20 facts about penalties for late transfer of an apartment by the developer under DDU (214-FZ)

Grounds for collecting penalties

The basis for applying penalties to the developer is the delay in delivery of the house during shared-equity construction. This fact is confirmed quite simply:

• when signing the DDU, a date will be agreed upon no later than which shareholders must receive housing under the deed;
• the parties can change the specified period only by mutual additional agreement;
• Even if there is a delay of one day, the right to collect a penalty from the developer will arise.

The developer must take into account all his risks in advance and indicate in the DDU the actual date of commissioning of the house. It will be impossible to change this condition of the contract without the consent of other parties to the transaction, i.e. shareholders. This rule does not apply to detached non-residential premises, even if it is part of an apartment building complex.

A penalty for late delivery of an object can be recovered for the entire period of non-fulfillment of obligations. Until a transfer and acceptance certificate is signed between the construction company and the shareholder, penalties will be charged in the amount specified in Art. 6 Law No. 214-FZ.

For DDU, there are two rules for determining the amount of the penalty. If the buyer of the property is an organization or individual entrepreneur, the fine will be 1/300 of the refinancing rate of the Central Bank of the Russian Federation. However, to protect ordinary citizens, the law provides for increased penalties. For late delivery of an apartment under a shared participation agreement, if its participant was an individual, the penalty is paid in double amount, i.e. 1/150 of the rate of the Central Bank of the Russian Federation.

The law also indicates that the penalty rate under the contract cannot be lower than the legal amount. This means that the developer has the right to provide for a higher value of penalties in the DDU. In practice, this is rarely used, so the legal amount of the penalty will apply. An additional sanction for the developer may be a fine of 50% of the amount of the penalty if he violates the deadline for consideration of the claim. The procedure for collecting such compensation is provided for by the Law “On Protection of Consumer Rights”.

Pre-trial examination

If you realize that you are not satisfied with the quality of the finish, you should seek professional expertise. Moreover, it does not matter whether the transfer and acceptance certificate has already been signed. You can even live in the apartment for some time and demand monetary compensation from the developer at any time within five warranty years after the delivery of the house.

The exception is those cases when a person has already corrected and repaired something on his own. Such apartment objects are not taken into account either during the examination or in the further statement of claim. But if, for example, you started gluing wallpaper, went through one wall and realized that the surfaces are crooked, feel free to contact the specialists. One wall will not be taken into account, but experts will record irregularities on the rest, as well as all other defects.

“Often, home buyers pay attention to construction defects only when some global problem appears, such as freezing of walls or windows. The current cold winter has perfectly revealed such “bonuses” from developers - in January alone we carried out about 40 thermal imaging examinations,” Vyacheslav gives an example.

Calculation of the amount of the penalty

To correctly calculate the amount of penalties, you need to know the period of delay. This could be a length of time:

• between the date of delivery of housing specified in the contract and the moment of signing the act;
• period of delay as of the date of filing the statement of claim in court.

If the violation of obligations continues after filing the claim, during the process it is possible to recalculate upward. It is also possible to re-file a statement of claim if, after the decision was made, the shareholder still did not receive the apartment. The second court will consider the new period of delay according to similar rules.

Calculation example

The shareholder is required to calculate the penalty under the DDU when preparing a claim or statement of claim. The formula used for this is:

Sn = Kdn x Sdog x 1/150 of the refinancing rate, where:

• Sн – amount of penalty to be collected;
• Kdn – number of days of delay, i.e. before the date of actual acceptance of the apartment or filing of a claim;
• Sdog – the amount under the contract.

The refinancing rate indicator is periodically changed by the Central Bank. You can always check the current indicator on the website of the Central Bank of the Russian Federation. You can calculate the number of days of violation of obligations using the calendar.

How to file a claim against a developer: procedure

Before filing a claim, be sure to collect documents confirming your rights. The jurisdiction of the case is chosen by the plaintiff:

• At the place of registration of the developer's company;
• At the address of the location of the facility under construction;
• At your place of residence;
• At the registration address of the intermediary who participated in the signing of the agreement.

You have a choice of which court to go to. This is convenient if the head office of the developer is significantly removed from you, and there is no way to get there by spending your own money.

When all the documents have been collected, the claim has been drawn up, you go to court and register the filing of the complaint. This can also be done by mail to the court address.

Dmitry Trataevsky Project lawyer

It must be remembered that it is advisable to prepare all documents that a participant in shared construction collects for the trial in 3 copies, including the statement of claim itself. This is done in order to submit 1 copy of the documents to the court, and the second copy to the defendant (developer). In this case, the developer will only need to provide a copy of the statement of claim and a calculation of penalties. All other documents are almost always prepared in duplicate and are available to the developer. Practice shows that most often, with a claim against the developer, participants in shared construction apply to the federal courts at the location of the plaintiff (the shareholder himself). This choice is more appropriate from a cost-saving point of view.

