Assignment agreement for DDU in construction: contents
The agreement for the assignment of the right of claim (assignment) under an equity participation agreement in construction is one of the transactions that changes one of the parties to the obligation and contains the following mandatory conditions:
- Name of the parties.
- Details of the equity participation agreement under which the assignment is made.
- Cost of assignment of rights, payment procedure.
- Information about the rights and obligations of the parties.
- Liability for violation of the terms of the contract.
The essence of this transaction is that all the rights and obligations that the previous shareholder had under the equity participation agreement are transferred to the new shareholder - Art. 384 Civil Code of the Russian Federation.
Responsibility of the developer for violating the terms of the contract - explanations from law enforcement officers in the Moscow region
Just a few years ago, the situation in the real estate market was such that defrauded investors could not even return their own funds, let alone achieve payment of the penalty. But today the law is on the side of participants in shared construction. The Moscow Region Prosecutor's Office clarified when a developer can be held accountable for violating the deadline for handing over a construction project. Read about what responsibility lies with developers and what penalties can be demanded from them in case of violation of the terms of the contract in the material of the mosreg.ru portal.
Contract and construction terms
Scheme
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The developer must transfer the shared construction project to the shareholder no later than the period specified in the contract. This is indicated in Part 1 of Art. 6 of the Federal Law of December 30, 2004 No. 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.”
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Compensation for failure to transfer an object on time
Source: Photobank of the Moscow region
If the developer has violated the deadlines stipulated in the contract for transferring the shared construction project to the participant in shared construction, he pays the shareholder a 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 of fulfillment of the obligation, from the contract price for each day of delay.
A participant in shared construction - a citizen - shall pay the prescribed penalty in double amount.
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Penalty for eliminating defects of the object
Banknotes of Russian rubles.
Source: Photobank of the Moscow region
If the established deadline for the transfer of a shared construction project is violated due to the elimination of shortcomings identified by the shareholder, according to the Supreme Court of the Russian Federation, recovery of a penalty from the developer is possible.
The developer is not released from liability for violating the deadlines for the transfer of a shared construction project due to the elimination of defects in the facility. The Supreme Court of the Russian Federation does not recognize the conclusions of lower courts that the developer is not at fault in such cases. According to the law, the developer is obliged to prove the absence of guilt if he violates the deadline for transferring the apartment to the consumer due to the elimination of defects in the apartment identified and not disputed by the developer, as a result of which the shared construction project did not comply with the terms of the contract and technical documentation.
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Alisa Irisova
Agreement for the assignment of the right to claim under a share participation agreement in construction: features
The procedure for concluding an agreement for the assignment of the right of claim (cession) under an agreement of shared participation in construction is regulated by Art. 11 of Law No. 214-FZ. Clauses 1 and 2 of Art. 11 impose the following mandatory requirements for drawing up an agreement for the assignment of the right of claim (cession) under an agreement of shared participation in construction:
- An assignment is permitted only if the shareholder pays the contract price or only simultaneously with the transfer of the debt to a new shareholder.
- An assignment is possible only during the period from the date of registration of the share participation agreement and until the date of signing the transfer and acceptance certificate of the apartment or other premises to be transferred under the agreement.
IMPORTANT: Just like the equity participation agreement itself, the assignment of the right of claim under it is subject to mandatory state registration and comes into force from the date of such registration.
Supreme Court of the Russian Federation. Important information about equity participation agreements. Fines, terms, assignment
Interesting positions of the courts regarding shared construction.
Deadline for transferring apartments under DDU
Problem
The developer received permission to put the house into operation later than the completion date stipulated in the contract.
When does the apartment transfer period begin?
Practice
Regarding the courts of general jurisdiction, the position of the Supreme Court was developed back in 2021. The Collegium for Civil Cases indicated (Definition of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated 09/05/2017 N 78-KG17-67 Requirement: On the collection of penalties under an agreement for participation in shared construction, interest for the use of other people’s funds, compensation for moral damages and a fine. Circumstances: According to the plaintiff, the defendant violated the deadline for transferring the apartment to him as a participant in shared construction. Decision: The case was sent for a new appeal hearing, since the courts, while refusing to satisfy the demand, did not take into account that from the literal interpretation of the agreement concluded by the parties, the defendant undertook to transfer the apartment to the plaintiff no later than six months from the date of receipt of permission to put the house into operation, the conclusions of the courts about the absence of a violation by the defendant of the period stipulated by the contract cannot be recognized as valid...) the period for the transfer of apartments cannot be considered in isolation from the construction period.
If the transfer of apartments depends solely on when the occupancy permit is received, the developer is not actually bound by any deadlines. Such uncertainty is unacceptable. It infringes on the rights of shareholders.
In 2021, the collegium for civil cases confirmed (Definition of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated 06/05/2018 N 4-КГ18-38 Requirement: On the collection of a penalty under an agreement for participation in the shared construction of an apartment building, compensation for moral damage. Circumstances: According to According to the plaintiff, the defendant did not properly fulfill his obligations under the disputed agreement, the shared construction project was transferred to the plaintiff in violation of the deadline. Decision: The case was sent for a new appeal hearing, since the court did not take into account the fact that late receipt of permission to put the house into operation is not a basis to release the defendant from liability.) his position.
