in order to get the correct amount. Of course, it is desirable that this is never needed, but it is better to find out all the information in advance.

So, here is the main formula for calculating the penalty: SM = SK x 1/300 SR x PP.

Now let's look at the conventions:

• SM is a penalty;
• SC – contract amount;
• SR – refinancing rate;
• PP – number of days overdue.

Now is it clear that the amount is calculated simply? But there are many nuances, in particular, the refinancing rate parameter. The rate changes every few years, sometimes more often. In the penalty calculator under Federal Law 214, the 2021 calculator uses 8.25 percent of the rate. In the first half of 2021 it was 11%, and in the second – 10.5% per annum.

Without knowing this, the calculated amount would be incorrect, so the virtual penalty calculator for 214 will show the correct result only if the calculation is carried out for a certain period, taking into account the refinancing rate that worked at that time. Therefore, it is more reliable to calculate all the data yourself, and only then double-check it online.

Claim under DDU for a penalty against the developer

Once you have determined that the developer has violated his obligations and is late with the transfer of the apartment, you need to find out the addressee of your claim. You need to start with the developer. You can sue the developer for delay only after you try to resolve the issue with him “peacefully”.

The process of filing a claim for a penalty under an equity participation agreement is quite complex. You will have to collect a lot of information and correctly apply the formula for calculating penalties under 214-FZ. If you have any difficulties in preparing this document, you can always seek help from a lawyer on DDU issues.

The letter of claim to the developer must contain the following information:

• name and address of the developer company. This information can be found in the contract, but it is better to double-check it on the official tax website using the Check counterparty service;
• calculation of penalties under 214-FZ (we will dwell on this issue in more detail below);
• your claims for penalties and damages;
• deadlines for payment of the penalty by the developer (any reasonable period can be specified);
• payment details where the developer can transfer money.

How to calculate the penalty for DDU?

To calculate the penalty according to 214-FZ, there is a special formula: N=KDP*1/300*StR*CDDU, where

N - penalty

KDP – number of days overdue

StR – refinancing rate (currently it is 10%)

CDDU – price according to DDU

Calculation example:

N=300 days*1/300*10%*3000,000 rubles = 300,000 rubles

The amount of the penalty amounted to 300 thousand rubles for 300 days of delay when the price for the apartment was 3 million rubles. But if you bought an apartment as an individual, then the amount will double. And in our example it will be 600 thousand rubles.

Also, in addition to the penalty, you can demand damages from the developer. For example, during the period when you were waiting to receive housing, you were forced to rent an apartment. Documented rental costs can be recovered from the construction office.

Formulas for individuals and legal entities

• An individual is a person who, having concluded an agreement, was waiting for the house to be put into operation, but seeing that the deadlines have long been overdue, he needs a penalty. In order to find out its amount, use a penalty calculator under an equity participation agreement, or you can use the standard formula:

Number of overdue days ÷ 150 × 8.25% × contract price × 2 (double penalty)

• A legal entity is an organization that has entered into a DDU agreement and now needs compensation for the damage caused. Here is the formula for calculating the penalty for DDU:

Number of overdue days ÷ 300 × 8.25% × contract price;

Now let's look at specific numbers. For example, if the contract was drawn up for an amount equal to ten million, and the delay lasted for a hundred days, then according to the said formula, the amount of the penalty from the developer for a legal entity will reach 275 thousand rubles. And compensation for individuals will be 1.1 million rubles.

But this is not all that the developer will have to pay to the defrauded shareholders after collecting the penalty:

1. In addition to fine payments, he is responsible for paying for legal services, which the shareholder was forced to order in order to collect evidence at trial.
2. The developer undertakes to pay all legal costs.
3. Payments of penalties, etc.

Naturally, the developer understands the risks, because if the fine is collected as a single payment, and the amount is large, this can significantly undermine the financial position of the company.

Difficulties in collecting penalties under the DDU through an arbitration court

An obstacle to receiving the full amount of the penalty may be not only its disproportion to the consequences of violation of contractual obligations. It often turns out that the relationship between the developer and the shareholder begins to be regulated by Law No. 127-FZ on insolvency and bankruptcy.

