August 15, 2011 came into force on federal law, which is a completely new way regulates the relations between developers and real estate investors: № 210-FZ "On Amending the Federal Law" On Insolvency (Bankruptcy) "of Article 17 and 223 of the Arbitration Procedure Code with regard to establishing the features of bankruptcy developers raise funds participants in the construction. " First. Now the developer is any company that attracted money holders, even if such activities are the construction company was not legitimate, that is, developer did not have rights to land (ownership, lease, sublease), the developer shall be written agreements to participate in the joint construction, and any other agreements, including preliminary contract concessions, investment, joint venture, etc. Also, now it does not matter, whether the developer or other proprietary property right to object construction (earlier it was mandatory). Second. Disputes with real estate investors to recognize the right of apartments in unfinished or unfinished house will now be treated exclusively in arbitration courts in the immediate bankruptcy of the builder. In addition, the trial may take place not only at the location of the builder, but the place of construction and the location of the majority shareholders. The third. To participate in the process of recognition of property rights in bankruptcy must necessarily involve all direct and indirect participants of construction - participating investment contract (co-investors), the administration and state and municipal authorities exercising control and supervision in the field of participatory construction (in Moscow - Mosgosstroynadzor, in the Moscow region - Ministry for building complex). Fourth. To require an apartment can not only persons who have concluded contracts for participation in the joint construction, but those who bought apartments, parking and offices on the basis of: - the contract of sale of premises - a preliminary contract of participation in the joint construction or pre-contract sale of other premises - Loan Agreement, the obligations for which a refund of the amount of the loan be terminated with the transfer of the dwelling in an apartment building after its completion in the property - making money and (or) other property as a contribution to share capital of a limited partnership (limited partnership) with subsequent transfer of the dwelling in an apartment building after its completion in the property - a simple partnership to implement the construction of an apartment building with subsequent transfer of the dwelling in a block of flats in the property - the issuance of a bill for the subsequent payment for the dwelling in an apartment house - to make money in a building society in order to participate in the construction of apartment buildings - the conclusion of certain transactions involving the transfer of funds and (or) other property for the construction of an apartment building and the subsequent transfer of the dwelling in a multifamily home ownership. The fifth. Since the beginning of the bankruptcy process builder tribunal must give a ruling on the introduction of the procedure of bankruptcy in the registration services to an additional safeguard against unlawful transactions with real estate developer - bankrupt. Also, the arbitral tribunal in the process of dispute resolution recognizing the right of ownership for real estate investors for real estate or the award of funds shall be entitled to the unshakable assurance to shareholders for the subsequent execution of such a solution, namely to impose a ban on the conclusion of the lessor of the land lease; prohibition on state registration of the lease, as well as a ban on the disposal of the lessor according to land otherwise. The sixth. Arbitrage managers (representatives of the developer in the bankruptcy process) directly to equity holders are obliged to seek to inform them of the bankruptcy as a builder, and the rights of shareholders to claim the money or real estate. The seventh. Now, only the interest holders the right to choose, what requirements it will apply to the developer - to obtain ownership of the property (both unfinished and unfinished), or money for it. In this case, it is very important interest holders shall be awarded not only the amount that he once paid to the developer, but the real value of residential / non-residential premises on the date of submission of their claims. Conversely, if the value of the acquired property has decreased over time, interest holders must not award its market value, and the amount paid. All disputes in respect of the market value of the property settled on the basis of the reports of independent appraisers who are involved in processes as experts. Eighth. Now there will be two parallel groups of lenders, some of whom wish to apply for funds to other residential and nonresidential premises (the register of creditors: cash and transferring residential premises). Ninth. The cases recognizing the right for real estate investors for real estate are subject to review within 3 months. Interest holders are free to bring a court of arbitration to the developer the following requirements: - the recognition of the presence or absence of property rights, other rights or encumbrances in respect of real property, including assets under construction - Solicitation of real estate, including construction in progress, from unlawful possession - of the demolition of unauthorized buildings - on the recognition of transactions in respect of real property to be invalid or non-conclusion, the application of consequences of the invalidity of the transaction in respect of real property - the transfer of real property pursuant to an