We tell about what a compensation fund, an escro-account, what to do if the developer went bankrupt and about new rules for the protection of deceived shareholders in 2019.
On average, 2 to 6% of the shareholders every year do not receive their facilities on time, and it creates a significant problem for the real estate market. Protection of the rights of the shareholders provided for in 2005 by law No. 214-FZ was insufficient, so it continued to improve it. New rules are designed to protect the rights of deceived shareholders. The transition period has been launched until July 2019.
All about innovations in the law
Items and conceptsWho are such deceived shareholders
Problems of equity construction
Requirements for the developer
Requirements for DDU
Responsibility for changing deadlines
Compensation Fund
Bankruptcy Developer
Escrow account
Warranty
Prospects for innovations
About objects and concepts
So, there are two main features. The first is the developer - a legal entity who has or on the right lease of land and attracting cash participants in equity construction to create apartment buildings and (or) other real estate objects based on the obtained permit.
The second is a participant in shared construction - a citizen or legal entity. Together they can build not only residential buildings, but also garages, health facilities, catering, business activities, trade, culture and other real estate objects, with the exception of industrial facilities. This is recorded in Article 2 of the Law.
There is also a clear definition of the object of equity construction, that is, the fact that in the future should be your apartment, a garage or place in the underground parking near the house. This residential or non-residential premises to be transferred to the shareholder after receiving permission to commission an apartment building and (or) of another real estate object and the part of this house or the object of real estate constructed, including with the involvement of the Member's funds.
Who are such deceived shareholders
In order for the buyer of the problematic real estate under construction, the following conditions are needed:- The shareholder agreement was concluded;
- The executing party did not fulfill the obligations under the contract of equity participation longer than 9 months. and did not increase investment in the construction of a house of more than two reporting periods in a row;
- The developer has no successor to build an object;
- The obligations of the construction company before the shareholders are not secured by the Bank's guarantee or civil liability insurance.
Please note: in some cases, even the availability of a contract of equity participation in construction cannot protect the buyer-shareholder. Federal Law No. 214-FZ "On participation in the equity construction of apartment buildings and other real estate objects" (Law No. 214-FZ) does not protect the shareholders if:
- In the built house, the same premises were sold several times;
- The house is built on a plot that is not issued or rental;
- The house is built on a plot where it is not allowed;
- The house is built with a violation of a city planning plan, project requirements.
The abuse of the shareholders with its privileges (for example, the possibility of one-sided refusal of the contract or obtaining penalties for violation of the transmission of the object) may lead to the court will refuse them to protect rights if the malicious nature of actions is established.
Problems of equity construction
In essence, pitfalls are becoming clear to everyone who carefully studies this real estate investment scheme.
Pluses of the scheme are obvious: the buyer receives real estate by 30-40% cheaper than the average market price; The developer receives funds for the construction of real estate objects and the channel implementation of the finished product.
Unfortunately, such an investment is always associated with considerable risks. Small deferments are quite common, not always the schedule is committed thoroughly. However, it happens that the developer specifically postpones the completion of construction or pulls the moment of entering the housing.
Adopted in 2005 Law No. 214-FZ introduced a ban for developers to preselive apartments before receiving permits; I ordered the developers to register in the contract all terms and penalties for its non-fulfillment, as well as register every contract of equity participation (DDU) in order to exclude dual sales.
However, this was not enough and the changes began to introduce changes.
First, housing construction should be separated from other activities with the imposition of restrictions on the developer for performing operations that are not related to the implementation of the project.
Secondly, the principle of "One company is one building permit" should be observed. At the same time, construction with shared participation in several permits is now prohibited. At the same time, large developers will not be able to delegate their functions to child structures in order to take on the execution of several projects at once, because experience should be at least 3 years (at least as a general contractor or customer).
Thirdly, the activity of the developer must be accompanied by a designated bank credit institution. The company's accounts, the technical customer and the general contractor must be opened in the same bank.
Fourth, the requirements for the business reputation of the Developer's management bodies and its participants are tightened. Among the founders of the developer cannot be faces with unnoticed or outstanding convictions, as well as those who whose activities have caused the bankruptcy of the legal entity.
