Defrauded investors and litigation
The developer promised to build an apartment building. I found shareholders, concluded a shared construction agreement with them and began to build. And after a while it went bankrupt, that’s what happens.
The shareholders decided to finish building the house and for this purpose organized a housing construction cooperative. Housing cooperatives handed over the unfinished house and the land plot underneath it. The housing cooperative approved the charter, which described the purpose of its creation - to protect the rights of participants in shared construction and to complete the construction of the house.
At the general meeting, the members of the housing cooperative unanimously decided to accept the developer’s creditors as members of the cooperative only after all participants in the shared construction of this house have been identified to the fullest extent possible.
The members of the cooperative decided that the money that shareholders contributed under agreements with the developer should be considered a share contribution, because the house was built at their expense.
But then something went wrong, and the cooperative did not accept the application of one shareholder to offset her contribution to the shared construction of a house against the share contribution of a member of the cooperative and did not include her among its members.
The shareholder went to court. The trial court supported her claim. He indicated that the housing cooperative:
- violated his own charter and the property rights of the shareholder;
- did not notify her in time about the convening of a general meeting at which a decision was made to terminate the admission of participants in shared construction as members of the cooperative;
- did not provide the opportunity to become members of the cooperative.
The Court of Appeal overturned the first court's decision. He proceeded from the fact that the shareholder was to blame: she submitted an application to become a member of the housing cooperative after the termination of the admission of participants in shared construction to the cooperative. The shareholder appealed to the Supreme Court of the Russian Federation, and it reconciled everyone.
Multi-house HOAs
132270
Shareholders of "Demos": pay the cooperative or remain without an apartment
According to the law, a member of a housing cooperative acquires ownership of residential premises in an apartment building if the share contribution is paid in full - provided, of course, that such an apartment already exists at that time.
Leading lawyer at the Etazhi real estate agency, Dmitry Kharalampidi, notes that members of housing cooperatives are less protected than participants who acquire real estate by concluding a share participation agreement in construction. For example, a housing cooperative agreement may provide for the opportunity to collect additional money to complete construction.
“The specificity of share accumulation agreements is that they are not subject to state registration; there is no transfer of ownership in these transactions. Two copies, one of which is taken by the shareholder, and the second remains with the developer. Among the risks - in addition to violating the deadlines for putting the house into operation and transferring the apartment to the shareholder, there is a risk that the rights to the apartment you acquire may be alienated to third parties. Therefore, the agreement with the housing cooperative must clearly indicate what the shareholder will receive: an apartment of what size and layout, with or without finishing, in which house, on which specific plot,” the lawyer emphasizes.
Lawyers note that the main disadvantage of housing cooperatives is the uncertainty of the rights and obligations of the shareholder. Unlike shared construction, where almost all issues are spelled out in the law, in housing cooperatives many important issues are left to be regulated by the internal acts of the cooperative, primarily by its charter. However, many do not familiarize themselves with the charter in a timely manner. Meanwhile, it is precisely the charter, which is drawn up at the time of the creation of the housing cooperative, that contains provisions that impose many additional responsibilities on the shareholder and provide the cooperative with additional rights, allowing, in particular, to exclude an unwanted shareholder from the cooperative without providing him with premises and even returning him significantly less of what they contributed.
Thus, the charters of housing cooperatives often provide for, along with share contributions, various payments - periodic, introductory, etc. The entire set of these payments forms the total cost of the acquired object, however, if a shareholder leaves the housing cooperative, only the share contribution will be subject to return, which may only turn out to be a smaller part of this entire amount.
Therefore, Vladimir Ushkov, having left the cooperative, can only count on getting his money back. In the next three years.
We are waiting for new topics from you in the “Know your rights” at Or by phone: 541-901. We will conduct investigations, and Tomsk lawyers and human rights activists will provide advice on various issues.
Consequences of bankruptcy of housing cooperatives
If, by decision of the arbitration court, this organization is not able to repay the debt to its participants, then, according to the law, it must curtail its activities and, as a result, a corresponding entry about bankruptcy and termination of its work is made in the register.
