From April 1, 2021, the Government of the Russian Federation is authorized to make decisions on the “peculiarities of application” of penalties and other financial sanctions in the field of shared-equity construction (Parts 3, 4, Article 17 of the Federal Law of April 1, 2020 N 98-FZ).
It only took a couple of days for the Government to develop and publish Resolution No. 423 dated 04/02/2020, which approved these features.
We offer an overview and assessment of the new rules for calculating and collecting penalties under Law No. 214-FZ, effective in 2021.
Interest on the use of the shareholder’s money upon termination of the DDU
The most common reason for terminating a contract with a developer is a violation of the deadline for transfer of a shared construction project by more than 2 months. If the shareholder terminates the contract, the developer must return to him the paid price of the DDU and interest for the use of money - from the date of payment to the day of return (Part 2, 6, Article 9 of Law No. 214-FZ).
Developers are exempt from paying this interest for the period from April 3 to December 31, 2021.
Even before the quarantine, unscrupulous developers were in no hurry to return money to shareholders under terminated contracts. It was necessary to seek the return of money through the court, where a significant reduction in interest with reference to Art. 333 of the Civil Code of the Russian Federation is not uncommon. Now, at the instigation of the Government, such developers will actually perceive the introduced measure as permission to withhold the shareholder’s money with impunity (free of charge).
You can, of course, go to court. But, given the current situation, the time it takes to consider the case and the general appeal by developers of court decisions in order to delay their execution, it will take a long time to wait for a writ of execution for collection. It is possible that more than 9 months.
Therefore, there is a high probability that the shareholder, whose rights have already been violated, and therefore the contract was terminated, will be left without money at least until the end of 2021 and will be deprived of the opportunity to invest it in another project. The developer will not be responsible for this. And what will happen to him by this time is a big question.
Detailed process for collecting penalties from the developer for delays in the DDU
Russian developers often postpone the completion of houses. If you encounter such a problem, you have the opportunity to obtain compensation from the developer for violating the terms of the contract. You need to understand that the situation will not resolve itself. Even if the delay in delivery of the house is small, this is a reason to start proceedings.
The rights of the shareholder, enshrined in Federal Law No. 214-FZ, require the collection of a penalty from the developer. If the management company does not pay you compensation voluntarily, you can go to court.
To collect the penalty yourself, you will need a lot of effort and time, and the result will not be guaranteed. At each stage you will encounter different difficulties. The developer can also create various obstacles during the legal process. But when you contact our law firm, you can save your time. We will handle all arrangements and meetings. Also, the process itself may take less time, and the result will be guaranteed.
Payment for our services occurs after you receive your money.
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Now let's look at the whole process step by step.
- The very first thing you need to do is check the developer’s solvency.
- Calculation of penalties and other payments.
- Drawing up a claim against the developer.
- Drawing up a statement of claim in court.
- Participation in litigation.
- Receiving the amount.
Over time, the developer's funding may run out, and there may not be enough funds to pay compensation to all claimants. Therefore, it is best to file a claim on the first day of delay.
To find out about the health of a company, you need to analyze its balance sheet and financial stability. This is a rather complicated task, so it is better to consult our law firm. We will tell you about working with this developer.
To make the calculation, you will need an agreement that specifies the date the developer promised for the transfer of the apartment.
You need to take the price indicated in the DDU, multiply it by the current rate of the Central Bank of Russia and multiply it by the number of days by which the apartment is overdue.
*from October 25, 2021, the CBRF rate is set at 7.50%.
The current rate can be found here: RATE OF THE CENTRAL BANK OF THE RF BY PERIOD
In addition to the penalty, you can also receive:
- compensation for losses (housing expenses)
- compensation for moral damage
- fine (50% of the awarded amount)
It is quite simple to calculate the amount of recovery from the developer using our online calculator
Applying to the developer with a claim, which sets out the requirements for the company (payment of a penalty, reimbursement of material costs, compensation for moral damage). The document must indicate the calculation of the penalty and the specific amounts of the claims.
How to write a claim: SAMPLES OF CLAIM
The claim should be sent by a valuable letter with a list of attachments to the legal address of the company.
The document must contain the following data: - date; — number of the DDU agreement; — the period for transferring the penalty (according to the Law on the Protection of Consumer Rights it is ten days); — financial details to which the money will be transferred (all details); - date of; - signature.
Also be sure to save a copy of the document.
If the developer has not responded to the claim within 10 days, you have the right to file a lawsuit.
The developer may try to avoid an answer and stall for time. You may also be asked to sign a rescheduling agreement, which changes the terms of the main contract. After signing it, it will be much more difficult to claim a penalty.
To submit an application to the court, you need to prepare the relevant documents:
- A copy of the DDU with attachments.
- Copies of documents confirming payment for the object under the DDU, certified by the bank.
- Claim to the developer and documents confirming its dispatch (postal receipts)
- Documents confirming additional expenses.
- Copy of passport (first two pages)
- Extract from the Unified State Register of Legal Entities regarding the developer.
