The procedure for calculating penalties under an equity participation agreement

Rules for calculating penalties for DDU according to Federal Law-214

Art. 6 and 9 of the Law “On Participation in Equity...” dated December 30, 2004 No. 214 establish two cases when the developer is obliged to pay a penalty under an equity participation agreement (DPA) in construction. The rules for calculating the penalty depend on the basis for its payment.

1. The penalty is payable in case of violation of the terms of transfer of the apartment to the shareholder. According to Part 1 of Art. 6 of Federal Law No. 214, the developer must transfer all apartments of one entrance to the shareholders on the day specified in the agreements with them. In case of failure to fulfill this obligation, the developer pays a penalty for each day of delay, calculated according to the formula from Part 2 of Art. 6 Federal Law No. 214.
2. If the developer delays the transfer of the apartment for two or more months, or the house was built with significant violations of building codes, then in these situations the shareholder can unilaterally terminate the DDU. Upon termination of the contract, the developer must return the money paid to the shareholder, as well as pay a penalty for the entire period of use. The calculation formula in this case is determined by Part 2 of Art. 9 Federal Law No. 214.

A short period of delay is an advantage

To receive money from the developer, you should not wait for the signing of the transfer deed. Advantage is given to shareholders who applied for compensation from the very first days of the delay.

Why is this happening? The defendant reacts to the massive influx of claims and begins to withdraw money from his bank accounts, and when the court decision is made, there is no longer any money to pay compensation. As a result, priority is given to those shareholders who submitted claims earlier.

If the established deadline for transferring the apartment has already arrived, and the acceptance and transfer document has still not been signed, the process of collecting the penalty can begin the very next day.

The consideration of the case, as a rule, takes 2-3 months - during this time the amount of penalties will increase, and we will clarify its size at the time the court decision is made.

If after the decision is made the item is still not handed over, we will apply for a new refund. In this case, the penalty for the second period will begin to flow from the next day after the court decision.

Formula for calculating penalties for DDU

The mathematical formula for calculating the penalty is as follows: The formula by which the penalty is calculated is the same in both cases. However, different data is substituted into it.

For calculations you will need 4 values:

• the amount for which the penalty is calculated;
• the period for which the penalty is calculated;
• the refinancing rate of the Central Bank of the Russian Federation;
• the share of the refinancing rate that is set for each day of delay.

If the shareholder is a citizen, then this is 1/150 of the refinancing rate; if an organization, then 1/300 of the refinancing rate.

How to determine the amount for which a penalty is calculated

In the event that we are talking about violation of the terms of delivery of the apartment, then the penalty, according to Part 2 of Art. 6 Federal Law No. 214, is charged on the contract price, that is, the cost of the apartment. It does not matter whether it is paid in full or in part.

When it comes to termination of the contract, the penalty is calculated on the amount actually paid by the equity holder to the developer. If the money was deposited in parts, then for each part the penalty is calculated separately, since in this situation the number of days of using the funds is different.

For what period should the penalty be calculated?

If the apartment is delivered late, the penalty will be calculated from the day following the day designated in the contract as the day the apartment was handed over. The day the delay period ends is the day the housing is actually transferred to the shareholder.

If we are talking about termination of the contract, then the first day of calculation should be the day the money (part of it) was deposited into the developer’s account, and the last one should be the day it was returned to the shareholder.

What Central Bank rate to use when calculating

The refinancing rate, otherwise called the discount rate (since 2016, the same as the key rate), is the interest rate at which the Central Bank of the Russian Federation provides loans to commercial banks. It is also used to calculate penalties and fines.

The refinancing rate is a fluctuating value that is periodically changed by the Central Bank. For example, during the period from June 22, 2020 to July 27, 2021, the rate was 4.5% per annum.

As for the question of what exact value of the refinancing rate should be used, the answer to it is in Part 2 of Art. 6 and part 2 of Art. 9 Federal Law No. 214. In both cases, the calculation of the penalty is applied to the rate in effect on the day of the actual payment of money by the developer to the shareholder.

