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How not to lose money with long-term construction projects

Our people don't know how to meet deadlines.

Nika Troitskaya

real estate marketer

Therefore, when the developer begins to delay the delivery of the house, all normal people begin to worry - on the other side there may be either ordinary Russian carelessness or a crazy scam with a criminal charge.

I want people to buy apartments from decent developers. But it happens that a good developer violates the delivery deadline. Today’s article is for those shareholders who find themselves in a similar situation: the developer is about to miss or has already missed the delivery deadline. Let's figure out what to do.

I’ll say right away that if you are reading this article not out of idle interest, but because you are really starting to experience delays in the delivery of your house - FOR THE SAKE OF ALL THAT IS SAINTS, CONTACT A DECENT LAWYER. Seriously. There are so many nuances and subtleties in this matter that even ten articles are not enough. This article is not an instruction or a solution to your problem, but only a quick glance towards a solution.

CONTACT A RELIABLE LAWYER, OKAY?

Well, fine.

Why do normal developers miss deadlines?

Deadlines are not always missed because the developers are swindlers. Construction is a big risk for the developer. He has to forecast sales income, the work of builders, exchange rates, relations with local authorities, laws, and federal policy in construction several years in advance. Forecasts do not always come true.

Something may happen during construction that will delay the deadline. A week of downtime there, two weeks missed here - a big delay gradually accumulates. The developer plays it safe and takes the construction period with a reserve, but it happens that this is not enough.

Additional agreement - do not sign

By law, any developer can offer you an additional agreement to reschedule - that is, offer you to change the contract. If the developer understands that he will not have time to complete the house on time, then no later than 2 months before the expiration of the deadline he must inform you about this and he has the right to negotiate with you on new terms. You have the right not to negotiate.

It is beneficial for the developer to negotiate with you. This means that the due date in your preschool education school seems to have changed, which means you are not against the delay. Developers adjust new deadlines so as to be guaranteed to meet them and not pay any penalties. If they do not fit into the new deadline, then the penalties in any case will be lower than if they were counted from the old deadlines. In short: an additional agreement is your consent to a free postponement.


Often developers make it look like you are required to sign an additional agreement. They send a notice of rescheduling: “We hereby notify you that the transfer date has changed to such and such, you are required to appear on such and such date and sign the rescheduling agreement.” Some fall for it - the power of words!

It is not profitable for you to postpone the deadline, so do not agree to the postponement. You don't have to.

The developer's lawyer will probably communicate with you, and quite harshly. Calmly tell him: “I understand that your job is to convince me of this additional agreement. But this is not profitable for me; the penalty for late payment will be less or there will be none at all. I’d rather spend this money on repairs.” All the feigned seriousness of the developer is nothing more than a psychological trick, don’t be fooled.

Personal archive of lawyer Andrey Targashov

Assess your chances of passing

Assess how realistic it is that the developer will complete the house, and how long it will take him to do it. If the developer nevertheless completes the house and rents it out, you have the right to demand a late fee and negotiate compensation for renting the apartment. For assessment, use professional help, rather than ingenuity and intuition - if you do not build houses every day, your intuition will not be enough to assess the condition of the object.

Look at the delay period the developer wanted when he offered you to sign an additional agreement. If the period is up to a year, then the chances of passing are greater (our lawyer-consultant thinks so).

If the period is more than a year, then it may happen that the developer will not complete the construction of the house and will not rent it out.

If the apartment costs 5 million, and the delay is a year, you have the right to demand 912.5 thousand rubles for the delay:

  • 5,000,000 × 365 × 1 / 150 × 7.5% = 912,500 R
    (the penalty is calculated at the rate that is in effect at the time the decision is made; for calculations we took the current one - 7.5%)

If all shareholders do this, the developer is unlikely to be able to pay them off. Most likely, the developer will file for bankruptcy, and someone else will complete the new building.

To assess your chances of passing, it is best to call a lawyer. But not an ordinary one, but a golden one, with experience working with developers. A golden lawyer will check whether there is movement on the developer’s accounts and understand whether it is worth initiating bankruptcy proceedings. The land plot on which the house is being built is pledged to the shareholders - perhaps it makes sense to sell it. But this is all a showdown from the highest spheres, and this needs to be done with the best lawyers. If at this stage it seems to you that you are well enough oriented to solve this problem yourself - it seems to you.

Wait for change

Usually, in case of delay, there are three options: wait for the house to be delivered, sell the apartment or terminate the contract with the developer. Let's start with waiting.

Advantages. Less legal hassle. You will receive an apartment that may cost more than what you bought. Apply for a tax deduction on the cost of the apartment and interest on the mortgage. Demand a late fee from the developer. You can live in an apartment.

