Pledge of claims under a share participation agreement

What laws should you follow?

It is quite simple to imagine some specific property as collateral.
Nevertheless, not only things, but also rights, including claims, can be the object that is pledged. The main legislative acts that are intended to regulate the registration of a pledge of claims under an equity participation agreement include:

Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation), paragraph 3 of Ch. 23, which presents the general provisions applicable to the pledge, as well as the special rule enshrined in Art. 358.1, which is directly devoted to the pledge of obligatory rights;
Law “On Mortgage (Pledge of Real Estate)” dated July 16, 1998 No. 102-FZ (hereinafter referred to as Law No. 102-FZ);
Law “On participation in shared construction of apartment buildings and other real estate and on amendments to certain legislative acts of the Russian Federation” dated December 30, 2004 No. 214-FZ (hereinafter referred to as Law No. 214-FZ);
Law “On State Registration of Real Estate” dated July 13, 2015 No. 218-FZ (hereinafter referred to as Law No. 218-FZ).

For general information about collateral, we recommend that you read the article Pledge as a way to ensure the fulfillment of obligations.

Methods of ensuring the fulfillment of obligations under an agreement for participation in shared construction

Federal Law No. 214-FZ of December 30, 2004 “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 Federal Law No. 214-FZ) provides for 2 ways to ensure the fulfillment of obligations under agreement for participation in shared construction: pledge and civil liability insurance of the developer.

The pledge for all agreements for participation in shared construction on the basis of one construction permit ensures the fulfillment of the following obligations of the developer:

1) return of funds contributed by a participant in shared construction, in cases provided for by Federal Law No. 214FZ and (or) the agreement;

2) payment to the construction participant of funds due to him in compensation for losses and (or) as a penalty (fine, penalty) due to non-fulfillment, delay in fulfillment or other improper fulfillment of the obligation to transfer the shared construction object, and other due to him in accordance with the agreement and (or) federal monetary laws.

Only from the moment of state registration of the agreement, the participants in shared construction are considered to have the shared construction objects provided for the construction of an apartment building, the land plot and the real estate objects being built on it as collateral.

These rules do not apply when the developer attracts funds from participants in shared construction for construction by placing such funds in escrow accounts.

An object of shared construction is considered to be pledged to the construction participant from the date the developer receives permission to put into operation an apartment building until the date of transfer of the object to the participant of shared construction. At the same time, premises that are part of the real estate and are not objects of shared construction are not considered to be pledged from the date the developer receives permission.

The developer is obliged to register ownership of an unfinished construction project when grounds arise for foreclosure on the collateral. Such an object is considered to be pledged to the construction participants from the moment of state registration of the developer’s ownership rights.

If the developer evades state registration of ownership of an unfinished construction project, then state registration of ownership of an unfinished construction project may be carried out on the basis of a court decision.

It should be noted that in accordance with the provisions of Art. 342 of the Civil Code of the Russian Federation, pledged property can be pledged several times.

Thus, the developer’s attraction of funds from participants in shared construction is permitted if the developer’s property is the subject of collateral with a bank, subject to the conditions stipulated by law. Property can be pledged by the developer both before concluding an equity participation agreement and after concluding such an agreement.

The pledge is retained until the construction project is transferred to the participant in shared construction.

The developer has the right to attract funds from participants in shared construction that, together with loans received from banks, do not exceed the cost of construction specified in the project declaration in the following cases:

if the property is pledged as security for the developer’s obligations under a targeted loan for the construction of an apartment building before the developer enters into an agreement with the first participant in shared construction;
transferring property as collateral to the bank to ensure the return of a targeted loan provided by the bank to the developer for the construction of an apartment building, which includes shared construction projects, subject to obtaining consent from the bank to satisfy its claims at the expense of the pledged property in accordance with the requirements of Federal Law No. 214- Federal Law.

From the moment of transfer of the shared construction object, the right of pledge is terminated on the shared construction object, the pledge of a land plot owned by the developer, or the pledge of the right to lease or the right to sublease a land plot.

Insurance of the risk of liability for breach of contract is allowed by Federal Law No. 214-FZ and is carried out on the basis of agreements concluded by the developer with the insurance organization.

Insurance is carried out by concluding an insurance contract between the insurance company and the developer, under the terms of which the object of insurance is the property interests of the developer associated with the risk of its liability to a specific construction participant in connection with the fulfillment of its obligations to transfer residential premises.