Participants in a bankrupt housing construction cooperative can create a new organization with a new manager. Of course, the choice of a new manager should be approached very carefully; this person must be competent, prudent and have experience in handling money. To control the flow of funds, participants in this organization need to require all receipts and invoices during the construction process.
Features of the procedure
When conducting a bankruptcy procedure, in addition to the above-mentioned feature regarding the filing of a statement of claim for this type of proceeding, there are a number of certain features, which include:
- mandatory observance of the order of satisfaction of existing claims of a financial and property nature (first, the claims of creditors - the requirements of the first priority, then the demands of contractors - the requirements of the second priority, then the demands of members - the requirements of the third priority);
- during the bankruptcy procedure, it will be necessary to demolish all those buildings that are illegal in nature , or complete the procedure for registering ownership rights to those that are in the process of registration;
- after the completion of the bankruptcy procedure of the housing cooperative, another cooperative may be created , which will be responsible for completing the construction of the disputed property.
What are the consequences of bankruptcy of a management organization for owners of premises in apartment buildings?
If the management organization of an apartment building is declared bankrupt, the owners of premises in such a building must decide on the choice of method for managing the apartment building. If the decision is not made or implemented, an open competition is held to select a management organization. Until then, the previous management organization performs responsibilities for managing the apartment building.
Consequences of declaring a management organization bankrupt Activities related to the management of apartment buildings (MADs) are carried out by management organizations on the basis of an appropriate license. If a court decision declaring a management organization bankrupt has entered into force, information about apartment buildings managed by such a management organization, by decision of the state housing supervision body, is excluded from the register of licenses of a constituent entity of the Russian Federation (Part 1, Article 162, Parts 1, 5, Art. 192, part 5.4 of article 198 of the Housing Code of the Russian Federation). From the date of exclusion of information about apartment buildings from the register of licenses of a constituent entity of the Russian Federation, the management organization does not have the right to carry out activities to manage such a house, including charging and collecting fees for residential premises and utilities and issuing payment documents to consumers, with the exception of a number of cases (Part 6 of Art. 198 Housing Code of the Russian Federation). Thus, the management organization is obliged to properly fulfill the duties of managing the apartment building, providing services and (or) performing work on the maintenance and repair of common property in such a house until the day (part 1, 2 of article 164, part 3 of article 200 of the Housing Code of the Russian Federation ; Determination of the Supreme Court of the Russian Federation dated 06/03/2020 N 303-ES20-7774 in case N A24-4011/2019): 1) the emergence of obligations to manage apartment buildings for a new management organization selected by the general meeting of premises owners or selected based on the results of an open competition held local government body; 2) the emergence of obligations under an apartment management agreement concluded by the management organization with the HOA, housing cooperative or other specialized consumer cooperative; 3) the emergence of obligations under contracts concluded by the owners of premises under the direct management of apartment buildings (for example, contracts for hot water supply, cold water supply, sewerage, heating, etc.); 4) state registration of a HOA, housing cooperative or other specialized consumer cooperative. Within three working days from the date of the decision to exclude information about apartment buildings from the register of licenses, the state housing supervision authority sends information about this to the local government body (part 1 of article 192, article 197 of the Housing Code of the Russian Federation; clause 1, subsection “ b" clause 4 of the Rules, approved by Decree of the Government of the Russian Federation of March 28, 2015 N 289). Local government body (part 4 of article 200 of the Housing Code of the Russian Federation; clause 5 of Rules No. 289): within three working days from the date of receipt of the specified information, notifies the owners of the apartment building premises about this. To do this, he places the relevant information on notice boards at the entrances or within the land plot on which the apartment building is located, as well as on his official website on the Internet; within 15 days from the date of receipt of the specified notification, convenes a general meeting of owners of premises in the apartment building to resolve the issue of how to manage the apartment building. If the decision of the general meeting on the choice of management method is not adopted or implemented, or the general meeting was not held or did not have a quorum, the local government body selects a new management organization based on the results of an open competition. If an open competition for the selection of a management organization is declared invalid, it is allowed to conclude a management agreement for an apartment building without holding an open competition (Part 4 of Article 161, Parts 5, 6 of Article 200 of the Housing Code of the Russian Federation). The previous management organization, within three working days, is obliged to transfer to the person who has assumed the obligations to manage the apartment building, technical documentation for the apartment building and other documents related to the management of such a house, keys to the premises that are part of the common property of the owners of premises in the apartment building, electronic access codes to equipment that is part of the common property of the owners of premises, and other technical means and equipment necessary for the operation and management of apartment buildings (Part 1 of Article 200 of the Housing Code of the Russian Federation).