Risks. Long wait. If the developer goes bankrupt, the fate of the property is unclear - maybe they will find another developer. He may change the project to meet the budget. You don’t know which developer will complete the house. The new developer will not pay you a penalty because he is not the legal successor of the old one, that is, he is not responsible for the debts of the old developer.

Sometimes shareholders, instead of looking for a developer, create a housing cooperative, chip in, hire contractors and finish building the house. These are additional expenses - not everyone is ready for them.

Sell ​​Now

You have the right to an apartment in an unfinished building. This right is worth something if it can be sold.

Advantages. You get money, perhaps even more than you invested, because the construction readiness of the house is higher. You get rid of the risk that the apartment will not be completed.

Risks. It may not be possible to sell at a profit: long-term construction projects are not so liquid. Perhaps the buyer will agree to take your apartment only at a big discount. The sale will need to be disclosed in the declaration.

What to do. Contact the developer's sales department and ask them to sell your apartment, promise an agent's fee - like realtors. Download renderings from the developer’s website and place advertisements on classifieds websites - “Cyan”, “Avito”, “Yula” - and city forums, if there are any. Tell your friends and social networks that you are selling your apartment. Leave the sale to a realtor. When you find a buyer, enter into an agreement with him on the assignment of rights and obligations.

An assignment agreement is the transfer of all property rights and obligations under the DDU to another person. That is, in fact, another person gets his own shared agreement with your developer. It's his problem now, hehe.

Refuse the contract unilaterally or terminate it by agreement of the parties

Any contract can be terminated; the conditions for termination are specified in the contract and the civil code. No one is anyone's slave.

Advantages. You get your money back and at the same time get rid of the hassle of renting an apartment. If you refuse the contract unilaterally, the developer, in addition, pays a penalty from the moment you pay the cost of the apartment according to the DDU. But this is only on paper.

Risks. If the developer is doing poorly with money, he may take a very long time to pay you. And it is impossible to say for sure whether it will pay. The fact is that at the moment of termination of the contract, you return the apartment immediately and the obligation to return the money to you from the developer also arises immediately. But when will he fulfill his obligation? The main risk is that the developer will return your money for the apartment for a very long time or will never return it.

Some swindlers withdraw money from accounts, and when shareholders approach them with claims and demands for the return of money, they shrug their shoulders: “There is no money, but you are holding on.”

If you have a mortgage, then you cannot get rid of the apartment without the bank’s consent. If you receive consent and sign a termination agreement with the developer, but suddenly the developer does not return the money to the bank, the bank may demand a loan from you. So it goes.

What to do. Your wonderful lawyer, whom you hired a long time ago, will tell you what to do.

To get rid of the risk that there will be no counter-performance, agree with the developer to sign the termination only if the developer opens a letter of credit in favor of the equity holder. This is a special bank account into which the developer immediately credits money in your favor, and the bank will give it to you when you register the termination of the contract.

If you terminate unilaterally, write a notice that you are terminating the contract and demanding payment of the cost of the apartment and the penalty from the moment the money is paid under the DDU.

You will have to pay tax to the state on the penalty: 13% of the penalty amount

The life hack with a letter of credit will most likely not work here, since by sending a refusal, you have already taken out a checker and are waving it. A unilateral refusal destroys all relationships - rely only on the good conscience or weak nerves of the developer (guess how often this happens among developers).

Compose the letter in free form under the dictation of your highly qualified lawyer and send it according to the rules that we described in the article

Seriously: LAWYER. HIRE A NORMAL LAWYER.

Residents of Russian cities are of keen interest, since purchasing housing under an equity participation agreement has become the only opportunity to acquire their own housing in the context of a significant increase in housing prices

In this article, we will consider the procedure if the developer delays the delivery of the house, the procedure for calculating and collecting penalties for delay in shared construction.

Violation of the deadline for putting the house into operation

The concept of putting a house into operation as such does not exist; it would be more correct to talk about putting the house into operation. People often confuse putting a house into operation and transferring a shared construction project to a participant in shared construction. These are completely different concepts. Putting a house into operation means obtaining permission to put an apartment building into operation, the latter means agreeing with all involved government agencies on the possibility of functioning of the house and its engineering systems.

In practice, the most common situations occur when the Developer violates the deadline for transferring real estate to a participant in shared construction; cases of liability for untimely commissioning of a house do not arise so often.


For a participant in shared construction, the issue of non-compliance with the deadline for handing over the construction project is more important, since the developer does not have the right to hand over the project without putting the house into operation.

Important! If there is a delay, the construction participant has the right to recover from the developer a penalty in the amount of 1/150 of the key rate of the Bank of Russia.