It should be noted that insurance against the risk of liability for failure to fulfill or improper fulfillment of obligations to transfer a shared construction project to a participant in shared construction under an agreement is a right, not an obligation, of the developer.

NATALIA USTIMENKO

, SENIOR PROSECUTOR OF THE DEPARTMENT FOR SUPERVISION OF THE EXECUTION OF LAWS IN THE FIELD OF ECONOMY AND NATURE PROTECTION OF THE PROSECUTOR'S OFFICE OF THE KHABAROVSK REGION

Source of publication: information monthly “The Right Decision” issue No. 05 (211) release date of 06/04/2020.

The article was posted on the basis of an agreement dated October 20, 2016, concluded with the founder and publisher of the information monthly “Vernoe Reshenie” LLC “.

Subject of the pledge agreement for the rights of claim of a participant in shared construction

Before talking about the pledge agreement for the rights of claim under an equity participation agreement , you should determine its subject. As is known, from the agreement on shared participation follows the right of its participant to demand that the developer transfer the property to him within a specified period. Accordingly, it is precisely this right of obligation that a participant in shared construction can pledge, and it is precisely this right that will be the subject of the transaction we are considering.

Art. 9 of Law No. 102-FZ obliges to describe the item so accurately that it can be easily identified. Thus, in the section devoted to the subject of the contract in question, the following information should be reflected:

about the shared construction agreement (when and where it was concluded, information about the number and date of the registration procedure completed);
developer and participant;
the object being constructed, including its name, location and full description, as well as the date when it will be handed over to the participant.

IMPORTANT! Only rights arising on the basis of a shared construction agreement that has duly passed the registration procedure can be pledged (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated March 12, 2013 No. 15510/12).

When drawing up an agreement for pledging the right of claim of a participant in the savings-mortgage housing system for military personnel under an agreement for participation in shared construction, one should be guided by the appropriate standard form approved by Order of the Minister of Defense of the Russian Federation dated December 23, 2015 No. 820.

The ruling of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation in case No. 14-КГ19-1 confirms the right to conclude and submit agreements for the assignment of rights of claim under agreements for participation in shared construction ( DDU ) simultaneously with the conclusion and submission for state registration of such DDU.

Photo: www.uf.ru

The plot of case No. 14-KG19-1 is as follows: the developer, Vybor LLC, entered into seven agreements with Stegra Oil LLC.

Then she handed over to citizen I.S. Bityutskikh. under contracts of assignment of the right of claim (cession), the right of claim from seven one-room apartments.

After signing the assignment agreements, the parties applied to the registration authority for state registration of the assignment agreements. At the same time, the corresponding agreements concluded between and Stegra Oil were also submitted for state registration.

Photo: www.moepravo.pro

Next, representatives of Stegra Oil applied to Rosreestr with a statement to terminate the state registration of contracts for the assignment of claims.

Bityutskikh I.S. went to court with a demand for state registration of these agreements.

The court of first instance rejected the stated claims. Reason: lack of registration of the DDU at the time of concluding assignment agreements.

Photo: www.pocketputty.net

According to the court, the participant in shared construction did not have the right to conclude assignment agreements before the state registration of the DDU, therefore the assignment agreements are in accordance with paragraph 4 of Art. 166 of the Civil Code of the Russian Federation - are recognized as void.

The appellate court agreed with this conclusion of the first instance court, pointing out that the participant in shared construction did not have rights to the disputed real estate and, therefore, the rights to alienate them, and therefore, the assignment agreements between the parties were not concluded.

Photo: www.ceur.ru

But the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation overturned the court decisions in the case, and the case was sent for a new trial to the court of first instance.