The company must obtain an examination conclusion even for low-rise buildings, not to have debts (except for target loans for construction). In an authorized bank credit institution, funds should be deposited in the amount of at least 10% of the construction cost (a peculiar parachute, which should be protected and developer, and shareholders in case of tightening time or bankruptcy).
Fifth, the law establishes the Limit of the Developer's expenses to the Foundation for the remuneration, payment of the Bank's services, the Services of the Management Company, Advertising, Communal Services, Communication Services, Rental. This limit is 10% of the design cost of construction.
How to choose a reliable company
If you are going to buy an apartment in the house under construction:- Learn available information about the developer, check its reputation.
- The easiest way to confirm the fact that you will read on the Internet, - to go to any of the buildings and make sure that work is carried out.
- Before signing the contract of equity participation in construction, read it carefully, do not hurry.
- If you have the slightest doubts, refer to lawyers to help you understand all legal intricacies.
New Requirements for Developer
Until the day, a contract with the first participant in the share construction of the developer no later than 14 days is obliged to publish in the media or on the Internet a project declaration where information about the company and project information are indicated.
The developer is obliged to provide a distribution at his request:
- construction permit;
- Technical and economic substantiation of the project;
- conclusion of the state examination of project documentation;
- project documentation, which includes all changes made to it;
- Documents confirming the rules of developer to the land plot.
He should also invest in the project its own funds in the amount of at least a third of the total budget of the project; Money attracted from shareholders should go strictly for the implementation of a specific project, and nowhere else.
Requirements for shall participation
In accordance with the DTU, one side (lolshler) undertakes to pay a fixed stake in the document and adopt a ready-made object, and the other Party undertakes to construct and submit this object to the agreement provided for by the agreement.The contract must comply with:
- determination of the specific object of shared construction to be transmitted in accordance with the project documentation by the developer;
- Specifying the deadline for the transfer of the object of equity construction to the shareholder;
- information about the price of the contract, timing and order of payment;
- Information on the warranty period acting in relation to the object under construction.
In the absence of at least one of the terms listed conditions, the contract is considered invalid. Each DDU should be registered in the Rosreestra Regional Division in order to avoid double sales.
The shareholder has the right to terminate the contract unilaterally, if, for example:
- There were problems with terms;
- Requirements for the quality of the real estate object are significantly violated;
- The planning of apartments envisaged by the initial project changes.
In the event of termination of the contract, the developer is obliged to return not only money to the shareholders, but also interest for the use of borrowed funds in the amount of the 1/150 refinancing rate of the Central Bank of the Russian Federation, which operates on the day of the fulfillment of the obligation to return funds paid by the shareholders. At the same time, the company may terminate the contract only through the court after 3 months.
Responsibility for changing deadlines
The developer is obliged to transfer the object to participants in equity construction no later than the term stipulated by the Treaty. The transfer period is set for all participants, it is one.If the process is delayed, the developer is obliged to pay a penalty (penal) to buyers in the amount of 1/75 refinancing rate of the Central Bank of the Russian Federation, acting on the day of fulfillment of the obligation, on the price of the contract for each day of delay.
In the event that it is impossible to build a house in the contract recorded in the contract, the company is obliged for 2 months. In writing to notify the shareholders and suggest to make changes to the contract.
In addition, the DDD establishes certain terms for the transfer of real estate to real estate investors after receiving permission to commission the house.
According to Law No. 214-FZ, the developer is obliged to transfer all apartments to customers for 2 months. After accepting the State Commission.
Compensation Fund to protect deceived shareholders
To ensure the civil liability insurance of developers under shall participation agreements is now a compensation fund.
All companies selling apartments at the construction stage should according to the law should be transferred to the Compensation Fund to provide liabilities under an agreement 1.2% of the price of each DDU. The law provides for an annual assessment of obligations to adjust the size of the assessment of the assessment, but not more often 1 time per year.
The funds of the compensation fund will be directed to the completion of problematic real estate objects. Heads the Compensation Fund CEO of the Agency for Housing and Mortgage Lending (AHML). It is very important that the task of the Foundation does not include collecting a certain amount, it is necessary only to ensure that it provides financial coverage of existing risks.
The maximum amount of possible money compensation is determined on the basis of the total area of facilities under construction and the price of one square meter of housing in this property. At the same time, the total area of the object of equity construction cannot exceed 120 m², and the price of 1 m² in it cannot be higher than the average value for similar housing on the primary market in the same region.