There was no position of the Supreme Court of the Russian Federation regarding the arbitration courts. Some of the lower courts were guided by the position of the panel in civil cases (Resolution of the Arbitration Court of the Moscow District of September 25, 2019 N F05-15623/2019 in case N A40-266234/2018 Requirement: On the collection of penalties under an agreement for participation in shared construction of an apartment building and a fine. Circumstances: The plaintiff refers to the delay in the transfer of the shared construction project by the defendant. Decision: The claim is satisfied, since the defendant did not provide evidence of the transfer of the construction project within the time period established by the contract.).
The opposite position was also encountered. The deadline for the transfer of apartments must be counted from the actual receipt of the permit, even if it was received later than the construction completion date specified in the contract (Resolution of the Arbitration Court of the Far Eastern District dated December 14, 2017 N F03-4593/2017 in case N A59-601/2017 Requirement: On recovery penalties for violating the deadline for transferring the apartment, a fine for failure to voluntarily satisfy the requirements under the agreement for participation in shared construction. Circumstances: The developer violated the deadline for transferring the apartment to the participant in shared construction, refused to satisfy the claim demanding payment of the penalty and fine, citing force majeure circumstances, the participant in shared construction transferred the right to claim the debt to the company, whose claim the developer did not satisfy. Decision: The claim was rejected, since the contract does not provide for liability for failure to obtain permission to put the facility into operation; after the facility is put into operation...)).
Position of the Collegium on Economic Disputes
In the determinations published last week, the economic disputes panel took the same approach as the civil cases panel.
Noted (Definition of the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation dated February 13, 2020 in case No. 305-ES19-20142, A40-290938/2018 Requirement: For the collection of a penalty under an agreement for participation in the shared construction of an apartment building and a fine. Circumstances: Participant of the shared construction construction fulfilled the obligation to pay for the shared construction project in the manner and within the terms stipulated by the contract. Decision: Refused in part, since, in contrast to the general rules for calculating and collecting penalties (fines, penalties), the right to award provided for in paragraph 6 of Article 13 of the Law on Protection consumer rights, the fine arises not at the moment of violation by the manufacturer of the obligation to voluntarily satisfy the legal demands of the consumer, but at the moment the court satisfies the consumer’s demands and the award..) that the moment of putting the house into operation depends on the actions of the developer, therefore the period for commissioning the apartment should be limited by inevitable circumstances. This circumstance is the construction completion period stipulated by the contract.
Assignment of consumer fines under DDU
In addition to the penalty for late transfer of the property, the equity holder has the right to collect a consumer fine in the amount of 50% of the awarded penalty. Is it possible to assign the right to claim such a fine to a third party?
The tendency to limit the activities of professional buyers of claims arising from consumer disputes appeared at the end of 2021, when a resolution of the Plenum of the Russian Armed Forces on compulsory motor liability insurance was adopted.
The Plenum indicated that the right to receive a consumer fine cannot be ceded (Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 26, 2017 N 58 “On the application by courts of the legislation on compulsory civil liability insurance of vehicle owners”). The consumer can only assign the awarded penalty. Of course, in such a situation the meaning of the concession is lost.
The fact that this position can be applied to other legal relations was indicated in May last year by the panel for civil cases. (Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated May 28, 2019 N 5-КГ19-52 Requirement: For recovery: 1 ) Insurance compensation, interest, compensation for moral damage; 2) The fine provided for in paragraph 6 of Art. 13 of the Law on Protection of Consumer Rights. Circumstances: As a result of an accident, the policyholder received bodily injuries that caused his disability. Decision: 1) The claim is partially satisfied, since the fact of the occurrence of an insured event has been established, entailing the obligation of the insurer to make payments to the insured under insurance programs, the amount of which is determined taking into account the amount ceded by the insured as the assignor to the assignee; 2) The claim was partially denied, since the assignee is a consumer of the service under a personal contract..)
Currently, the Collegium for Economic Disputes has taken a similar position on the DDU. This eliminates any discrepancies in practice in the future. (Determination of the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation dated February 13, 2020 in case No. 305-ES19-20142, A40-290938/2018)
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Assignment agreement for DDU in construction: procedure for drawing up and signing
The agreement for the assignment of the right of claim (cession) under a share participation agreement in construction must be drawn up without errors and in a legally correct manner. Otherwise, registration of such an agreement may be refused. Therefore, it is not recommended to use a standard form here.
As a rule, such an agreement is made by the developers themselves. The agreement is drawn up in the number of copies corresponding to the number of parties, plus one copy is printed for the registration authority. Due to the fact that the agreement is subject to registration, there is no need to engage a notary to certify the signatures of the parties to the agreement.
IMPORTANT: if an assignment is made without transfer of debt, it is necessary that the previous shareholder provide a certificate from the developer stating that he has made all payments in full.
Such a certificate is a mandatory document for registration of the agreement - sub. 2 clause 10 art. 48 of Law No. 218-FZ “On State Registration of Real Estate”.
