The developer delayed the delivery of the apartment. How to get compensation?

The developer delayed the delivery of the apartment. How to get compensation?

The deadline for the completion of a new building is not the one that appears in the developers’ advertising brochures, but the one stated in the project declaration. If the house was commissioned after this period, you may be entitled to a penalty and other compensation from the developer. This right is given by the law on shareholders (214-FZ).

What you can get

1. Penalty

The amount of the penalty is determined as one three hundredth of the Central Bank refinancing rate of the contract price for each day of delay. It is correct to take as the basis for the calculation the rate that is valid on the last day of the established deadline for the developer to fulfill the obligation to transfer the object.

“For example, the apartment should have been transferred to the shareholder on January 20, 2021, but was transferred on April 20, 2021. In this case, we take as a basis the rate for January 20, 2021 (the last day of the deadline for fulfilling the obligation established by the contract),” explains civil and arbitration lawyer Kirill Aniskin.

If the participant in shared construction is a citizen, the penalty is paid by the developer in double amount.

You can calculate the penalty yourself, or you can use ready-made penalty calculators on the Internet - for example, “Zakonius” or “Dogovor-yurist.ru”.

How to determine delays at home

To correctly calculate the delay time, you need to correctly determine the date from which to count. For example, the last day of the deadline for transferring an apartment may fall on a non-working day, notes lawyer Kirill Aniskin. In this case, according to the expert, Art. 193 of the Civil Code of the Russian Federation, according to which, 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.

“Let’s say the apartment was supposed to be transferred before January 2, 2021 (a non-working day). In this case, the deadline for transferring the apartment is postponed to the first working day - that is, to January 11, 2021, and the delay in transferring the apartment and, as a result, the penalty begins on January 12, 2021,” Aniskin gives an example.

2. Compensation for moral damage

A sufficient condition for collecting compensation for moral damage is the very fact of violation of consumer rights, explains Kirill Aniskin. This fact is the delay in transferring the apartment itself. In this case, it is not necessary to prove your physical or moral suffering.

The court will determine the amount of this compensation regardless of the amount of compensation for property losses. True, he will do this at his own discretion.

Aniskin gives an example: in one court, from the same lawyer (and in general, in almost two identical claims), in one case the court recovered 5 thousand rubles for moral damage, and in the other - 15 thousand rubles. On average, according to judicial practice in Moscow and the Moscow region, the court recovers about 5-10 thousand rubles in compensation for moral damage.

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3. Fine in the amount of 50% of the compensation amount

This fine will be charged to the developer if he refuses to pay the penalty voluntarily and the shareholder will have to go to court. Then he can additionally claim an amount equal to half of the compensation received - we are not talking about the amount that the shareholder himself calculated, but about the amount that the court will ultimately approve.

“If the developer does not pay the shareholder a penalty within 10 days (or another period established by the agreement for participation in shared construction), then this is grounds for collecting a fine, regardless of whether such a claim was made in the claim or not,” draws attention Kirill Aniskin.

4. Legal costs and attorney fees

If the shareholder had to go to court, he can recover legal costs from the developer. For example, payment of state duty (it can be calculated using a calculator on the Supreme Court website). You can also compensate for the costs of a lawyer.

How to get compensation

The procedure for collecting compensation from the developer for postponing the completion date of the house is prescribed in the same law on shareholders.

Step 1: pre-trial claim

First, the equity holder needs to send a written claim to the developer. It is best to send a registered letter by Russian Post with a list of the attachment in Form 107 and notification of receipt. In this case, you will have proof of the fact of sending.

In the letter you need to describe all your claims, provide links to legal norms, indicate the amount of the penalty and account details where you can transfer the money. You can also offer to solve the problem peacefully.

Not all developers agree to pay buyers a penalty out of court. But they may offer you some kind of compromise option: a discount on a storage room or parking space, assistance in registering property rights or with repair and finishing work. Another option is to extend the interest-free installment plan, if available. Everything will depend on the developer, his imagination and desire to compromise.