Which court to file a claim in?

If the shareholder under the DDU is a citizen, and the amount of the penalty does not exceed 50 thousand rubles, the claim must be filed with the magistrate. If the cost of the claim is greater, the documents will be considered by a court of general jurisdiction. In case of bankruptcy of the developer, claims must be presented in the framework of an arbitration case.

As a general rule, jurisdiction for a dispute is determined by the location of the defendant or the property. Since we are talking about collecting a penalty under the DDU, a special rule is applied to protect consumer rights - the plaintiff can choose where to file a claim. It is allowed to go to court at the location of the defendant, or at the citizen’s residential address. To correctly determine jurisdiction, we recommend consulting with our lawyer.

What documents are needed?

A package of supporting documents is attached to the statement of claim:

1. Participation agreement.
2. Assignment agreement (if there was an assignment of rights).
3. Payment receipts confirming payment under the DDU and the assignment agreement.
4. Claim against the developer for payment of penalties and damages.
5. Documents confirming correspondence with the construction company.
6. Agreements, payment documents confirming the shareholder’s expenses due to failure to fulfill the developer’s obligations.
7. Documents confirming legal expenses - services of a representative, payment of state fees, etc.
8. Copies of the claim for the court and the defendant.

If the apartment owner has difficulty filing a claim, it is better to contact a lawyer.

The video story will tell you about collecting a penalty from a developer - advice from an experienced lawyer

How to get a court decision

If the issue of collecting a penalty is decided positively by the court, the developer has the right to appeal the decision within 30 days. If the complaint is not filed, after the expiration of the specified period you need to contact the court office and pick up the decision and writ of execution. If the developer has filed for review, the appeal determination of the shortcomings of the first instance act will take up to 1 month. As soon as the complaint is considered, the court's decision will come into force. You can obtain it from the court office of the first instance, where the case will be returned.

Arbitrage practice

Although the amount of the penalty and the procedure for its collection are specified in detail in the law, problems may arise in the legal process. It will be most difficult to obtain compensation if the developer has filed for bankruptcy. In this case, the property of the construction company will be sold at auction, so the time of payment may be delayed.

Disputes regarding the collection of penalties under the DDU have repeatedly been the subject of proceedings by the Supreme Court of the Russian Federation. The following recommendations of the Supreme Court can be identified, which will be applied when considering the claim:

• the penalty under the DDU does not apply to cases of construction of apartments, since this object does not fall under the concept of residential premises under the Housing Code of the Russian Federation;
• the contract amount on which penalties are charged includes both the shareholder’s own investments and mortgages, maternity capital, and other sources of financing;
• recovery is allowed even in the case of. if the DDU was concluded without prepayment on the part of the shareholder;
• a claim for a penalty can be filed not only by a Russian, but also by a foreign citizen or a stateless person.

Lawyer services and their cost

For all questions related to the calculation and collection of penalties under the DDU, you can get free legal advice on our website. To do this, you can contact a consultant or fill out the feedback form. The table shows the cost of services of a lawyer or attorney.

The prices indicated are preliminary, as they depend on the complexity of the case and the circumstances of the dispute. You can clarify these points during a consultation with a lawyer. You can also find reviews on previous cases involving the collection of fines on the site.

A penalty for DDU is accrued according to Law No. 214-FZ if the developer violated the deadline for handing over the finished object. The penalty rate is 1/150 of the refinancing rate of the Central Bank of the Russian Federation for each day. Due to the particular complexity of this category of cases, we recommend that all actions be carried out with the support of an experienced DDU lawyer.

Suing the developer: grounds for filing

The basis for filing a claim is any violation of the terms of the contract concluded with the developer, failure to comply with the requirements established by federal or regional legislation. Among the most common are:

• Delays in delivery of housing and construction;

• Low quality of materials and work performed;

• An increase in the cost of a home that is unreasonable;

• The desire to receive a penalty for late delivery of the house;

• Refusal of the developer to eliminate defects during the warranty period;

• Inability to meet financial obligations.

Dmitry Trataevsky Project lawyer

The most common violation of obligations on the part of the developer is precisely the increase in the terms of construction and delivery of real estate. The reasons may be different. It is worth remembering that if such periods increase, the developer is obliged to notify the shareholders in writing two months in advance. Most often, along with such a notice, shareholders are asked to sign an additional agreement, according to the terms of which the shareholder agrees to an increase in terms. However, the shareholder has every right not to sign such an additional agreement.

On our website you can.

But in order to describe your situation as accurately as possible, you must contact a lawyer who can prepare all the documents and represent your interests in court.