Consequences of the introduction of bankruptcy procedures in relation to the management organization (before it is declared bankrupt) The introduction of bankruptcy procedures in relation to the management organization, applied before the debtor is declared bankrupt (in particular, supervision, financial rehabilitation, external management) is not a basis for termination of the management agreement MKD, if such an organization properly fulfills the terms of the specified agreement (clauses 1, 2 of Article 450 of the Civil Code of the Russian Federation; part 8 of Article 162 of the Housing Code of the Russian Federation; clause 1 of Article 27 of the Law of October 26, 2002 N 127-FZ) . At the same time, the owners of premises in an apartment building are given the right to unilaterally refuse to execute a management agreement if the management organization does not comply with the terms of such an agreement, as well as to decide to choose a different management organization or change the method of managing this house (Part 8.2 of Article 162 Housing Code of the Russian Federation; Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated November 22, 2011 N 7677/11 in case N A65-11798/2010-SG3-14). It should also be taken into account that, in particular, the external manager has the right to refuse to execute the management agreement for apartment buildings within three months from the date of introduction of external management, if such an agreement prevents the restoration of the solvency of the management organization or if the management organization’s execution of the management agreement will entail losses for the debtor in comparison with similar transactions concluded under comparable circumstances (clauses 1, 2, Article 102 of Law No. 127-FZ).
Bankruptcy of developers in the practice of higher courts: 2014–2017
Dear Colleagues!
Below is an overview of the practice of higher courts on the bankruptcy of developers from the beginning of 2014 to 2021 (current moment).
Each case is provided with a highlighted legal problem and the corresponding legal position, keywords, an indication of the reporting judge, as well as the debtor.
In addition, the practice is divided into sections:
- application of bankruptcy rules for developers
- establishing requirements
- penalty for untimely transfer of a shared construction project
- deadlines for register closure/transformation of requirements
- procedure for consideration of proprietary claims
- recognition of ownership/share in ownership
- special methods of paying off the claims of construction participants
- double sales/competition of construction participants' demands
The Review also included the bankruptcy case of Mosinzhstroy, the decision of the Supreme Court of the Russian Federation on which was adopted on March 17, 2017.
Application of rules on bankruptcy of developers
Legal problem.
Do the rules on bankruptcy of developers apply to cases of raising funds for the construction of townhouses?
Legal position.
The rules on bankruptcy of developers do not apply to cases of raising funds for the construction of blocked residential buildings (townhouses), in which there is no common property characteristic of an apartment building.
Source.
Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated July 15, 2014 No. 15636/13
Keywords
: bankruptcy rules for developers, developer, townhouses
Debtor
: LLC "KALINA"
Judge-Rapporteur
: Valyavina E.Yu.
Note : The legal position is relevant until the application of the Bankruptcy Law as amended by Federal Law No. 304-FZ dated 07/03/2016: in the new edition, requirements for the transfer of residential premises for the purpose of applying special rules on bankruptcy of developers include, among other things, requirements for the transfer of ownership of residential premises premises in a residential building of a blocked development, consisting of three or more blocks.
Legal problem.
Can a person who does not attract funds from construction participants, but is the legal holder of a land plot and/or construction project, be recognized as a developer?
Legal position.
A developer can also be recognized as a person who is the legal holder of a land plot and/or construction project, but does not directly raise funds.
