It would seem when buying housing in the new building problems should not be. Check the history of the apartment is not necessary - it is only built; It is not necessary to make sure that there are no tenants left in it, which are not discontinued from registration. But it was not there!
Photo: shutterstock / fotodom.ru
If the developer has not fulfilled its obligations, the buyer of the apartment in the new building has the right to compensation. Provided, of course, that the contract of equity participation in construction (DDU) was compiled correctly.
Do you terminate the contract?
The term of transfer of the property The real estate is a prerequisite condition for the contract of equity participation in construction, so enshrined in law. If the term is not specified, the contract will not be registered in the State Register. If the developer for some reason cannot finish the construction of the house and put it into operation at that time, which is established in the contract, it is obliged to send the participant with relevant information and the proposal to change the terms of the contract.According to the requirements of Article 6 of Law No. 214-FZ "On participation in the share construction of apartment buildings and other real estate objects", it must be done no later than 2 months before the expiration of the term specified in the contract. In the event that the shareholder agrees to wait a little bit, the developer is preparing an additional agreement on the change in the timing of construction and the timing of the transfer of the apartment.
Please note: an additional agreement to the shall participation agreement must pass state registration in the territorial administration of Rosreestra
The buyer has a different version of actions - he may not wait for the end of the construction and terminate the DTD unilaterally. For this, it is enough to send the developer with the corresponding written notification by registered mail. Terminate the contract or agree to wait - to solve only the shareholder. First of all, it is necessary to analyze the reasons why the developer did not have time to fulfill its part of the contract for the appointed date. If the reasons can be eliminated (for example, the contractor violated the delivery time of building materials), and the term for extending the construction is not too big, it is possible to wait for the end of construction. If the reason for the change of the developer or, for example, in the absence of permits, or the deadlines for completing the construction are postponed for a year or more, the buyer has every reason to decide in favor of termination of the contract.
In order to not be mistaken with the choice, it is best to trust the professionals and get advice of a lawyer specializing in shared construction.
Claims to the developer
If the developer did not report a delay in the end of construction (or if the deadline specified in the additional agreement comes to the end, and the house is not yet given), it is necessary to send a written claim to the developer, demanding to fulfill the obligation, to issue the keys to convey the apartment and pay a penalty for Delay.The deadline during which the developer must answer the shareholder, is ten days (it must be designated in a written claim). The claim is sent by registered letter with a receipt notice. The shareholder can also give a claim to the developer or his representative personally. In this case, prepare two instances of the document. One will remain from the developer, the second, with the seal and signature of the adopted party, you take yourself. It will be useful if you have to go to court. If the developer did not respond to a complaint (did not propose to sign an additional agreement, did not explain the cause of the delay), please contact the court.
The claim can be compiled independently or to apply to legal advice. You can file a claim at the location of the developer or at your place of residence. Note that you can demand not only the payment of penalties, but also compensation for moral damage (however, its size will like to justify documented), as well as a fine for non-compliance with the consumer's requirements in a voluntary basis.
The following documents must be attached to the claim:
- contract for participation in shared construction;
- additional agreements to the Agreement (if available), if they regulate the transfer period of the object by the participant of equity construction;
- documents confirming payment on your part;
- other documents confirming additional costs (rental of housing or overpayment of a loan);
- your claim to the developer with a proposal to voluntarily fulfill the requirements for the payment of penalties;
- The answer to the claim (if it was, of course).
The probability of winning the case of the delay of the deadlines is very large. The only thing experts pay attention to and what the analysis of judicial practice shows, the size of the penalty declared in the lawsuit can be significantly reduced.
Compensation for waiting
For each day of delay, compensation is relying. If the prolonnel wants to terminate the deal, the developer after receiving the appropriate notice within ten working days is obliged to return money paid for the apartment and pay the penalty for the use of other people's money. The size of the penalty is determined from the calculation of the 1/150 refinancing rate, acting at the time of the return of money.
Since since 2016, the size of the refinancing rate is equal to the key rate, its size must be specified separately
For example, on 06/18/2017, it was 9.25%. The amount is accrued from the day when the shareholder has made money (fully or their first part) under the contract, up to the day when they are returned. Let's consider. The apartment cost 8.5 million rubles., Delivered for 96 days, the size of the refinancing rate is 9.25%. The amount of compensation in this case will be: (Apartment price / 100 × refinancing rate / 150) × number of days of delay, that is: (85 000 × 9.25 × 150) × 96 = 503 199.00 руб. If the developer refuses to pay the penalty voluntarily, in accordance with the Federal Law "On Consumer Protection", the Court may prevent a fine of 50% of the amount of the penalty from such a respondent.In addition, the shareholder has the right to recover compensation for causing moral damage caused by, for example, long waiting. The amount you determine as compensation for harm will have to confirm documented. To do this, it is necessary to collect all the paper evidence that you carry additional costs due to violation of the deadlines. We give examples. If you take a housing, all the time you can't move to your own apartment, you spend extra money. You can confirm your expenses by presenting a copy of the lease agreement for residential premises and wards, testifying that you translate money to the owner of the apartment (or, for example, it will be at the expense of a hotel or hostel).
WITHOUT AN AGREEMENT
With the adoption of the Federal Law "On participation in the share construction of apartment buildings and other real estate objects" No. 214-ФЗ conflict situations with the participation of shareholders and the developer has become much smaller. Nevertheless, sometimes a contract of equity participation in construction (DDU) cannot fully protect the buyer of housing.
On the other hand, compensation in violation of construction periods can be obtained in the event that the apartment is purchased not through the contract of equity participation. It will be more difficult (often in investment contracts or preliminary sales contracts do not contain the deadline for the end of construction and the transfer of housing).