Interest calculator when terminating a DDU

If you have already terminated the contract, but have not yet received money from the construction company, you need to demand a return of the money paid, interest, compensation for your losses (on a mortgage or rental property), as well as compensation for moral damages and other small expenses. How to calculate interest using the service:

1. Enter the amount paid under the agreement
2. Select the date and month of payment made
3. Indicate the expected time frame for the developer to return the money
4. As a result, the calculator will also indicate the amount of the fine to be collected in court.

Moratorium on accrual of penalties under DDU

To minimize the consequences of the restrictions imposed due to coronavirus, the Government of the Russian Federation introduced a moratorium on the accrual of penalties.

According to clause 1 of Decree of the Government of the Russian Federation dated 04/02/2020 No. 423, in the period from April 3, 2021 to January 31, 2021, no penalty is accrued.

Developers were also given a deferment for the period from April 3, 2020 to January 1, 2021 to pay penalties for claims that were presented to them before April 3, 2020.

How to get maximum compensation for DDU?

Imagine, the plaintiff claims 500,000 rubles. unstable and 250,000 rubles. fine, but the district court collects only 150,000 rubles. This is a common practice, so today the most profitable option for equity holders is recovery through arbitration. More details about this can be found in the article on the collection of penalties under the DDU through an arbitration court. Why is this method optimal:

1. Minimum reduction (no more than 50%, while ordinary courts reduce the fine to 90%). Often the arbitration will retain the full amount of the compensation requested.
2. The period of consideration is from 1.5 to 3 in arbitration, while in the courts of the Law Court the proceedings can last about six months.
3. You can collect a fine under the OZPP law, reimburse the cost of a lawyer’s services, and also compensate for other expenses.

Why investors cooperate with us:

1. No prepayment for services.
2. The client has access to a free visit from a real estate lawyer
3. The entire process is conducted by professional, experienced lawyers without the participation of the client.

We have been providing legal assistance in collecting compensation from developers for more than nine years. There are many interesting and powerful cases in our practice. An important criterion for success is the timely assignment of the case to professionals - it is recommended to contact lawyers immediately after the delay begins. This advantage will allow you to complete the process with maximum benefit for you!

Dynamics of the key rate since 2013

The formula for the online penalty calculator for DDU includes the refinancing rate, which serves as an important indicator of monetary policy. Currently, it is not formally linked to the actual indicators established by the Bank of Russia for certain types of transactions.

• from 12/20/2021 to today - 8.50%
• from 10/25/2021 to 12/19/2021 - 7.50%
• from 09/13/2021 to 10/24/2021 - 6.75%
• from 07/26/2021 to 09/12/2021 - 6.50%
• from 06/14/2021 to 07/25/2021 - 5.50%
• from 04/24/2021 to 06/13/2021 - 5.00%
• from 03/22/2021 to 04/23/2021 - 4.50%
• from 07/27/2020 to 03/19/2021 - 4.25%
• from 06/22/2020 to 07/26/2020 - 4.50%
• from 04/27/2020 to 06/21/2020 - 5.50%
• from 02/10/2020 to 04/26/2020 - 6.00%
• from 10/16/2019 to 02/09/2020 - 6.25%
• from 10.28.2019 to 12.15.2019 - 6.50%
• from 09.09.2019 to 27.10.2019 - 7.00%
• from 07/29/2019 to 09/08/2019 - 7.25%
• from 06/17/2019 to 07/28/2019 - 7.50%
• from 12/17/2018 to 06/16/2019 - 7.75%
• from 09.17.2018 to 12.16.2018 - 7.50%
• from 03/26/2018 to 09/16/2018 - 7.25%
• from 02/12/2018 to 03/25/2018 - 7.50%
• from 12/18/2017 to 02/11/2018 - 7.75%
• from 10.30.2017 to 12.17.2017 - 8.25%
• from 09.18.2017 to 10.29.2017 - 8.5%
• from 06/19/2017 to 09/17/2017 - 9.0%
• from 05/02/2017 to 06/18/2017 - 9.25%
• from 03/27/2017 to 05/01/2017 - 9.75%
• from 06/19/2016 to 03/26/2017 - 10.0%
• from 06/14/2016 to 06/18/2016 - 10.5%
• from 08/03/2015 to 06/13/2016 - 11.0%
• from 06/16/2015 to 08/02/2015 - 11.50%
• from 05/05/2015 to 06/15/2015 - 12.50%
• from 03/16/2015 to 05/04/2015 - 14.0%
• from 02.02.2015 to 15.03.2015 - 15.0%
• from 12/16/2014 to 02/01/2015 - 17.00%
• from 12/12/2014 to 12/15/2014 - 10.50%
• from 05.11.2014 to 11.12.2014 - 9.50%
• from 07/28/2014 to 11/04/2014 - 8.0%
• from 04/28/2014 to 07/27/2014 - 7.50%
• from 03.03.2014 to 27.04.2014 - 7.0%
• from 09/13/2013 to 03/02/2014 - 5.50%

