Q: Does the developer have the right to charge a commission for his consent to the assignment?
A.K.: In terms of the content of such payment, it is illegal, since the fee charged is at least not commensurate with the expenses incurred by the developer in connection with the assignment or transfer of debt. Thus, the developer is trying to limit these assignments. The developer says that if you want to assign it, then pay, say, 50 thousand rubles. The developer hopes to thereby squeeze out speculators who resell assignments of the right of claim to other persons, earning some money from this. The payment is so illegal, Art. 16 of the Law on the Protection of Consumer Rights directly states that such terms of the contract are not permissible.
NTVP "Kedr - Consultant"
LLC "NTVP "Kedr - Consultant" » Services » Legal consultations » Housing: purchase and sale, maintenance, payment » On the assignment of rights of claims under the Agreement for participation in shared construction of an apartment building to another person (in case of incomplete payment of the contract price)
The son of the applicant A-eva entered into an agreement for participation in the shared construction of an apartment building with the ABV Enterprise. The applicant paid RUB 375,000 as an “entrance fee” for her son. Now the son is seriously ill and cannot pay for the construction of the house under the share participation agreement, so the applicant herself wants to contribute the missing amount under this agreement by selling the apartment that she owns.
QUESTION. How not to lose the planned investment in an apartment (for example, if, due to illness, the son disposes of a new apartment and the mother is left homeless). The applicant would like to register ownership of the apartment in her name, but does not know how to do this, in turn, she promises in any case not to leave her son without housing. The applicant considers the option of bequeathing her son’s apartment in her name to be insufficiently reliable. Additional information.
Currently, the son is in the hospital in serious condition, but his legal capacity is not limited. According to the registered agreement for participation in shared construction (clause 8.1.), “assignment by the Participant of the rights of claims under this Agreement to another person is permitted from the moment of its state registration and until the Parties sign the acceptance certificate for the shared construction object after they have paid the price of this agreement to the Developer.” The acceptance and transfer certificate for the shared construction project has not yet been signed. According to clause 8.2 of the Agreement, “If the Participant fails to pay the price of this Agreement to the Developer, the assignment by the Participant of the rights of claims under this Agreement to another person is permitted only after receiving the written consent of the Developer simultaneously with the transfer of the debt to a new participant in shared construction and comes into force after state registration of the agreement in the manner , defined by the current legislation of the Russian Federation."
The applicant claims that she was present with her son during the payment under the shared construction agreement, gave the money to him for subsequent preparation of documents for him, but she does not have documents confirming payment under the agreement. Based on the documents provided, the applicant is the owner of ½ share in the apartment, and the other half of the apartment is owned by her daughter. At the same time, the applicant reported that her daughter had bought a separate apartment at a different address, and therefore her daughter would have no claims to funds from the sale of the apartment’s share. Detailed description of legal qualifications.
Art. 11 of the Federal Law of December 30, 2004 N 214-FZ “On participation in shared construction of apartment buildings and other real estate and on amendments to certain legislative acts of the Russian Federation” (hereinafter referred to as Law N 214-FZ) provides for the possibility of assigning the right of claim under an agreement participation in shared construction. According to Part 1 of this norm, the assignment is carried out in the manner established by the Civil Code of the Russian Federation.
The assignment of rights under an agreement for participation in shared construction is regarded as a transfer of property rights. Such a concession has a number of features provided for by Federal Law No. 214-FZ of December 30, 2004 “On participation in shared-equity construction of apartment buildings and other real estate and on amendments to certain legislative acts of the Russian Federation.”
The law puts forward the following requirements for the assignment of rights. The assignment by a participant in shared construction of the rights of claims under the contract is allowed only after he has paid the contract price or simultaneously with the transfer of the debt to a new participant in shared construction in the manner established by the Civil Code of the Russian Federation ( Part 1 of Article 11 of Law No. 214-FZ ).
Such an assignment is permitted from the moment of state registration of the agreement for participation in shared construction until the parties sign a transfer deed or other document on the transfer of the shared construction object to the participant ( Part 2 of Article 11 of Law No. 214-FZ ).