Payment of compensation and penalties for late delivery of the house

Developers rarely pay such penalties and compensation on a voluntary basis. However, some agree to a peaceful settlement of the dispute regarding missed deadlines for the transfer of the object. Therefore, if the delivery deadlines are missed, then it is worth trying to claim the penalty pre-trial by filing a claim. The letter of claim is sent to the legal address of the developer specified in the contract or in an extract from the Unified State Register of Legal Entities on the website of the Federal Tax Service of Russia.

Responsibility of the developer for late delivery of the house

As mentioned earlier, the developer’s liability for untimely transfer of the property is divided into liability for untimely transfer of the apartment to the shareholder and untimely commissioning of the property.

Responsibility for transferring an apartment to a participant not on time consists of the developer’s obligation to pay the shareholder a penalty in the amount of 1/150 of the refinancing rate of the Central Bank of the Russian Federation (key rate of the Bank of Russia); if the participant in shared construction is a legal entity, then the penalty is collected in the amount of 1/300 of the refinancing rate ( key rate).

Responsibility for untimely commissioning of a facility consists of the need to pay a penalty, which is determined by the contract, and losses caused by these actions.

Penalties for late delivery of an apartment to a shareholder

As noted, the amount of the penalty is calculated based on 1/300 of the refinancing rate (key rate of the Bank of Russia) for legal entities and 1/150 for individuals.

However, in practice, problems often arise with the calculation of penalties. So, in order to correctly determine the amount of the penalty, you need to determine the number of days of delay. The deadline for transfer of an object occurs on the next day on which the object should have been transferred. For example, the contract states that the object must be transferred no later than October 20, 2015. In this case, the period of delay begins to run on the next day, that is, October 21, 2015. The end date for accrual of the penalty is determined by the actual payment of the penalty. However, for convenience, the penalty is calculated on the day the claim is sent.

From 01/01/2016, the value of the refinancing rate of the Central Bank of the Russian Federation is equal to the value of the key rate of the Bank of Russia on the corresponding date. Since 01/01/2016, an independent value of the refinancing rate is not established and is not shown on the Bank of Russia website.

Also, to calculate the penalty, you need to know the price of the share participation object, which is indicated in the share participation agreement.

ATTENTION! Due to recent changes in legislation, the information in this article may be out of date! Our lawyer will advise you free of charge - write in the form below.

In this article I would like to highlight the procedure for interacting with the developer when it comes to postponing the delivery date of a house under the DDU.

Notification about postponing the date of commissioning of the house

According to Law 214-FZ, the developer is obliged to notify the participant in shared construction about the impossibility of transferring the object on time according to the contract, and offer to postpone the delivery date of the object. The developer must fulfill the obligation to provide the relevant notification no later than two months before the planned date of transfer of the object under the contract.

Important! Along with the notification, the construction company is obliged to send an additional agreement to the share participation agreement on changing the timing of the transfer of real estate.

The additional agreement is drawn up in simple written form, it indicates the names of the parties, full names, addresses, details, details of the equity participation agreement (date number, registration in Rosreestr), and the text of the new edition of the clause of the agreement on the deadline for delivery of the object.


The developer is postponing the completion date of the house, what should I do?

If the developer decides to postpone the transfer of the property, you should not panic and run to terminate the equity participation agreement.

It is important to determine why the developer postponed the delivery date of the house and whether this threatens the impossibility of delivering the property.


If the house is in the final stages of construction, work is underway and there is no information about the impending bankruptcy of the developer on the Internet, then there is no need to panic.

Important! Whether or not to sign an agreement to extend the construction period is up to you to decide. However, it is worth considering that signing such an agreement may deprive you of the opportunity in the future to recover a penalty from the developer for late delivery of the project, since you voluntarily agreed to the transfer by signing the agreement.

In addition, please note that you are not required to sign an agreement to postpone the delivery of the property. That is, it is your right to sign or not. You have the right to demand the transfer of the object within the period specified in the contract.

If the construction work on the house is not being carried out or has suddenly stopped, not due to weather conditions, and information appears about the developer’s inability to pay the bills, then you need to terminate the contract with the developer as quickly as possible and demand a refund of the funds paid.

If the deadline is shifted by more than 2 months, then you have the right to terminate the contract unilaterally and demand a refund. The developer is obliged to return to you the amount paid within 20 working days and interest for the use of funds in the amount of 1/300 of the refinancing rate of the Central Bank of the Russian Federation. Interest is accrued from the date of deposit of funds into the developer's account until the actual return of funds.

Important! The developer is obliged to return to you not only the contract price, but also interest for the use of your funds.

In this publication, we examined the procedure for interaction with the developer on the issue of postponing the delivery date of a house, and identified options for developing the situation in the event of a postponement of the delivery date of the house under the DDU.