The statement of claim is drawn up according to the sample, you can see an example on our website
Next, we file a claim in court through the office or directly to the judge.
You should also immediately ask to check all the documents and that they are filled out correctly.
The choice of court also has its own nuances. You can familiarize yourself with them in our article().
This is quite a long and intense period. You will be required to regularly attend court hearings, prepare and submit various documents on time, develop action tactics, and adapt to changing circumstances.
Even if the court rules in your favor, the developer can appeal it within 30 days.
The appellate court can either change the decision of the first instance or uphold it.
Getting the required amount from the developer is not so easy. After winning the process and receiving a writ of execution, you should send it and the corresponding application to the debtor’s bank. Before this, you need to find out the company’s bank details from the contract or upon request to the tax service.
Within a week the funds should arrive in your account. But this process may also be delayed due to a queue of writs of execution or a lack of funds in the company’s account.
There is another option - to immediately submit the writ of execution to the Federal Bailiff Service. If the developer has several accounts in different banks, the bailiffs will send a request to write off funds to all organizations.
Don't trust the developer. If he says that after handing over the keys he will pay. After handing over the keys, he will bankrupt his company and withdraw money from the accounts. And then you will no longer be able to receive your payments.
It's time to collect the penalty:
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Another writ of execution was received for the recovery of funds from the developer Tekhnostroy LLC in favor of the equity holder. By the decision of the Lefortovo District Court of Moscow, the claim was satisfied in favor of the plaintiff. To recover from Tekhnostroy LLC a penalty for violating the deadline for transferring a shared construction project to a participant in shared construction in the amount of 550,000 rubles, the cost of paying for the services of a representative in the amount of 15,000 rubles. Total - 565,000 rubles.
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November 25, 2021
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Another writ of execution was received to recover money from the developer RegionInvest LLC in favor of the shareholder. By the decision of the Cheryomushkinsky District Court of Moscow, the claim was satisfied in favor of the plaintiff. To collect from RegionInvest LLC a penalty in the amount of 100,000 rubles, compensation for moral damages of 3,000 rubles, a fine in the amount of 15,000 rubles, and expenses for a representative in the amount of 15,000 rubles. Total - 133,000 rubles.
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November 21, 2021
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Another writ of execution was received for the recovery of funds from the developer MORTON-RSO LLC in favor of the shareholder. By the decision of the Zyuzinsky District Court of Moscow, the claim was satisfied in favor of the plaintiff. To recover from MORTON-RSO LLC a penalty for violating the deadline for the transfer of a shared construction project in the amount of 155,000 rubles, compensation for moral damages in the amount of 20,000 rubles, expenses for paying for the services of a representative in the amount of 13,000 rubles, a fine in the amount of 10,000 rubles, postal expenses 310 rubles 87 kopecks. Total 198,310 rubles 87 kopecks.
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November 10, 2021
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Another writ of execution was received for the recovery of funds from the developer LLC “Specialized Developer “Buhta Land”” in favor of the equity holder. By the decision of the Vidnovsky City Court of the Moscow Region, the claim was satisfied in favor of the plaintiff. To recover from Specialized Developer "Buhta Land" LLC the cost of eliminating construction defects of a shared construction project in the amount of 207,188 rubles, a fine in the amount of 103,594 rubles, and compensation for moral damages in the amount of 5,000 rubles. Total - 315,782 rubles.
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November 4, 2021
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Another writ of execution was received for the recovery of funds from the developer Pavlovsky Kvartal LLC in favor of the shareholder. By the decision of the Istra City Court of the Moscow Region, the claim was satisfied in favor of the plaintiff. To collect from Pavlovsky Kvartal LLC a penalty for delay in transferring a shared construction project to a participant in shared construction in the amount of 45,000 rubles, compensation for moral damages in the amount of 10,000 rubles, expenses for paying for the services of a representative in the amount of 10,000 rubles, a fine in the amount of 15,000 rubles, postage costs 100 rubles. Only 80,100 rubles.
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November 1, 2021
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Another writ of execution was received to recover money from the developer Zagorodnaya Usadba LLC in favor of the shareholder. By the decision of the Golovinsky District Court of Moscow, the claim was satisfied in favor of the plaintiff. To collect from Zagorodnaya Usadba LLC a penalty for delay in transferring a shared construction project to a participant in shared construction in the amount of 70,000 rubles, compensation for moral damages in the amount of 10,000 rubles, expenses for paying for the services of a representative in the amount of 10,000 rubles, notary expenses in the amount of 1,900, a fine of 40,000 rubles, postage costs of 234.67 rubles. Total 132,134.67 rubles.
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November 1, 2021
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Another writ of execution was received to recover funds from the developer PJSC PIK-SZ in favor of the shareholder. By the decision of the Shcherbinsky District Court of Moscow, the claim was satisfied in favor of the plaintiff. To collect from PJSC PIK-SZ a penalty for delay in transferring a shared construction project to a participant in shared construction in the amount of 74,000 rubles, compensation for moral damages in the amount of 10,000 rubles, expenses for paying for the services of a representative in the amount of 20,000 rubles, a fine in the amount of 28,000 rubles , postage 234.67. Total 132,234.67 rubles.