Different years - different rates

A reasonable question arises: how to calculate the penalty for a long period if the refinancing rate changes three times a year. Unfortunately, there is no answer to this question, and there is no uniform judicial practice on this matter. For such cases, there is an unspoken principle of legal practitioners - to ask for the maximum, leaving the court room for maneuver. Let's explain with an example.

The delay began in January 2021, when the refinancing rate was in effect at 11%. The equity holder sent a preliminary claim to the developer after the refinancing rate dropped to 7.25%. 230 days passed from the start of the delay until the rate was changed.

It would be reasonable to calculate 230 days at 11%, and the next - at the rates in force for a particular period and send a claim to the developer. In 99.9% of cases the case will go to court. The fact is that the law does not regulate these issues in any way, and there is not a single indication of the retrospective nature of the new refinancing rates for past legal relations. Therefore, filing a claim to the maximum, you can only wait to see what the court decides. At the present time, there are both solutions that satisfy the phased penalty, and solutions that are completely opposite.

For a long time, clarifications from the Plenum of the RF Armed Forces on these issues have been expected, but so far there have been none, which means the plaintiffs are free to choose whether to ask for the maximum or the minimum.

Current rates

The amount of fines and charges depends on the refinancing rate. On January 1, 2021, it was equated to key.

From December 17, 2021 the key rate was 7.75 percent per annum.

In 2021, the Central Bank decided to reduce the refinancing interest rate. From July 2021, the key rate is 4.25% per annum.

In accordance with Article 23 of the Law “On the Protection of Consumer Rights”, the interest rate of the penalty will be 1% of the price of the DDU and will be calculated for each day of delay.

When can you claim a penalty?

Based on the number of applications from citizens submitted to the court on the issue of reimbursement of funds, we can conditionally distinguish 2 types of requests:

• The DDU was terminated before its validity period ended

The shareholder will be returned the funds that he has already contributed by the day of termination of the contract. An additional amount will be added for the use of money by the developer in the past tense. Relatively speaking, the shareholder acted as an investor, lent money to the developer for a while, and now the debt must be repaid, of course, with interest for the past period.

• The DDU was terminated after the expiration of its validity period; in this case, you can claim a penalty:

1. Due to the failure of the facility to be delivered and downtime for more than 2 months;
2. If the object is not delivered 2 months after the expiration of the DDU.

The developer will be exempt from paying all penalties if the transfer of the property is not due to the fault of the buyer. If it is proven that the developer has fulfilled all the obligations specified in the documents, and the shareholder for some reason evades and does not sign the transfer document, we will already be talking about fraud and tricks on the part of the shareholder. The court will be completely on the side of the developer if the buyer’s behavior and his intention to delay the transfer period in order to receive a penalty are proven.

What else can a shareholder demand?

Additionally, you can demand monetary compensation in the form of:

1. Compensation for moral damage through monetary payment;
2. A fine of 50% of the penalty amount;
3. Reimbursement of legal expenses: lawyer fees, powers of attorney, etc.;
4. Fine for delay in the amount established by the court (1% for each day overdue);
5. Review of the amount of the penalty and its recalculation by the day of the court hearing;
6. Compensation for unexpected expenses, such as rent.

The developer will in any case have to pay if he delays the transfer of housing. The penalty is provided for by law and depends on the specific period during which the obligations to transfer real estate are not fulfilled. Be careful, timely familiarization with the project and the documentation of the preparatory building, competent study of technical deadlines will allow you to avoid many problems associated with late construction and delays in real estate registration.