Agreement on shared participation in construction in 2021

What is an equity participation agreement?

An equity participation agreement (EPA) is concluded between a development company and a person who buys housing from it in a house under construction. The buyer, together with his future neighbors, invests money in shares in the construction of a high-rise building. For this, upon completion of the work, the developer will have to transfer a predetermined apartment to each shareholder.

The DDU is needed because the developer has nothing to sell yet - he is only building his product. A regular purchase and sale agreement does not take into account all the nuances.

The DDU states when the developer is obliged to hand over the house. If he violates his obligations, shareholders will have the right to a penalty. The contract also describes exactly what the currently non-existent apartment will be like.

The period during which the customer is obliged to transfer the construction project to the participant in shared construction (hereinafter referred to as the shareholder) is established by the contract and must be the same for all shareholders. According to Article 6 of Law No. 214-FZ, such a transfer must be carried out no later than the period stipulated by the contract. An exception is the case provided for in paragraph 3 of Article 6 of Law N 214-FZ, which establishes that if the construction of a real estate property cannot be completed within the period stipulated by the contract, the developer is obliged no later than two months before the expiration of this period to send the relevant information to the shareholder and a proposal to amend the contract.

If the deadline for transfer of the real estate property is violated, the developer pays the shareholder a penalty (penalty) in the amount of one three hundredth of the refinancing rate of the Central Bank of the Russian Federation in effect on the day the obligation is fulfilled, of the contract price for each day of delay. The amount of the penalty (penalty) paid is doubled if the shareholder is a citizen. In the event of a violation of the contractual deadline for transferring a shared construction project to a participant in shared construction as a result of the participant in shared construction evading signing a transfer deed or other document on the transfer of a shared construction project, the developer is exempt from paying a penalty (penalty) to the participant in shared construction, provided that the developer properly fulfills his obligations under such agreement. This rule is established by paragraph 2 of Article 6 of Law No. 214-FZ.

There are cases when the quality of a shared construction project built by a developer does not comply with the terms of the contract, the requirements of technical regulations, design documentation and urban planning regulations, as well as other mandatory requirements.

If violations committed make the property unsuitable for the use specified in the contract, the shareholder, guided by Article 7 of Law No. 214-FZ, has the right, at his own discretion, to demand from the developer:

- elimination of deficiencies free of charge within a reasonable time;

— proportionate reduction in the contract price;

- reimbursement of expenses for eliminating deficiencies.

The shareholder has the right to refuse to fulfill the contract unilaterally if there are significant violations of the requirements for the quality of the property, as well as if the developer does not eliminate the identified deficiencies within a reasonable time. In this case, the shareholder has the right to demand from the developer the return of funds and payment of interest.

Please note that the terms of the agreement to release the developer from liability for defects of the property in accordance with paragraph 4 of Article 7 of Law N 214-FZ are void.

The contract must establish a warranty period for the shared construction project, which cannot be less than 5 years. The calculation of the warranty period begins from the day the property is transferred to the shareholder, unless otherwise provided by the agreement.

By virtue of paragraph 7 of Article 7 of Law N 214-FZ, the developer is not responsible for shortcomings (defects) of a shared construction project discovered during the warranty period if he proves that they occurred due to normal wear and tear of such an object or its constituent finishing elements and systems engineering and technical support, structural elements, products, violation of the requirements of technical regulations, urban planning regulations, other mandatory requirements for the process of operation of a shared construction project or its finishing elements, engineering and technical support systems, structural elements, products, or due to improper repairs thereof carried out by the participant in shared construction or by third parties attracted by him, as well as if the shortcomings (defects) of the shared construction object arose as a result of violations of the rules and conditions for the effective and safe use of the shared construction object included in the shared construction object provided to the participant in the instructions for operating the shared construction object. composition of finishing elements, engineering support systems, structural elements, products.

Thus, the current legislation, within the warranty period, establishes a presumption of guilt of the developer for the shortcomings (defects) of the shared construction project, and therefore the burden of proving the circumstances specified in the above norm lies with the developer, as stated in the Resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated 17.01. 2013 in case No. A82-14045/2010.

Note! The warranty period for technological and engineering equipment included in the shared construction project transferred to participants in shared construction is established by the contract and cannot be less than three years. The specified warranty period is calculated from the date of signing the first transfer deed or other document on the transfer of a shared construction project (clause 5.1 of Article 7 of Law No. 214-FZ).