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October 28, 2021
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Another writ of execution was received for the recovery of funds from the developer LLC "A101" in favor of the shareholder. By the decision of the Shcherbinsky District Court of Moscow, the claim was satisfied in favor of the plaintiff. To collect from A101 LLC a penalty for delay in transferring a shared construction project to a participant in shared construction in the amount of 490,000 rubles, compensation for moral damages in the amount of 10,000 rubles, expenses for notary services in the amount of 1,700 rubles, postage in the amount of 234.65 rubles ., a fine of 250,000 rubles. Total 751,934.65 rubles.
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October 28, 2021
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Another writ of execution was received for the recovery of funds from the developer Pavlovsky Kvartal LLC in favor of the shareholder. By the decision of the Istra City Court of the Moscow Region. To collect from Pavlovsky Kvartal LLC a penalty for delay in transferring a shared construction project to a participant in shared construction in the amount of 95,000 rubles, compensation for moral damages in the amount of 10,000 rubles, expenses for paying for the services of a representative in the amount of 10,000 rubles, a fine in the amount of 25,000 rubles, postage 150 rubles, . Total 140,150 rubles.
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October 25, 2021
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Another writ of execution was received for the recovery of funds from the developer Pavlovsky Kvartal LLC in favor of the shareholder. By the decision of the Istra City Court of the Moscow Region, the claim was satisfied in favor of the plaintiff. To collect from Pavlovsky Kvartal LLC a penalty for delay in transferring a shared construction project to a participant in shared construction in the amount of 65,000 rubles, compensation for moral damages in the amount of 10,000 rubles, expenses for paying for the services of a representative in the amount of 10,000 rubles, a fine in the amount of 20,000 rubles, postage costs 100 rubles. Total 105,100 rubles.
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October 21, 2021
Within what period of time the requirements for the writ of execution must be satisfied
In accordance with Art. 36 of the Federal Law “On Enforcement Proceedings”, the requirements for the writ of execution must be satisfied within a period of two months (except for cases where the deadlines for satisfying the requirements for the writ of execution are determined by laws or other regulations). The claimant may submit a writ of execution to the bailiff service within three years, i.e. within the general limitation period. After its expiration, money can only be claimed based on a court decision.
How to speed up debt collection if the process is delayed by bailiffs
The collection of half of all income of the debtor and the seizure of his valuable property can be carried out by bailiffs forcibly. But the debt collection process often drags on. The deadline for sending the writ of execution to the FSPP is three days, then within three days the bailiff makes a decision on the enforcement proceedings. The deadline for repayment of the debt by the developer on a voluntary basis is five days.
If this deadline is violated, the bailiff sends requests for property owned by the debtor. As a result, the process is delayed. In this case, the losses are borne not by the bailiff and the developer, but by the applicant. This process can be accelerated by filing a complaint with the court or the prosecutor's office. If there is evidence of improper performance of duties by bailiffs, the amount of debt may be recovered from the state treasury. But to start such a process, it is better to contact a qualified lawyer.
How to collect a penalty if there is no money in the developer’s account
It is impossible to collect a penalty under the DDU if there is no or a small balance of money in the developer’s account. At the same time, the developer may have an account not only in a specific bank, but also in another, which is not advertised. In this case, you can take the following actions:
- find additional accounts yourself and contact the bank to collect a penalty;
- contact bailiffs, whose list of services includes enforcement proceedings for developers.
What schemes does the developer use to evade paying fines and debts?
Before making demands for debt collection from a developer, it is necessary to assess the current situation. Typically, to evade paying fines and debts, the developer uses the following schemes:
- drawing up a new agreement, which specifies a new deadline for putting the house into operation if the previous one is violated. If such a document is signed, it is impossible to demand a penalty and compensation from the developer;
- offer of compensation for refusal of demands for payment of a penalty. If you agree to such a proposal, not only will the amount of compensation be less than that provided by law, but its payment will also be delayed. In this case, it will be impossible to demand payment of the penalty through the court due to a written refusal.
Refund of funds as a result of declaring the developer bankrupt
In shared construction, any participant can apply to the arbitration court to declare the developer bankrupt on the basis of a decision made by the court to recover funds invested in construction. The period for making a decision after the formation of debt should be three months for a total amount of 100 thousand rubles.
Initiating a case in court and declaring the development company bankrupt is unprofitable for its founders and owners, so they will make much greater efforts to resolve the dispute, including the sale of other property available.
What is included in the list of services when providing legal assistance by qualified specialists
When providing legal assistance by qualified specialists, the list of services also includes taking appropriate measures regarding:
- seizure of property that belongs to debtors;
- a ban on certain actions that may be performed by the debtor, as well as by third parties (if such actions are related to the property that has become the object of the dispute).
An experienced lawyer will help you collect the debt from the developer with minimal time and money. Modern and reliable channels used to conduct deep searches allow us to effectively provide assistance in debt collection and identification of all assets owned by the developer.
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