But usually developers are reluctant to respond to letters from shareholders. Therefore, you will probably have to go to court.

Step 2: Lawsuit

As a rule, the court sides with the plaintiffs. True, the amount of the penalty can be reduced several times (according to Article 333 of the Civil Code). The courts take into account the fact that the developer did not hide, sought to fulfill his obligations and ultimately completed the house, which gives the right to reduce the fine. It is realistic to receive a full penalty only in the case of outright fraud in the construction and sale of housing.

To go to court, you must write a statement of claim and pay a state fee if the amount of the claim exceeds 1 million rubles. The application must indicate the details of the court, the plaintiff, the defendant, describe in detail the circumstances of the case with references to the law, indicate and justify the amount of the claim.

At the end of the application, a list of all attached documents is written down: • a copy of the equity participation agreement; • a copy of the apartment acceptance certificate; • extract from the Unified State Register for the apartment; • a copy of the pre-trial settlement claim; • loan agreement; • payment documents and others.

Example of a claim

You can bring the documents in person to the court office or send them by mail (again, you need to make an inventory of the attachments in Form 107 and send the package with a receipt). The case must be accepted for proceedings within five days.

Which court should I go to?

If the amount of the claim is more than 50 thousand rubles, then such cases of violation of the rights of shareholders are considered by district courts of general jurisdiction. If it is less, this is the competence of the magistrate. The plaintiff can choose which court to apply to: • at the address of his permanent residence or temporary residence (provided that there is registration); • at the construction site; • at the developer's registered address.

Can the court refuse to collect a penalty?

Maybe. If the developer proves that the shareholder intentionally avoided signing the transfer deed or other document on the transfer of the apartment.

Also, as a basis for refusal to collect a penalty, in judicial practice there are cases when the shareholder does not fulfill its obligations under the contract in terms of payment of the price of the agreement for participation in shared construction. But this is rather an exception to the rule, concludes lawyer Kirill Aniskin.

Personal experience: I collected compensation from the developer

Shareholders often refuse the services of experienced lawyers. We found a hero who independently received compensation from the developer.

Nikolay B.

Moscow region, Krasnogorsk

“I received compensation myself for missing the deadline for commissioning the house. To do this, I had to independently study the entire procedure: what you can apply for, what documents and how to submit.

At first, I tried to reach an agreement with the developer without going to court - I sent him letters about pre-trial settlement (I found a sample on the Internet), and I calculated the amount of the penalty myself. But I was a little mistaken and did not take into account the claim for compensation for losses - payment of rent for an unplanned rental of housing: expenses for an apartment that I had to rent while the developer was completing the construction of the house. It was possible to reimburse 1 thousand rubles for each day of delay.

For 75 days of delay for my one-room apartment, I calculated about 125 thousand rubles in penalties, plus a fine of 50% of the penalty amount and moral damages in the amount of 1 thousand rubles for each day of delay. In total, it came out to about 250 thousand rubles.

At first, I tried to resolve the issue with the developer peacefully: I was ready to accept a 100% discount on the purchase of a storage room in my house (the storage rooms cost about 186 thousand rubles). But the developer refused to pay the penalty, and as compensation offered a 5% discount on the same storage room. Such conditions, of course, did not suit me. I had to go to court. At the hearing itself, the judge read out the documents very quickly, I did not understand everything and regretted that I had not contacted a lawyer. I was asked just one question, like: “Do you confirm your claims against the developer?” I replied that, of course, yes.

The court reduced the amount of the penalty by almost half. The court's decision came into force a month later - it and the writ of execution had to be taken from the court independently, then an application for collection had to be written to the bank where the developer had an account. All this paperwork was time-consuming; I had to stand in lines at almost every stage. But I managed to save money on a lawyer.”

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Our other heroine immediately turned to a lawyer.

Elena

Moscow region, Vidnoye

“I immediately decided that I would contact a lawyer. I haven’t even tried to do anything on my own. Fortunately, there is a large choice of lawyers in Moscow - both lawyers with private practice and law agencies. Of course, I tried to find the most favorable conditions and so that the person would inspire trust.