The transfer of a shared construction object by the developer and its acceptance by a participant in shared construction on the basis of Article 8 of Law N 214-FZ is carried out according to a transfer deed signed by the parties or another document on the transfer of the shared construction object, which indicates the date of transfer, the main characteristics of the residential premises or non-residential premises that are object of shared construction, as well as other information at the discretion of the parties.

A permit to put a facility into operation is a document that certifies the completion of construction, reconstruction of a capital construction facility in full in accordance with the construction permit, design documentation, as well as the compliance of the constructed, reconstructed capital construction facility with the requirements for construction, reconstruction of a capital construction facility, established on the date of issue of the urban planning plan of the land plot submitted for obtaining a construction permit, the permitted use of the land plot or in the case of construction, reconstruction of a linear object, the territory planning project and the territory surveying project, the territory planning project in the case of issuing a permit to put into operation a linear object, for the placement of which does not require the formation of a land plot, as well as restrictions established in accordance with land and other legislation of the Russian Federation, as indicated by paragraph 1 of Article 55 of the Civil Code of the Russian Federation. It follows from this that permission to put an object into operation confirms the suitability of the construction project for use, the possibility of transferring the object in proper quality to participants in agreements for participation in shared construction, as stated in the Resolution of the Federal Antimonopoly Service of the West Siberian District dated September 29, 2010 in case No. A46 -6232/2010.

The developer is obliged to send a message to the shareholder about the completion of construction of the property and about the readiness of the property for transfer, as well as to warn the shareholder about the need to accept the property.

According to paragraph 4 of Article 8 of Law N 214-FZ, the message should be sent by registered mail with a list of the contents and a return receipt to the postal address specified by the shareholder or delivered to the shareholder personally against signature within the following time limits:

- if the contract provides for a deadline for transferring the object - no less than 1 month before such deadline;

- if the contract provides for a start date for the transfer and acceptance of the object - no less than 14 days before this date.

The shareholder, who has received a message from the developer about the completion of construction and the readiness of the object for transfer, is obliged to begin accepting it within the period stipulated by the agreement, or if such a period is not established by the agreement, then within 7 working days from the date of receipt of the message from the developer.

If the shareholder evades or refuses to accept the shared construction project, the developer, after 2 months from the date specified in the agreement for transferring the object to the shareholder, has the right to draw up a unilateral act or other document on the transfer of the shared construction project.

The cases and procedure for terminating a contract for participation in shared construction, as well as the consequences of terminating the contract, are provided for in Article 9 of Law No. 214-FZ.

Registration of a share participation agreement

Another advantage of DDU is that it protects against double sales. Since the house is still under construction, a person cannot immediately move into the purchased apartment. In the meantime, it exists only on paper; theoretically, it can be sold a second or third time.

DDU protects against this. The agreement must be registered with Rosreestr. And if the developer brings another document for the same apartment, the contract will not be registered, that is, it will not be possible to complete a dubious, to put it mildly, deal.

Below we will tell you how the registration process itself goes.

Preparation of documents

According to the head of the legal department of the Construction Holding Company, Olga Tataurova, the package of documents for the DDU depends on the specific situation. In any case, you will need a passport, but here are the following options:

if the shareholder is married and enters into an agreement for himself, then the consent of the spouse;
if two spouses enter into a marriage certificate or marriage contract;
if children are involved in the purchase, then the children’s birth certificates (passports);
if maternity capital is used, then a certificate for inclusion in the DDU, the conclusion of the guardianship authority;
if social benefits, then certificates or other documents depending on the program.

Signing an agreement with the developer

First of all, ask the developer for a project of a preschool building. This is a document that the company itself offers its customers to sign. Already from this preliminary version, the article can make a lot clear. The DDU, even its draft, must include the following points:

building address of the house;
cadastral number of the site on which construction is taking place;
floor and number of the apartment you are buying;
total housing area, layout, ceiling height;
date of completion of the house.

If they are not there, or they raise questions and misunderstandings in you, this is a reason to be wary. If everything is in order and you are ready to buy an apartment in this building, draw up this agreement with the developer’s manager. It is not necessary to sign it immediately. In general, you don’t need to sign anything without reading it. Moreover, a document about probably the main purchase in your life. You can take a couple of days to thoroughly explore everything. Compare the final document with the draft. It would be a good idea to show it to a third-party lawyer. And most importantly, remember that the contract that the manager of the development company puts before you is not some kind of indisputable axiom. If you don't like something, tell the manager about it. You are not required to agree to the seller's terms.

