In what cases can a claim be made against the developer?
If the developer has violated his obligations under the equity participation agreement, the shareholder has the right to file a claim against him. This measure sometimes helps to resolve the dispute before court, but the buyer of the apartment is not obliged to first submit a demand and then terminate the contract - he can switch to this option immediately if he considers it necessary. There are two reasons for making a claim.
The first is a violation of the deadline for transferring the apartment - the main obligation of the developer in the equity participation agreement (DPA). By law, the developer is obliged to transfer the housing no later than the same deadline for all participants in the construction as specified in the contract. At the same time, the developer cannot refer to other documents (project declaration, construction permit, documents for the land plot) - only the period specified in the DDU is important. As a rule, a quarter is designated no later than which the shareholder must receive the keys. Accordingly, after its completion, shareholders can make a claim.
Important: there is no point in delaying filing a claim, since the deadline for transferring the apartment is not considered violated if the shareholder evades signing the transfer deed. If the developer nevertheless puts the house into operation, he may try to prove in court that the shareholder evaded receiving the keys.
The second common reason for claims is the transfer of real estate of inadequate quality. We are talking about any shortcomings that can be discovered during inspection of the apartment. True, Metrium
, many flaws can be hidden from the eyes of a non-professional in construction and finishing, so it is better to call an expert for help. Most often we are talking about poor-quality wiring, poorly installed windows, salt on the walls, and mold. Even more complaints may be related to the decoration of the premises. The requirements for violation of the construction period and the quality of the apartment are different.
Court decisions
Gray sales schemes in new buildings
Failure to meet deadlines by the developer
Penalty from the developer Dalpiterstroy
Dispute with LLC Lenspetsstroy
How to return money for an apartment if the contract was not concluded in accordance with No. 214-FZ
Violation of deadlines for delivery of the house by the developer
How to file a claim due to violation of construction deadlines
According to the law, a claim against a developer due to a violation of a deadline is drawn up in any form. Metrium experts
It is recommended to describe in detail the essence of the requirement, attach supporting documents and make references to legal norms confirming the rightness of the shareholder.
The claim must indicate:
1. The name of the developer (not to be confused with the name of the development company - it is better to rewrite the name from the DDU), address, phone number, email address.
2. Last name, first name and patronymic of the shareholder, place of residence or postal address to which the developer can send a response, telephone number, email address.
3. Description of the claim. In particular, you need to indicate the details of the DDU, the planned and actual date of transfer of the apartment, and the date of execution of the transfer deed. If the apartment is not received, then this is what you should write about.
4. Request for payment of a penalty indicating the amount and calculation. The penalty is calculated as follows: the Central Bank refinancing rate (now it is 4.25%) is divided by 300, and then multiplied by 2. The resulting derivative is multiplied by the number of days of delay. The total value is subtracted from the cost of the apartment as a percentage. For example, if an apartment worth 5 million rubles was transferred 31 days late, the penalty will be 43,865 rubles.
Important: the average period of disruption to the commissioning of housing in Russia is about 6 months, so the amount of the penalty can be large. However, the court does not always clearly take the side of the equity holder and can significantly reduce the amount of the penalty.
5. Account details for transferring funds.
6. List of documents that the equity holder attaches to the claim.
7. Date and signature of the shareholder.
What documents must be attached to the request?
The claim must be supported by documents related to the transaction. In particular, you should attach copies of the share participation agreement, a certificate of payment of the cost of the apartment (bank check, receipt of funds, etc.), as well as a transfer deed if the apartment was nevertheless accepted, but with a delay. If his representative acts on behalf of the shareholder, then he must have a power of attorney.
How to file a claim due to a quality violation
The developer’s obligation is to hand over an apartment that complies with the terms of the contract, design documentation, requirements of technical regulations and urban planning legislation. If the apartment was built with deviations from these standards, which led to a deterioration in quality, the equity holder has three options:
1. Demand that the shortcomings be eliminated.
2. Get a discount by reducing the price of the equity participation agreement.
3. Reimburse expenses if the shareholder eliminated the shortcomings himself.
Important: a claim can be made within five years from the date of transfer of the apartment to the shareholder if deficiencies appeared in the building’s structures, and within three years if problems arose with engineering and technological equipment. However, Metrium
, in this case the developer has room for maneuver, because he can declare that the shortcomings arose due to improper use of the apartment by the shareholder.
What to include in a complaint about the quality of an apartment
1. The name of the developer (not to be confused with the name of the development company - it is better to rewrite the name from the DDU), address, phone number, email address.
2. Last name, first name and patronymic of the shareholder, place of residence or postal address to which the developer can send a response, telephone number, email address.
3. Description of the problem. It is advisable to present it in detail and explain exactly how it violates the convenience of using the apartment for its intended purpose.
Important: before filing a claim, it makes sense to call a representative of the developer, who will confirm the presence of a problem, and draw up a report on the identified defects, as well as attach photographs to it. Subsequently, this document can be demonstrated in court.
4. Requirements for the developer. Depending on the chosen claim option (see the previous paragraph), the desired discount to the contract price, calculation of the cost of eliminating deficiencies, etc. are indicated.
5. List of documents attached to the claim.
6. Account details for transferring funds.
7. Date and signature of the shareholder.
What documents should I attach to the claim?
Documents must confirm the requirements of the equity holder: a copy of the DDU, certificates of payment for the contract, a transfer deed, an independent expert’s opinion indicating the cost of the necessary materials and work to eliminate deficiencies.
Important: From April 3, 2021 to January 1, 2021, penalties and interest payable in the event of a unilateral refusal of the construction participant to fulfill the contract are not accrued, and losses caused during the specified period are not taken into account. For previously submitted claims, a deferment is granted.
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Procedure for filing a claim with the developer
The claim should be sent to all addresses of the developer - actual and legal. The address of a legal entity can be found by the INN (or OGRN) number on the official website of the Federal Tax Service. You can submit a claim in the following ways.
1. By letter by mail, including email. It is recommended to send the claim by registered mail with acknowledgment of delivery and a list of the contents. When using e-mail, it must be possible to accurately determine that the real address is actually associated with the specified e-mail.
2. Personally submit a claim to an authorized person of the developer. It is recommended to make two copies of the claim, and it is advisable that the developer’s representative make a note on the date of acceptance and his signature on the shareholder’s copy.
“Whatever option the client chooses, before filing a claim, you always need to talk with the developer,” comments Maria Litinetskaya, managing partner (member of the CBRE partner network)
. – Preliminary dialogue may allow us to resolve the problem without trial or claims. Today, developers take their reputation very seriously and can find a mutually beneficial solution to any problematic situation.”
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