The average cost of services was about 15 thousand rubles. Of course, lawyers also offered me their services for 2 thousand rubles, but the extremely low price confused me a little. In addition, the conditions are not transparent everywhere.

For example, one lawyer worked for 10% of the value of the awarded compensation, payment after the money arrives on the card. It turns out that if the compensation amount is 100 thousand rubles, I will pay 10 thousand rubles for the lawyer’s services. And even after the job was done, this option suited me. But when I started reading the contract that the lawyer offered to sign, I saw a small clause (about which the lawyer remained silent) “... but not less than 35 thousand rubles”... What if I was awarded compensation of 50 thousand? Will I give almost everything for a lawyer? This pricing was not for me.

I turned to a lawyer with more transparent conditions (the cost of services is 18 thousand rubles, 10 thousand - immediately, 8 thousand - after we receive a penalty). What did I get for this money? Peace of mind, a lot of free time and a competent lawyer on all family issues. We have met with the lawyer twice so far: to sign an agreement for his services and to hand over a power of attorney and documents for the court. He took care of everything else. We have not yet received the compensation itself, but a trial date has already been set. Moreover, I don’t have to be present at the trial itself - the lawyer has a power of attorney.”

ASK:

1. Collect from LLC "S." in favor of E.A.A. cash in the amount of RUB 930,976. as a penalty for late transfer of the apartment.
2. Collect from LLC "S." in favor of E.A.A. funds in the amount of 100,000 rubles. as compensation for the representative's services.
3. Collect from LLC "S." in favor of E.A.A. funds in the amount of 200,000 rubles. as compensation for moral damage.
4. Collect from LLC "S." in favor of the state, a state fee calculated based on the satisfied part of the claims
5. Please notify the legal bureau “Moscow Legal” of the date and time of the court hearing, Moscow, st. Maroseyka, 2/15, .

Application:

1. A copy of the statement of claim (3 copies on 3 sheets);
2. Calculation of claims (4 copies per 1 sheet);
3. Copy of the Agreement on participation in shared construction of a residential building dated 04/21/20__ between G. LLC and LLC "S." (4 copies per 27 sheets);
4. Copy of the Agreement on assignment of rights dated 04/21/20__ dated 02/13/20__ between LLC “N.” and E.A.A. (4 copies per 4 sheets);
5. A copy of the act of execution of the Agreement dated March 19, 20__ (4 copies per sheet);
6. A copy of the payment order for payment of the contract for 20__,000 rubles. (4 copies per 1 sheet);
7. A copy of the application to LLC "S." dated 04/28/20__ (4 copies per 2 sheets);
8. A copy of the Respondent’s response to the claim dated 12/10/20__ (4 copies on 2 pages);
9. A copy of the claim addressed to the Defendant dated 06/09/20__ (4 copies on 2 pages);
10. A copy of the response to the claim (4 copies per sheet);
11. A copy of the agreement on the provision of legal assistance (4 copies on 3 sheets);
12. A copy of the receipt for receipt of funds (4 copies per sheet);
13. A copy of the power of attorney for the representative (1 copy per 1 page);
14. Extract from the Unified State Register of Legal Entities (7 pages) (https://msk-legal.ru)

Representative of E.A.A. by proxy_______________________________________________________/Kuryanov A.A./ 09/23/20__

Calculation of the Developer's penalty for late transfer of an apartment under the DDU

The amount of the penalty provided by law for the Developer for late transfer of an apartment under the DDU can be calculated using some online calculator, but it is more reliable and accurate to calculate it yourself using a regular calculator. There is nothing difficult about this for those who are familiar with arithmetic at the elementary school level.

The amount of the penalty under the DDU is determined based on the current refinancing rate of the Central Bank of the Russian Federation, and is calculated for each day of delay until the obligations are fulfilled or until the shareholder goes to court.