If the term in the contract is specified, then you can safely apply to the court. In the course of the proceedings, a decision on compensation should be made, and, following the provisions of Art. 332 Civil Code of the Russian Federation, even if the contract has not recorded the obligations of the Seller for compensation for damages, the buyer may require the payment of a penalty. Its size will be determined by the rules of Art. 395 Civil Code of the Russian Federation, that is, based on the accounting rate of the Central Bank of the Russian Federation on the day of the fulfillment of the obligation. More difficult if the duration is not defined by the contract. However, and then the buyer should not be discouraged - to confirm his words that the deadlines are violated, you can correctly assembled evidence. The only thing in this case cannot do without competent legal support.
Act of age-transmission
After the house is commissioned, the developer must send a message to the shareholders, which refers to the readiness of the object and the invitation to accept the apartments in order. If the developer is interested in the fact that its shareholders will receive their square meters, it may not limit himself with a mail message, and call the shareholders or (and) to send them an email message. Or you can constantly check the page of the developer in social networks and the site on the Internet, then you will have the latest information.
After you have received an invitation, you need to contact the developer and clarify the procedure. Usually apartments are issued in the order of the general queue (if they were not distributed in advance). In order to receive documents and inspect the apartment, the presence of all the shareholders called in the contract is necessary. If someone from your co-investors cannot come (for example, you bought an apartment with my spouse, for the time of the new one, he was or she was in a working business trip), it is necessary to make a power of attorney on that of the shareholders who will receive an apartment. If you need a specialist help - for example, the Project of the repair and construction team, which will finish your housing, can also be invited to inspection. Please note: Often the developer right at the meeting suggests immediately sign the act of acceptance and transmission, and after later. Assimate should not, otherwise, if there are deficiencies, you will have to eliminate them at your own expense.
Photo: shutterstock / fotodom.ru
We are looking for shortcomings
It must be said that the prolonnel must be sure to be ready for the fact that he will not see the perfect walls or sex. On the other hand, agree with all the lowers is also not worth it. In the text of the law, there is no clear classification of the shortcomings, they are commonly divided into significant and insignificant.There are all those in which it is impossible to live in an apartment. For example, these are such shortcomers as: non-working sewage, holes in the walls and windows, broken entrance doors, no shut-off mechanisms on the windows. Even if there is a significant amount of one, you cannot sign the act of acceptance and transmission.
Unnecessary can be called defects that do not interfere with living in the apartment: pits and bugs in plaster, scratches on the windows. Both significant, and insignificant shortcomings need to be made to a defective statement, which is attached to the act of acceptance and transmission, indicating which is the identified deficient. However, it is not necessary to hurry with the signing of the act, since the developer must assign a date to which essential defects will be eliminated. Only after their elimination, the shareholder can relatively safe for his wallet to sign the act of acceptance transmission.
If the developer believes that the defauls identified in the apartment are insignificant, he must prove it using an independent construction expertise. Please note: even if you found any shortcomings after signing the act of acceptance, you can refer to the developer to eliminate them. Federal Law No. 214-FZ provides that the warranty period for the house itself is 5 years, on engineering equipment (pipelines, heating and ventilation systems) - 3 years.
Most often, the developers do not agree to compensate for the shareholder costs for eliminating the shortcomings, and they propose to correct them with the forces of their contractors. If this is your case, get ready to wait. The law obliges the developer to eliminate the shortcomings "within a reasonable term," but the term itself does not establish. Usually on the finish allocate up to the month. If you have already taken the keys, the developer will have to agree with you when a construction and repair team will work in your apartment.
Take or not accept?
After you have received an invitation from the developer to take an apartment, you need:
- collect all the shareholders specified in your contract;
- get a power of attorney on those who can not take part in the reception of housing;
- prepare passports, power of attorney (if any) and the contract of equity in construction;
- Thoroughly examine the apartment, not to hurry and not sign the act of the technicians until the inspection is completed;
- If substantial shortcomings are revealed, insist that they are documented, but the act of reception does not sign.
The developer is obliged to eliminate shortcomings in the apartment for a specified period or specify the possibility of monetary compensation to the buyer of the costs of their correction. Federal Law No. 214-FZ does not guarantee or the quality of the apartment, nor the parameters specified in the contract (Method, layout), since the developer is entitled to make changes to the project documentation, having received approval for this at the shareholders, to achieve agreement with which they simply, because they would like to move quickly in one's own housing.
Extra and missing meters
When the construction is completed, it may be discovered that the area of the apartment you bought is different from the project. By law, to introduce an object into operation, the developer is obliged to order the measurement of all premises of the building from specialists from the Technical Inventory Bureau (BTI). After the procedure, the final size of each apartment finds out. If the housing turned out to be more, the developer will require additional charges; If the area is less - it will be necessary to compensate for the shareholder to the difference.
If the project deviations from reality have been revealed, the shareholder must submit an application (in two copies) of compensation for the director of the developer, in which to set out all the facts and ask for recalculation (indicating bank details). An instance of the shareholder must be maintained at least until the final decisions on the price of housing will be accepted. Some developers include in the DDA item according to which the deviation of the project area from the actual within 1-2% is considered permissible, and therefore the recalculation does not require. Please note: if the developer does not set the maximum possible value of the discrepancy of the project and actual area, the buyer will not be able to demand money from the developer for incomplete square meters.
If the developer delays a solution to the issue of returning the amount of overpayment or refuses to recalculate with the change in the functional of the premises, the shareholder has the right to recover overpays through the court. To do this, it is necessary to file a claim for the protection of the rights of the consumer, in parallel, stating the claims for the recovery of the penalty for the delay in the delivery of the apartment and compensation for moral damage.