Suggest your own wording if you are not satisfied with the ready-made ones. It is better to work them out with a lawyer.

Often the stumbling block here is the issue of compensation. It is not always possible to build exactly what was sold at the boiler stage. This does not mean that the house is of poor quality, it’s just that the wall was placed almost there, and now you have one apartment larger and another smaller. If you accidentally find yourself in possession of a couple of extra squares, the developer will certainly want to get money from you for them - and will include a corresponding clause in the contract. But if your apartment turns out to be slightly smaller than planned, the builders must pay - return the money for the lost space. Developer managers sometimes “forget” about this when drawing up an agreement.

— As a rule, the signing of the DDU takes place at the developer’s office, and immediately after that the company’s employees submit it for registration with Rosreestr. To do this, the future shareholder will be asked to issue a power of attorney to submit documents. It is important here that the power of attorney does not include the right to alienate real estate,” warns director Svetlana Pankova.

Registration of the agreement in Rosreestr

Large developers often take on this stage themselves. The shareholder will be asked for a power of attorney to register the DDU (it must be issued in advance by a notary). After 5 days, the developer’s representative will receive the finished DDU, and the shareholder will be given a copy of it.

But again, it is your right whether to agree to this option or not. If you have time and don’t want unnecessary worries, you can do everything yourself. To do this, the shareholder, together with the developer’s representative, goes to the MFC or Rosreestr branch.

There they will check to see if this apartment already has an owner, and if everything is in order, the contract will be registered. After this, you are officially the owner of the property, even if it is still at the excavation stage.

You need to pay a fee to register a DDU. For individuals it is 500 rubles.

Features of registration of shareholders

If the DDU is fully executed and the shareholder has registered his rights to the property with Rosreestr, then there are no problems, and the registration procedure is similar to that described above.

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The agreement specifies the date after which the shareholder must, having accepted the apartment, go to register his rights to it. However, failure to comply with this period is the rule rather than the exception. The problem is aggravated by the fact that many citizens, in order to buy an apartment in a new building, sell their previous housing and, accordingly, check out of it. For this reason, shareholders solve their problem by temporarily registering with friends or relatives.

But if the temporary registration is coming to an end and the house has not yet been completed, the question arises about the possibility of registration in an unfinished apartment.

From the point of view of formal compliance with laws, this is impossible. In order to have the right to register in your apartment or give consent to the registration of other people in it, you must first register your rights to it in the Unified State Register of Real Estate. This requires the commissioning of an apartment building. The decision on this is made by the state commission after the complete completion of the house and the elimination of all identified deficiencies. Sometimes no one can tell you the exact date when it will be possible to register the rights to an apartment. That is, in this case it is impossible to register under the DDU, and the problem must be solved in other ways.

Things are somewhat simpler if the house has already been accepted, but some problems have arisen with the registration of ownership. In this case, you can register in the living space temporarily. Such a registration removes its holder from responsibility for violating the passport regime, allows him to look for work, send his children to school, use the services of a clinic, etc. To obtain it, you first need to obtain permission from the developer to live in the house. With this paper you go to the Main Department of Migration of the Ministry of Internal Affairs of the Russian Federation or the MFC and submit an application for temporary registration. In addition to the permit you must attach:

DDU;
documents confirming the commissioning of the house;
statement.

In about three days you will be registered.

Rules for registration in the Russian Federation

The institution of registration in Russia has long been abolished, and it has been replaced by the institution of registration. However, citizens did not notice significant differences in them; both words are used as synonyms.

Every citizen must have registration at the place of residence, and during long trips to other places, go through this procedure at the place of stay.

To obtain a permanent residence permit, you should contact the Migration Department of the Ministry of Internal Affairs of Russia or the Multifunctional Center (MFC) within 7 days from the date of arrival at your new place of residence. For registration at the place of stay, this period increases to 90 days.

The following must be submitted to the relevant authorities:

identification document;
documents giving you the right to reside in this residential premises;
departure slip if you canceled your previous registration;
statement.

Note!
In general, the process rarely takes more than 3 days and does not cause any problems.
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Various electronic services are actively developing, for example, the government services website allows you to submit documents without leaving your home and appear at the Main Migration Department of the Ministry of Internal Affairs of the Russian Federation to obtain a residence permit. However, everything is so simple only for apartments purchased in the usual ways, for example, under a purchase and sale agreement. If the living space is purchased under the DDU, this process becomes more complicated.