Trying to circumvent the strict requirements of the law on joint construction for builders sometimes turns into a serious headache. The number of lawsuits buyers to return the prepayment in the hundreds. And, despite all the reservations in the preliminary treaty imposed 'equity holders' courts, the case, and satisfy their requirements. According to market participants, about 90 percent of housing is being built today on the future owners of the means, but to contract equity participation in the manner prescribed by law, many construction companies do not want. After all, it needs to perform a number of onerous requirements - to publish a declaration to comply with financial regulations, responsibility, etc. In St. Petersburg today is actually only 60 real estate developers raise capital co-investors in a lawful manner. One of the most popular ways to evade the execution provisions of the law until now has been the signing of preliminary contracts - agreements that the parties enter into a fixed term underlying transaction of sale. Civil Code does not prohibit such a procedure, but, according to most experts surveyed, it can not include the obligation to make all the prospective buyer or a substantial portion of the cost is not an existing property (apartments). "According to preliminary agreement to pay can not be - it is an axiom, - Mrs. Catherine Meteleva, Head of Legal Services Commission for the Company's real estate consumer of St. Petersburg and Leningrad region. - It generates only a commitment to conclude a contract property obligations arise from it can not. " In practice, prepayment, "masked" by the so-called advance or the deposit. In the legitimacy of such an interpretation doubtful even the servants of Themis. Thus, a judge of the St. Petersburg City Court Ilya Rogachev, convinced that by prior agreement can not pass a transfer of money. He was also concerned about the position of individual banks that are issuing mortgage loans, often insist on signing of the borrower (shareholders) and developer of highly questionable from a legal point of view of preliminary agreements. Agree to such a scheme, home buyers may be out of debt, without money and without an apartment. But sometimes even if they manage to return the money. Give me that he took the number of disputes about pre-sale contracts in the hundreds. By law, a preliminary contract is ineffective if the due date of principal has not signed. Delay time putting the house - a phenomenon in St. Petersburg, widespread, and often a situation where people expect their new apartments for several years. But while the house is not delivered and ownership is not transferred, the transaction is not concluded, and this gives grounds to demand advance payment back. And in most cases, such claims are met - only in relation to the company, "LEC" Last year the servants of Themis reviewed more than 180 cases. One recent decision on the dispute with the company "LEK - company number 1" St. Petersburg City Court on May 23. The developer must pass the house in operation before the end of 2009, not later than 90 days after receiving permission to transfer the apartment to the buyer, and within one month from the date of state registration of property - to conclude the main contract. However, in due time the house was not built. The Court rejected the arguments of lawyers of the company, "LEC", which was not going to return any funds paid or to perform its obligations under the construction of the house, nor compensate for the damage. True, buyers are not always able to defeat the construction companies. The same city court overturned the decision in favor of the spouses Grigoryevs solution - developer failed to prove that it can not generally be considered in court, because together with a preliminary agreement with the buyer LEKom also designed an agreement under which all disputes must be brought exclusively in a court of arbitration in Association property managers. The verdict of the body thereof "commercial justice" will be final and not subject to appeal and binding on the parties. The first of this innovation in 2008, faced interest holders who have purchased apartments in residential complex "Count Orlov," and signed a preliminary agreement with one of its subsidiaries LEKa - by "G.S.K.." "But even such a measure for the developer is too heavy - on the sites of district courts found claims that citizens are served by trying to force the company" LEK "abide by the decision of the arbitral tribunal!" - Said the novel - one of the shareholders' Count Orlov, "a volunteer providing support for "the victims of the builder. In addition, in some cases, the courts agree with the arguments of the developer and retain more customers with the victim and compensation at a rate of 20 percent. Ambiguous are the servants of Themis and the issue of interest for the late return of the sums: at best, consumers can recover a penalty at the rate of refinancing, which is lower than offered by some banks interest on deposits, and many times less in mortgage interest rates, which are forced to pay Many purchasers of the apartments. Efforts and attempts to recognize the preliminary contracts null and void, since they are essentially a sham transaction ("cover" equity contract). This position is shared by the City Prosecutor's Office and other oversight bodies, such decisions (including in respect of the same LEKa) imposed and some district courts. However, in the St. Petersburg City Court believe the opposite - one of the most recent decisions on this issue was made in respect of "House in the Middle": "The developer and the participant may enter into a shared construction contract pre-participation in the joint construction that does not require and should not be State Registration ", - stated appeal board municipal court. Violated and the violation will be! It is estimated Meteleva Catherine, St. Petersburg number of developers offering buyers a preliminary contract is relatively small, "Those that have - are sufficiently accurate. At the very least, the number of complaints against such developers in the past year has declined sharply. Apparently this is connected, including a tightening of control over the primary market by the state. " In fact, a year ago (June 21), legislators clarified the administrative responsibility for such violations, allowing regional authorities to impose fines of up to one million rubles for each violation of the individual shareholders. And absolutely any offense admitted receiving money through the purchase of housing in the circumvention of the law on joint construction, as if such transactions are not named. In St. Petersburg, powers of control delegated to the developers for the construction committee. "Every year we carry out verification of developers in attracting funds of individuals and their target spending on construction of houses, - says Oleg Ostrovsky, head of monitoring and supervision in the field of participatory construction. - Currently in production of the arbitral tribunal found 17 cases challenging the decisions of administrative liability. They were all excited for "House Story", which was fined a total of $ 11.5 million rubles for raising funds from citizens of the preliminary contract of sale. The Committee had reviewed four companies that are attracted to real estate investors money to build houses - the leaders of these organizations were also brought to administrative responsibility. The total amount of fines was 2.4 million rubles, of which 2.3 million are already listed in the budget of St. Petersburg. " All in terms of construction committee in 2011, 14 such inspections: "In addition, to the construction companies that violate the requirements of the legislation in the field of participatory construction, are carried orders to eliminate violations with a view to further prevent these situations," - says Oleg Ostrovsky. It should be noted that the authorities apply sanctions to negligent builders rather uneven. So, for example, tough sanctions from the construction committee was subjected to "House Story", but no judicial decision on the claims to equity holders of the company's journalist "Fontanka" could not be found. While LEC officials apparently did not see fit to bring to administrative responsibility. Future - for direct sales is possible that developers will soon receive from the servants of Themis "carte blanche": June 30, the Supreme Arbitration Court of Russia will consider a draft resolution that recognizes the legitimate sale and purchase agreements have not yet existing real estate. If such a legal position and will be recognized by the courts of general jurisdiction, then the builders no longer needed as work within the law № 214-FZ, and look for a workaround (or impose preliminary contracts, etc.) - you can simply sell the apartments in the future homes. That is legally secondary and primary market will be in one piece. It is unclear whether market participants take advantage of this opportunity. After all, if the seller (developer) did not have time within the prescribed period to build a house, take him up and carry out state registration of rights to the created object, then the buyer will be able to reclaim the amount paid and the interest on it, as well as compensation for damages (including difference in the value of the property in case of appreciation). Experience shows that not all construction companies in St. Petersburg are ready to take responsibility for their mistakes and miscalculations, and therefore are unlikely to want to use a legal and easy way to sell homes.
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