The Supreme Court pointed out that the lower courts did not take into account the following legal grounds:

1) according to Article 388.1, paragraph 5 of Art. 454 and paragraph 2 of Art. 455 of the Civil Code of the Russian Federation, the agreement on the basis of which the assignment is made can be concluded not only in relation to the claim belonging to the assignor at the time of conclusion of the contract, but also in relation to the claim that will arise in the future or will be acquired from a third party;

2) according to Art. 390, art. 396 of the Civil Code of the Russian Federation, the impossibility of transferring a claim does not in itself lead to the invalidity of the agreement on the basis of which such an assignment is made;

Photo: www.respectrb.ru

3) the parties in court recognized the fact of concluding equity participation agreements and assigning rights of claim and transferring them for registration;

4) by the court of first instance the provisions of paragraph 4 of Art. 166 of the Civil Code of the Russian Federation (on the right to apply the consequences of invalidity of a void transaction by the court on its own initiative to protect public interests) were applied contrary to the explanations of the Plenum of the Supreme Court of the Russian Federation dated June 23, 2015 No. 25 “On the application by courts of certain provisions of Section I of Part One of the Civil Code of the Russian Federation.”

In the latter case, the decisions did not contain any indication of the law allowing to go beyond the stated requirements, nor of violations of public interests.

Photo: www.cashcirculation.ru

Other publications on the topic:

Supreme Court: obligations to shareholders in bankruptcy proceedings do not cease

Supreme Court: collection of a fine for late fulfillment of obligations under the DDU is the responsibility of the court

Supreme Court: for untimely return of funds upon termination of an apartment reservation agreement, the developer is obliged to pay a fine and compensation for moral damage

Other terms of the agreement

The participant has the right to pledge his rights under the shared construction agreement as security for any other obligation, for example, when receiving a loan. This obligation, in other words, the transaction, the fulfillment of which will be guaranteed by the pledge, must be described in the text of the agreement indicating:

names of its parties;
the date and place of her imprisonment;
the amount of the transaction (or the method of determining it, if it is established in the future);
percent;
deadline for execution of the transaction (or conditions on the frequency of payments in case of sequential partial execution);
grounds for the emergence of obligations.

The parties may establish in the pledge agreement the value at which they value the pledged right of claim.

It is also advisable to indicate in the contract the procedure for foreclosure on the subject of the pledge, its validity period, the procedure for making changes, as well as terminating the contract.

Legal grounds for the emergence of a shareholder's right of claim

The subject of the agreement that citizens enter into with the developer is the mutual obligations of the parties:

the shareholder undertakes to pay the cost of the future residential premises after the conclusion of the contract;
the developer assumes the obligation to complete construction within the period established by the contract and transfer the finished object to buyers.

Thus, from the moment of payment of the required amount under the contract, citizens have the right to demand the transfer of finished residential premises to them within a specifically agreed period. Federal Law No. 218-FZ declares the presumption of integrity of the parties to shared construction, which implies the proper fulfillment of their obligations.

The right to demand the transfer of an object is guaranteed by law, and, therefore, can be a full-fledged way to ensure obligations to third parties. In practice, such security is realized by providing the bank with collateral when obtaining a mortgage loan.

Pledge of the right of claim by force of law

After concluding and registering an equity participation agreement, can a participant pledge his rights under it to a third party if the purchased property was paid for using funds from a bank or other credit organization? Answer: no.

Art. 77 of Law No. 102-FZ recognizes the property (or rights to it) as automatically pledged to the bank, whose funds were used to pay for its acquisition.

IMPORTANT! For such a pledge (in Article 334.1 of the Civil Code of the Russian Federation it is called a pledge based on the law) no separate agreement is required. Information about such a pledge will be entered into the real estate register (USRN) simultaneously with the registration of the shared construction agreement (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 25, 2011 No. 13905/10).

Thus, it will not be possible to pledge rights that are already pledged to the bank or other person who paid for the purchase a second time.

Do not pay the new creditor until written notice is received

The debtor is not required to pay the new creditor until he receives written notice of the assignment. The notice must make it clear to whom, where and how much to pay. The debtor is not required to find a new creditor. This also applies to the assignment of non-monetary rights, for example, the delivery of goods to a new buyer.

The debtor is considered to have received the notice if the creditors sent it by mail, but he did not go to the branch to sign for the letter. This follows from paragraph 67 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated June 23, 2015 No. 25.

When a letter of assignment has arrived from a new creditor and the debtor suspects fraud, you can ask for an agreement signed by the old debtor. Until the new creditor proves that he has bought the right, the debtor may not pay. But if the notification was sent by the old creditor, it is considered that the debtor was notified and there can be no doubt. The old creditor is not required to show the assignment agreement.

If the notice is late or its contents are unclear, the debtor pays the old creditor. Then the creditors sort things out among themselves.