This happens in the case when, during the period of contractual relations under the DDU, the developer simply went bankrupt. All payments during the bankruptcy of the developer that relate to:

• return of funds invested in construction;
• amounts that the shareholder is entitled to as compensation (penalty, fine, moral and material damage),

must be included in the register of residential real estate or in the register of creditors' claims if the shareholder declares his interest in the apartment within the period established by law or demands a refund.

It is from this moment that the situation can develop in several directions:

• or the shareholder will receive a payment from the bank that issued the developer’s guarantee
• or the house will be completed.

Important! It is possible to receive an insurance payment or payment from a bank if such an agreement is still in effect with the insurance company or the bank. As a result of the changes that were made to Law 214, the requirements that relate to these methods of securing the developer’s obligations under an equity participation agreement have already lost force and civil liability insurance is now a voluntary right of the developer.

However, after tightening legislative requirements and introducing amendments to Art. 23.2, defrauded shareholders can at least receive payment from the created compensation fund. Compensation to shareholders for shared construction begins to be carried out in accordance with the requirements of Law N 218-FZ and Decree of the Government of the Russian Federation dated October 7, 2017 N 1233, or activities to complete the construction of a high-rise building will be financed from this fund.

How the calculator works

If a developer violates the conditions that were established in the agreement, he must be punished, and the most effective punishment has always been financial penalties. Nobody likes to part with their money, but we would rather collect a large sum from a bad developer than find ourselves without a roof over our heads, for the construction of which we spent all our saved money.

Surely you already know how to work with the penalty calculator under 214 Federal Law, but there are still some nuances that should be discussed so that later there will be no problems with incorrect calculations:

When can a developer be required to receive a penalty for equity participation?

Some shareholders are concerned not only about how to receive a penalty for late payment under 214-FZ, but also when can this be done? Note that the shareholder can apply for money immediately after the developer has violated the deadlines for transferring the apartment. But, naturally, the longer the delay, the greater the amount of the penalty.

The shareholder can send a letter to the developer with a demand for the collection of a penalty both in the case of already receiving an apartment (signing an act of acceptance of the transfer of the apartment), and in the case when the residential premises have not yet been received under the act. The latter option also applies to cases where the house has not even been put into operation yet and the developer cannot transfer the apartment.

Note! The court may refuse to collect a penalty if the developer proves that the shareholder abused his right and avoided accepting the apartment (clause 25 of the Review of the practice of resolving disputes by courts arising in connection with the participation of citizens in the shared construction of apartment buildings and other real estate (approved by the Presidium Supreme Court of the Russian Federation 04.12.2013)). An exception is situations when the shareholder declares the need to draw up a report on the apartment’s non-compliance with quality standards.

Penalty upon termination of DDU

If one of the parties is not satisfied with the compliance of the terms of the agreement by the other party, the agreement may be terminated. Termination occurs unilaterally or by agreement of both parties. But in any case, a penalty must be paid.

The construction of an individual or apartment building may be significantly delayed compared to the original deadlines. If this happened outside the contractor, the construction customer or the future owner has the right to pay a penalty.

How to calculate the penalty for late delivery of a house

The method for calculating penalties for late delivery of a property depends on who and how acquired the rights to the housing under construction. However, with any calculation, the result depends on the refinancing rate set by the Central Bank of Russia. The rate on the day of expected delivery of the object is taken into account. The rate is published on the Central Bank website and in the press devoted to the country’s economy.

For a legal entity that owns an object, payments are calculated as follows: a percentage of the cost of the apartment equal to the refinancing rate (for example, 10% of 2,000,000 rubles) is divided by 300 and multiplied by the number of overdue days. For example, for late delivery of an apartment for 2 million rubles by 30 days, at a rate of 10%, the developer will have to pay 20 thousand rubles. If the applicant is an individual, payments are doubled.

When paying the cost of an apartment in installments, the calculation is not based on the actual value of the property, but on the basis of the amount paid by you on the date of filing the claim.

The amount of the penalty is determined by legislative acts. Even if the developer included clauses in the agreement with the shareholder that provide for a reduction in the penalty, these clauses of the agreement can be challenged in court.

If calculating the obligations of a construction company turns out to be difficult, the buyer of an apartment can turn to an experienced lawyer for advice. The initial consultation with a specialist is most often free, during which the lawyer will be able to approximately calculate how much the plaintiff should expect.