obligation to transfer its ownership in economic management, the operational administration or use - on state registration of transfer of title to real property. The tenth. Calculations with real estate investors will now be included in a separate, privileged - the third place, after payments to persons who have suffered harm, mental harm, there are debts on wages, severance pay, remuneration. All other creditors are relegated to fourth place and the right to claim the property awarded to them only after the claims of shareholders. Interest holders will be entitled to claim a refund of 25% (mortgaged) and 85% (not pledged) from the value of the property. Eleventh. The meeting participants in the construction may take a decision on the transfer of real estate investors the rights to the unfinished house with land under it, provided that a real estate investors of housing or consumer cooperative (for each separate unfinished house shall be established a separate co-op). In this case the transfer of members of the facility under construction can be carried out while respecting the following conditions: 1) the value of the rights to the builder object under construction and the land does not exceed by more than five percent of the aggregate amount of participants in the construction requirements included in the register of creditors' claims and the register of Transfer of premises, or three-fourths vote of creditors fourth stage, except for legal entities - participants in the construction, a decision to consent to the transfer facility under construction or on the deposit account of the arbitral tribunal made the money, 2) property, which remains in the debtor after transmission facility under construction, enough to cover current payments, creditors first and second stage or in a deposit account of the arbitral tribunal made money, and 3) in the register of creditors' claims are no claims of creditors who are not participants in the building, to obligations secured by a pledge right builder for facility under construction and land, or the specified creditors agreed to the transfer facility under construction or on the deposit account of the arbitral tribunal made money, and 4) after the completion of a particular facility under construction in the premises it is sufficient to meet the requirements of all participants in the construction in respect of a particular construction project included in the register of creditors' claims and the register of the transfer of dwellings, based on the terms of contracts providing for the transfer of premises. With the consent of the participant can transfer his building premises, differing in size, layout, location of the dwelling, the relevant provisions of the contract, including the transfer of premises, and 5) the object under construction belongs to the developer the right of ownership, 6) Land, in which the object is under construction, the developer owns the right of ownership or other proprietary right; 7) participants in the building decided to create a housing co-operative or other specialized consumer co-operative. Twelfth. After the transfer of half-built house co-op, the latter all the rights and obligations on completion of the house, also in favor of the cooperative's registered rights to the unfinished building and the land beneath it. Thirteenth. If the house where the apartment holders, completed, the court allowed the issue of transfer of such apartments real estate investors on the basis of the report the appraiser and the arbitration administrator. Transfer of participants residential construction can be carried out while respecting the following conditions: 1) the presence of feed in the manner prescribed by the legislation on urban planning permission for commissioning an apartment building, whose construction is completed, and 2) the builder and the participants in the building are not signed transfer acts or other documents on the transfer of participants residential construction, and 3) the cost of transmission of premises does not exceed by more than five percent of the aggregate amount of participants in the construction requirements included in the register of creditors' claims and the register of the transfer of dwellings, or three-fourths vote of creditors fourth stage, for except for legal entities - participants in the construction, a decision to consent to the transfer of participants in the construction of residential premises, or in a deposit account of the arbitral tribunal and made money, 4) property which is retained by the debtor after the transfer of participants residential construction, it is sufficient to cover current payments creditors first and second stage or in a deposit account of the arbitral tribunal made money, and 5) in the register of creditors' claims are no claims of creditors who are not participants in the building, to obligations secured by a pledge right builder for residential building, whose construction is completed, the land passed accommodations, or the specified creditors agreed to transfer the participants of construction of premises, or in a deposit account of the arbitral tribunal made money, and 6) construction of all the participants passed accommodation in accordance with the contractual terms providing for the transfer of premises, and transmitted premises is sufficient to meet requirements of all participants in the construction included in the register of creditors' claims and the register of the transfer of premises with the consent of the construction can be sent to him dwelling, differing in size, layout, location of the dwelling, the relevant provisions of the contract, including the transfer of the dwelling.
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