The compensation fund will help protect the rights of new shareholders; In order to help those accomplices who have already encountered difficulties, the regional authorities have drawn graphs of the completion of problem objects, indicating the timing and mechanisms of the solution.
If the developer is bankrupt
The total duration of the bankruptcy procedure is reduced by the abolition of the procedures for financial recovery and optimization of activities conducted by the Arbitration Manager and the Court of Bankruptcy. The first procedure is introduced to the procedure of competitive production, while the professional leader must lead the bankrupt company, which already has experience in the construction sector. A new bankruptcy manager directs a letter to shareholders in which the further procedure and the algorithm of actions will be described.
The law "On bankruptcy" establishes that the requirements of all the shareholders are presented to the competition manager, and not to the arbitration court no later than 2 months. From the date of receipt of the notification of the competitive manager. The manager considers the requirements and includes them in the registry.
If, in the course of the bankruptcy proceedings, sufficient reason appeared to believe that the debtor developer solvency could be restored, a transition to external management is possible.
The competitive manager is obliged to carry out the necessary actions to search and attract another performer. There is another option - the meeting of the shareholders has the right to decide on the method of executing obligations by receiving compensation from the compensation fund. In addition, it remains the possibility of repaying the requirements by transferring to the provisions of the object of unfinished construction or the transfer of residential premises (if the object is already built). The decision is made separately for each house under construction, the general meeting of future tenants, it is necessary to obtain the approval of ¾ of the shareholders.
Please note: in the bankruptcy of the developer, the most vulnerable category of property owners are owners of non-residential premises, including apartments.
The land plot and the house under construction are pledged with participants in equity construction until the developer fulfills its obligations; At the same time, the ownership of real estate proceeds to the shareholder at the time of registration of the contract of equity participation.
What is an escrow account
Eskrow - specialty of conditional deposit, on which cash degrees accumulate until the construction of the house is completed. Escrow accounts in Russia appeared in 2014, but used this scheme only in 2018.
Interest on funds placed on escrow accounts are not charged, and the bank where such accounts are open, does not receive remuneration. In fact, an escrow account is an interest-free deposit, the money on which is frozen for a period not exceeding the date of commissioning of the object into operation in the design declaration plus 6 months. When using Escrow Accounts, the shareholders do not accept the financial risk associated with a specific developer, and take the risk only to an authorized bank, which must return them to them in cases provided by law. In the event that the Bank is declared bankrupt, the developer reruns the contract with the new bank Agent, the insured money will be transferred to a new account.
The company receives funds from the exoruum accounts after entering the object to operation and register the right of ownership of at least one apartment.
Means with escrow accounts can be translated either to pay for the obligations of the Company on a loan agreement, or are listed directly to the developer (to calculate with the lender in the case when construction was carried out on the borrowed funds.
Warranty period - 5 years
The detergent is entitled to require free elimination of detected defects or reducing the price of the apartment to the appropriate amount. In addition, the shareholder may require compensation for its expenditures to eliminate deficiencies.Prospects for innovations
From July 1, 2019, the changes to the Federal Law No. 214-FZ began to operate in full. Shared construction should be replaced by the project, the registry must be created (it will help to check the reliability of the developer).
Also from July 1, 2019, the procedure for selling apartments in new buildings has changed. In accordance with the law, the company will now receive money not from the shareholder to continue construction, but from accredited banks and store them on escrow accounts.
But not all developers will work in this scheme. According to the resolution, developers can sell apartments for old conditions, if at home are ready at least 30%, and the number of concluded contracts - no less than 10%. Jews specializing in real estate, have already noted that developers are looking for bypass schemes, in the implementation of which real estate buyers Will not enter the DDD.
Only the contract of equity participation can guarantee the protection of the rights of the shareholder, so the Buyer cannot agree to the proposal of the developer to issue a bill instead, or a contract of assignment of law, or a co-financing agreement.
Real estate experts believe that changes in Law No. 214-FZ will force small and medium-sized companies from the market, since the goal of innovations is to renowned the construction industry. On the other hand, this situation may cause significant changes in the mortgage loan market, forcing banks to offer more profitable credit solutions for those who want to buy housing.