Since the identity of the participant in shared construction is not of significant importance for the developer, the creditor is not obliged to obtain the developer’s consent to assign rights ( clause 2 of Article 382 of the Civil Code of the Russian Federation ). However, in the event that the original creditor has not contributed in full the funds payable for the construction (creation) of a shared construction project ( Part 1, Article 5 of Law No. 214-FZ ), he can assign his right of claim to the developer only by transfer of rights and obligations under the agreement to a new creditor, which requires the consent of the developer, since such a transaction includes, in addition to the assignment of claims, also the transfer of debt ( clause 1 of Article 391 of the Civil Code of the Russian Federation ).
Without paying the contract price, the requirement to the developer to transfer the apartment cannot be implemented. Therefore, the assignor who has entered into an agreement on the assignment of the right to acquire a shared construction project in violation of the requirement to fully pay the contract price or to transfer the debt to the assignee is liable to the assignee for failure to fulfill his obligation under the assignment agreement due to the inability to transfer the valid right ( Article 390 of the Civil Code of the Russian Federation , resolution of the Federal Antimonopoly Service of the Volga District dated January 19, 2012 N F06-11733/11 ).
Moreover, a paid assignment to a citizen of the rights of claims under an agreement for participation in shared construction, made in violation of Part 1 of Art. 11 of Law N 214-FZ (for example, in the absence of full payment of the contract price on the part of the assignor and transfer of the debt to the assignee), according to some courts, is the basis for bringing the assignor to administrative liability under Part 1 of Art. 14.28 of the Code of Administrative Offenses of the Russian Federation as a person who does not have the status of a developer who attracted funds from a citizen for the construction of a real estate property in violation of the procedure provided for by Law N 214-FZ (Resolution of the Federal Antimonopoly Service of the North Caucasus District dated December 14, 2012 N F08-7304/12). The agreement and (or) assignment of rights of claim under the agreement are subject to state registration ( Article 17 of Law No. 214-FZ ). At the same time, the agreement for participation in shared construction and the agreement on the assignment of rights under this agreement are subject to the general rule of clause 3 of Art. 433 of the Civil Code of the Russian Federation , according to which an agreement subject to state registration is considered concluded from the moment of its registration. An unconcluded agreement does not give rise to rights and obligations; therefore, an agreement on the assignment of rights based on an unregistered agreement for participation in shared construction cannot give rise to the assignee’s rights (claims) in relation to the developer (resolution of the Federal Antimonopoly Service of the Ural District dated 12/04/2012 N Ф09-11083/12 ). The conclusion of an assignment agreement under such circumstances may be the basis for imposing liability on the assignor according to the rules of Art. 390 of the Civil Code of the Russian Federation (resolution of the Twelfth Arbitration Court of Appeal dated November 9, 2012 N 12AP-7339/12).
Similar consequences can result from the assignor’s evasion of actions aimed at state registration of the assignment of claims. In particular, this may be the basis for the assignee to file a claim in court for the return of the assignment executed by him under the contract ( decision of the Investigative Committee for civil cases of the Moscow City Court dated 05.08.2010 N 33-23553 ).
If the assignor evades the actions necessary for state registration of the agreement, the assignee can protect his rights by filing a claim in court to register the assignment transaction (Clause 2 of Article 165 of the Civil Code of the Russian Federation, Resolution of the Eighth Arbitration Court of Appeal dated 08/09/2012 N 08AP- 4469/12 ).
As a general rule, the right of the original creditor passes to the new creditor to the extent and on the conditions that existed at the time of transfer of the right. In particular, the rights ensuring the fulfillment of the obligation, as well as other rights related to the claim, including the right to unpaid interest are transferred to the new creditor ( Article 384 of the Civil Code of the Russian Federation ). This means, in particular, that from the moment the right to claim the transfer of the property to him is transferred to the new creditor under the agreement for participation in shared construction, all rights of the participant in shared construction are also transferred, for example, the right to demand payment of a penalty in case of violation of the deadline for transfer of the shared construction object provided for in the contract ( Part 2 of Article 6 of Law No. 214-FZ, resolution of the Federal Antimonopoly Service of the Far Eastern District dated October 8, 2012 No. F03-3956/12 ).