ATTENTION! Due to recent changes in legislation, the information in this article may be out of date! Our lawyer will advise you free of charge - write in the form below.

Last update: 06/06/2019

Question:

The developer is delaying the delivery of the house according to the DDU, and invites me to sign an additional agreement to postpone the delivery date. What should I do? Is it worth signing this agreement? And what happens if I don't sign it?

Answer:

It is a rare bird that will fly to the middle of Lake Baikal, and a rare bird in Russia can boast of delivering a completed multi-apartment housing project on time. And each shareholder begins to have a headache in advance about what to do if there is a delay in construction and the timing of the transfer of the apartment according to the conditions Share participation agreements (DPA).

Developer in turn, trying to avoid payment, he exercises his right under the law ( FZ-214) reschedule this deadline with the consent of the other party to the agreement - that is, the shareholder. To do this, he sends the shareholder an official notification about postponing the delivery date of the house, and offers to sign it, essentially changing the original terms of the contract.

What does the law say here, and what is the best thing for a shareholder to do? The procedure here is usually as follows.

How is the completion date of a house determined?

The law “on the protection of the rights of shareholders”, popular among the people, provides for mandatory indication of the transfer period to the shareholder of the shared construction project in the list of conditions. At the same time, “transfer of an object” is legally understood transfer of finished apartment, and not putting the house into operation. Although in everyday life you can often hear about the delay in the “deadlines for the completion of the house.”

The law does not regulate in what form the transfer period should be indicated. The main thing is that it is the same for all shareholders of one house or its block section. Therefore, different developers indicate this period in different forms, for example:

  • The developer is obliged transfer the object to the shareholder shared construction after receiving permission to commission a residential building no later than December 30, 2017; – or
  • The developer is obliged to transfer the shared construction object to the shareholder approximately in the first quarter of 2017; – or
  • The developer undertakes to put the apartment building into operation by November 15, 2017. The developer undertakes within 10 days after delivery multi-apartment residential building into operation pass object shared construction to a participant in shared construction.

Despite the different wording, the specific date ( deadline) the transfer of an apartment to a shareholder can always be deduced from the conditions of the DDU. In the case of indicating “quarters”, this date is the last day of the specified quarter. And such vague formulations as “approximately”, “approximately”, etc. in controversial cases the court does not consider them.


If Developer violates the deadline for delivery of the house ( incl. for objective reasons beyond his control), he is obliged to notify all participants in shared construction about this no later than two months in advance before the period specified in the agreement, and invite them to change the DDU agreement by concluding an additional agreement to it (Opens in a new tab.">Clause 3. Article 6, Federal Law-214).

Additional agreement to the DDU on postponing the completion date of the house must contain an indication of the reasons for the delay in construction and propose new deadlines for transferring the apartment to the shareholder. It is important to understand that this is precisely a PROPOSAL to voluntarily renew the contract and postpone the deadline, and not a compulsory condition. The shareholder can accept it or not at his own discretion.

What happens if the shareholder signs an agreement to postpone the delivery date of the house?

If Developer will be convincing enough and the shareholder will agree ( “eh, okay, I convinced you”) sign an additional agreement to the DDU on changing the deadline for the delivery of the house and transfer of the apartment, then he loses the following:

  1. He will no longer be able to claim payment of a penalty due to delay in delivery of the house ( about penalties – see below). More precisely, he will be able to apply, but only if the Developer violates the new deadline for transferring the apartment under the additional agreement. And the penalty will be calculated from this new date.
  2. He is deprived of the right to unilateral termination of the DDU (about termination – see below) and return your money on the basis of violation of the deadline for delivery of the house for more than 2 months (Opens in a new tab."> clause 1, clause 1, article 9, 214-FZ). That is, to terminate the contract on this basis you will have to wait until the Developer violates the new deadline for 2 months.

If an additional agreement to the DDU is signed, then the original delivery date of the house will no longer be taken into account. In case of legal disputes with Developer, the shareholder will not be able to rely on the original terms of the DDU.

What happens if the shareholder refuses to sign this agreement?

According to the Civil Code of the Russian Federation, any change in the terms of the contract is possible only by mutual agreement of the parties ( with the exception of individual cases not related to this topic). It follows from this that the shareholder, being an equal party to the agreement, may refuse to change its original terms. There will be no negative legal consequences for the shareholder from this ( although the Developer will obviously be dissatisfied).

Of course, in fact, the date of delivery of the house will still be postponed ( there's nothing you can do about it), but the shareholder will be able to compensate himself for all losses associated with this by presenting claim for payment of a penalty.

For violation of the deadline for handing over the house and transferring the apartment to the shareholder - described in a separate note at the link.