Source.
Determination of the Supreme Court of the Russian Federation dated August 22, 2016 No. 304-ES16-4218
Keywords
: bankruptcy of developers, sham transactions, raising funds from construction participants, developer, application of rules on bankruptcy of developers
Debtor
: LLC "SSK Metallurgmarket"
Judge-Rapporteur
: Bukina I.A.
Legal problem.
Can the claim of a participant in a consumer cooperative serve as the basis for filing a bankruptcy petition for such a cooperative?
Legal position.
The legislator points out the need to identify sham transactions of the developer or third parties acting in his interests, thereby providing protection to almost all categories of shareholders who have invested in the construction of apartment buildings, including through the so-called “shadow schemes” (clause 5 of Article 201.1 Bankruptcy Law), in connection with which the claim of a participant in a consumer cooperative can be used as the basis for a bankruptcy application for such a cooperative.
Source.
Determination of the Supreme Court of the Russian Federation dated July 31, 2015 No. 305-ES15-3229
Keywords
: competitiveness of the claim - grounds for the claim, bankruptcy of developers, requalification of claims, participation in a consumer cooperative
Debtor
: Housing cooperative "Vanil"
Judge-Rapporteur
: Kapkaev D.V.
Establishing Requirements
Legal problem.
1. In a case of bankruptcy of a developer, can it be refused to establish the amount of a penalty and a consumer fine for delay in transfer of an apartment on the grounds that the construction of the house has not been completed, the object has not been put into operation, the documents necessary for registering ownership rights have not been transferred, which has been established by a decision of a court of general jurisdiction when considering the issue of compensation for moral damage, as a result of which compensation was denied with reference to the lack of guilt of the developer
2. Can intentional and unjustified presentation of unreasonable losses and compensation be grounds for refusal to establish the amount of a penalty and consumer fine?
Legal position.
1. No
2. The exercise by the creditor of his right to judicial protection by the methods provided for by law cannot be regarded as an abuse of law if the debtor is not held liable for any financial liability for failure to fulfill the obligation to transfer the apartment by the courts.
Source.
Determination of the Supreme Court of the Russian Federation dated January 23, 2017 No. 305-ES16-10886
Keywords
: collection of a penalty, consumer fine, abuse of right, consequences of recognition of ownership of a share in a share in the form of an apartment, decision of a court of general jurisdiction
Debtor
: JSC "AleutStroy"
Judge-Rapporteur
: Kapkaev D.V.
Penalty for untimely transfer of a shared construction project
Legal problem.
1. How is the date determined from which the penalty for late transfer of a shared construction project begins to be calculated, if the deadline for transfer of the construction project is determined by the commissioning of an apartment building.
2. From what point does the penalty for delay in transfer of a construction project end when accruing the right of ownership of a construction participant to such an object?
Legal position.
1. If the deadline for the transfer of a construction project is due to the putting into operation of an apartment building, and the contract specifies the completion date for the construction of the apartment building, the penalty is collected from the end date of the transfer period, calculated based on the completion date of the construction of the apartment building specified in the contract, and if the apartment building is put into operation into operation - calculated from the date of actual commissioning.
2. Upon recognition of the ownership right of a construction participant to a shared construction object, the penalty for untimely transfer of a shared construction object ends accruing from the date of actual receipt of the shared construction object into the possession of the construction participant.
Source.
Determination of the Supreme Court of the Russian Federation dated October 3, 2016 No. 305-ES16-6006(2)
Keywords
: penalty for untimely transfer, deadline for execution, determination of the period, interpretation of the contract
Debtor
: Advanced Technologies LLC
Judge-Rapporteur
: Kapkaev D.V.
Deadlines for register closure/transformation of requirements
Legal problem.
Can the one-month period for transforming the requirement for the transfer of residential premises into a monetary claim (Article 201.13 of the Bankruptcy Law) be restored?
Legal position.
The one-month period for transforming the requirement for the transfer of residential premises into a monetary claim from the moment of sending the notification to the CU is not preemptive and can be restored at the request of the construction participant
Source.
Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated July 15, 2014 No. 4100/14
Keywords
: bankruptcy of developers, transfer of non-monetary claims into cash, non-professional participants, closure of the register, restoration of the deadline
Debtor
: JSC "Center of Author's Medical Technologies and Innovations"
Judge-Rapporteur
: Razumov I.V.
Legal problem.
What are the consequences of missing the deadline for filing an application to transform a claim for the transfer of residential premises into a monetary claim?
Legal position.
A construction participant who has submitted an application for transformation of a claim for the transfer of residential premises into a monetary claim with a missing month deadline for such an application (Clause 1 of Article 201.13) receives satisfaction within the framework of his turn, but at the same time has the right to sequential satisfaction, that is, from funds remaining after full settlement with other citizens - third-priority creditors who submitted applications for transformation of claims within the period allotted by law.
Source.
Determination of the Supreme Court of the Russian Federation dated January 21, 2016 No. 304-ES15-12057
Keywords
: transformation of requirements, missed deadline, consequences, requirement for transfer of residential premises, monetary requirement
Debtor
: Meskheti LLC
Judge-Rapporteur
: Razumov I.V.
The procedure for considering proprietary claims
Legal problem.
In what order are the requirements for establishing the boundaries of a land plot, recognizing the right to a land plot, recognizing the absence of a right to a land plot, presented to debtors in respect of whom the bankruptcy procedure of the developer has been applied, considered?
Legal position.
Protection of the rights of a person who has a claim in relation to real estate in a bankruptcy case of a developer, including a demand for recognition of ownership of a land plot and recognition of the right to such a plot as absent from the debtor, is carried out according to the rules of Article 201.8 of the Bankruptcy Law.
Source.
Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated October 29, 2013 No. 4044/08
Keywords
: recognition of property rights, procedural issues, procedure for consideration
Debtor
: CT “Social initiative and
Judge-Rapporteur
: Gorshkov V.V.
Double sales/competition of construction participants' demands
Legal problem.
1. In whose favor the residential premises are to be awarded (transfer or recognition of ownership) in the presence of two competing contracts for shared participation in construction executed by the buyers in relation to the same premises.
2. Does the act of transferring a share in the form of an apartment in an unfinished construction project confirm the transfer of actual ownership of such an apartment.
3. Does the good faith of a construction participant matter for the purposes of resolving a dispute over the award of an apartment in respect of which there are claims from several construction participants?
Legal position.
1. If there are two competing contracts for shared participation in construction executed by buyers in relation to the same apartments, priority for the purposes of transfer (recognition) of ownership of the apartment has the buyer who first took actual possession.
2. The act of transferring shares in the form of apartments in an unfinished construction project cannot confirm the transfer of actual ownership of the disputed apartments.
3. Priority in a dispute between two competing shareholders cannot also be given to the buyer who is dishonest and, through his illegal actions, contributed to an earlier takeover.
Source.
Determination of the RF Armed Forces dated 03/09/16 No. 308-ES15-16377
Keywords
: recognition of ownership, bankruptcy of the developer, prejudice, mandatory judicial acts, double sales, competition of equity participation agreements in construction, invalidity of transactions
Debtor
: JSC "Southern Electric Company"
Judge-Rapporteur
: Bukina I.A.
Legal problem.
1. Is it possible to recognize the ownership of an apartment as a person who invested in its creation if the rules on bankruptcy of developers were not applied to the debtor?
2. Does a person who is not a participant in the bankruptcy case, but whose ownership of the said apartment has been recognized, have the right to appeal a judicial act on a separate dispute on the recognition of ownership of an apartment?
Legal position.
1. Yes.
2. Yes.
Source:
Determination of the RF Armed Forces dated March 17, 2017 No. 305-ES15-16522
Keywords:
double sales, right of appeal, ownership, actual possession, apartment
Debtor
: JSC "Mosinzhstroy"
Judge-Rapporteur
: Razumov I.V.