Law N 214-FZ does not contain special requirements for the form and essential terms of the agreement for the assignment of rights under an agreement for participation in shared construction. Consequently, the general rules on the form of an assignment agreement apply to the form of such an agreement, in other words, according to the general rule, it must be concluded in simple written form ( clause 1 of Article 389 of the Civil Code of the Russian Federation ). Essential for this type of agreement, as for any assignment agreement, is the condition about its subject - the specific obligation from which the assigned right arose ( clause 1 of Article 382, clause 1 of Article 432 of the Civil Code of the Russian Federation ). As law enforcement practice shows, the obligation can be determined by indicating in the assignment agreement the details of the agreement for participation in shared construction, the rights of claim under which are assigned (see, for example, the resolution of the Federal Antimonopoly Service of the West Siberian District dated 01.06.2011 N F04-2139/11 ). LAWYER'S DECISION.
The applicant was asked to conclude an agreement with her son on the assignment of the right of claim.
In accordance with paragraph 1 of Art. 382 of the Civil Code of the Russian Federation, the right (claim) belonging to the creditor on the basis of an obligation may be transferred by him to another person under a transaction (assignment of the claim) or transferred to another person on the basis of law. As a general rule, the developer’s consent to the assignment is not required, nor is the consent of other participants in shared construction. This is confirmed by judicial practice ( Determination of the Supreme Arbitration Court of the Russian Federation dated March 24, 2010 No. VAS-2932/10 in case No. A40-16350/09-101-38 ).
However, in this situation, under the agreement for participation in shared construction, the funds in full amount to RUB 2,275,000.00. not paid, the assignment is made simultaneously with the transfer of the debt, therefore, the applicant’s son can assign to her his right of claim against the developer only by transferring the rights and obligations under the agreement to her as a new creditor, which requires the consent of the developer, since such a transaction includes, in addition to the assignment rights of claim, as well as transfer of debt ( clause 1 of Article 391 of the Civil Code of the Russian Federation ).
An essential condition of the assignment agreement will be information about the obligation from which the right of claim follows ( clause 1 of Article 382 of the Civil Code of the Russian Federation ).
Since the right of claim arises from the agreement for participation in shared construction, all details of the said agreement (number and date of conclusion, as well as other information that allows us to establish the scope of the assigned claims) must be indicated in the assignment agreement.
The assignment of rights of claims under an agreement is subject to state registration ( Article 17 of Law No. 214-FZ ). At the same time, the agreement for participation in shared construction and the agreement on the assignment of rights under this agreement are subject to the general rule of clause 3 of Art. 433 of the Civil Code of the Russian Federation , according to which an agreement subject to state registration is considered concluded from the moment of its registration.
The applicant is recommended to contact the Developer with an explanation of the situation about the son's insolvency and the mother's intentions to pay off the debt for the apartment in order to obtain written permission for the son to assign the right of claim (with the son's presumed consent to the assignment of the right of claim).
The lawyer drafted the text of the “Agreement for the assignment of rights of claim under the agreement for participation in shared construction”
Elena Andreevna Simakova, lawyer at Kama Management Company LLC
What does assignment of rights under DDU mean?
By concluding a share participation agreement under Federal Law 214, the shareholder acquires the right to demand housing from the developer after the house is completed and accepted by the state commission.
At the same time, building a house is a long process; circumstances may arise that will force the shareholder to change the initial plans for the future apartment. In accordance with federal law, in this case he can assign his rights under the DDU to another person. What is assignment under DDU Federal Law 214? In essence, this is a change of participants within the framework of one main agreement. A separate agreement is concluded between the former and the new shareholder, which in legal language is called an assignment. The document records all the main points of this transaction: the price of the assignment, the timing of settlements, the fulfillment of its obligations by the former shareholder, and so on.
This transaction is regulated not only by Federal Law 214, but also by civil law. It should be noted that the former participant transfers only the volume of his rights under the DDU that he owns. After signing the contract, he does not bear any responsibility for the further actions of the developer. The assignment does not in any way affect the terms of the agreement on the basis of which it is made. It only consolidates the change of participants in one specific agreement, the terms of which remain the same.
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