Ten Reasons to termination of contracts of investment in construction, and contract equity participation in the construction of apartment houses and other real estate often, and this is natural, the citizens are trying to buy a new home with the lowest possible cost. The most common way to purchase housing and commercial premises in the primary market in recent years, financing the construction of a dwelling house or office building. When a contract for the purchase of housing in newly built house there are many peculiarities in the relations with the citizens of the developer (hereinafter - the equity holders), the ignorance of which can lead to rupture of the previously signed agreement to purchase the apartment and, consequently, the loss that may be incurred by citizens who have invested their funds to purchase an apartment in the house not yet built. Let's look at the main situations that arise in real estate investors in the relationship with the developer, which will eventually lead to the cancellation of contracts for the purchase of housing in newly built house. 1. Ignorance of the citizens of legislation in the first place, many people simply have no idea on the law and features of the existing practice under which the contractor enters into a covenant with them to purchase houses in a newly built house. Prior to April 1, 2005 this type of relationships (in housing not yet built a residential house) are generally not resolved by the effective law. Contracts for the purchase of housing in such buildings under construction can be called differently: involvement in investing in the construction of a residential home, an investment contract for the construction of the property, the agreement on equity participation in investment construction of residential houses, co-investment agreement, etc. If permission to build a house was obtained by the developer prior to April 1, 2005, all of his relationships with the shareholders resolved the signed agreement, as well as the Decree of the Plenum of the Supreme Court on September 29, 1994 № 7 "On the practice of court cases on consumer protection" (in the red. November 21, 2000) and the generalization of the practice of examination by courts of the Russian Federation Minister of disputes between citizens and organizations raise funds for the citizens of apartment buildings construction (September 19, 2002). Things are quite different, if permission for construction of a house or, for example, the cottage settlement was obtained after the developer of April 1, 2005, inclusive. At such relationship is subject to the Federal Law of 30.12.2004 N 214-FZ "On Participation in the shared construction of apartment buildings and other real estate and on Amendments to Certain Legislative Acts of the Russian Federation" and has developed in connection with the application of this law jurisprudence. For brevity, all contracts for the purchase of newly built housing in a residential home, we will in the future, called the equity contracts in construction. The vast majority of people entering into a contract to purchase real estate developers of housing under construction, do not stretch out into the details of the legal regulation of their relationships with developers. As a result, many people simply do not know what exactly they have rights in relation to their counterparty on the contract - the builder, or find out about it late - which is often the main reason for the dissolution of the previously concluded agreement for apartments to be built. For example, knowing that the arbitral tribunal seized of the recognition of the developer bankrupt, many people are trying to quickly terminate the prisoners with the builder contracts to build equity, and as soon as possible reclaim previously paid their money. However, if the inmate contract with the builder citizens share in the construction of apartment houses is subject to the Federal Law of 30.12.2004 N 214-FZ "On Participation in the shared construction of apartment buildings and other real estate and on Amendments to Certain Legislative Acts of the Russian Federation "that under these circumstances, there is no reason to terminate this contract immediately, because even in the event of bankruptcy of the developer such interest holders will receive their apartments on the property right, the way even with some delay in time from the other (the newly appointed for the construction of a dwelling house) builder . Termination of the same contract with the builder during its bankruptcy may simply lead to a situation where interest holders will lose the right to claim on newly built apartment in this apartment building, and at the same time not be able to achieve a return on their money from the builder, who at some point becomes insolvent. 2. Change the value of the acquired dwelling, or the additional levies from interest holders in the construction Often developers require the shareholders to make an additional payment for the purchased apartment in a newly built house. The reasons for bringing such claims can be very different. This change in the cost of building materials, and poor financial condition of the developer, and the need to perform any construction work, not previously recorded real estate developer in determining the overall cost of the work on the construction and improvement of dwelling house (or the whole neighborhood, which is being built this house) and much, much more. As a result, the cost of purchased housing can increase quite dramatically, making it unprofitable acquisition or simply not appropriate, because the vast majority of the shareholders enter into a contract to purchase housing in newly built house with one single purpose - to provide apartments in the house, new building with minimal costs. Such a change in the apartment prices upwards, can cause the dissolution of the citizens of their contract with the developer. However, not always with such requirements for additional payments to the developer purchased a newly built house in a housing are legitimate and justified. Most often, the developer is just trying to close the gaps in its budget (formed by no means the fault of shareholders) at the expense of citizens who invested their life savings into building a new house. It is quite legitimate and reasonable can be recognized only to the following reasons for bringing the developer requirement to make an additional payment for housing under construction: 1) change (increase) in the area of apartments built on the results of measurement of BTI. In the agreement the equity in the building must contain a clear indication of the overall cost of an apartment on the basis of its area, and determined the cost per square meter of floor area. If such an indication on the cost of one square meter of apartments under construction in the contract to build equity is not contained, the requirements of the builder of any surcharges to the base area of an apartment changes can not be substantiated, and 2) Change the layout of apartments under construction, for example, by visiting apartment balconies or terraces. However, in this case, the contract should contain a binding purchase price for the so-called project area of the apartment (not to be confused with the total area, of which, balconies and loggias are not included) and should be a separate paragraph stipulates that an increase in the project area is flat ground to increase the total price of the apartment. In all other cases, the presentation requirements of the developer of any additional payments or compensation is the basis for statements or claims shareholders to terminate the contract and refund all paid the builder cash, or a basis for filing a court claim for recognition of property rights to the apartment. 3. The lack of state registration of the contract to build the equity interest holders is often required from the developer of state registration concluded by them with the last contract equity participation in the construction of a dwelling house, and without waiting for clearance of such registration, required to terminate the contract signed with them and paid the cashier to return the builder money. Actually, according to paragraph 3 of Article 4 of the Federal Law of 30.12.2004 N 214-FZ "On Participation in the shared construction of apartment buildings and other real estate and on Amendments to Certain Legislative Acts of the Russian Federation," the equity contract is in writing form, is subject to state registration and is made from the time of registration. Therefore, if the contract is equity in the building, enclosed in accordance with the requirements of the Federal Law of 30.12.2004 N 214-FZ "On Participation in the shared construction of apartment buildings and other real estate and on Amendments to Certain Legislative Acts of the Russian Federation" was not a procedure state registration, it is not signed and can not terminate, but can only require the developer refund under Article 1102 of the Civil Code - as the amount of unjust enrichment of the builder. However, as mentioned above, if permission to build a residential home builder has been received prior to April 1, 2005, on the relationship between shareholders and the developer claims the Federal Law of 30.12.2004 N 214-FZ "On Participation in the shared construction of apartment buildings and other real estate and on Amendments to Certain Legislative Acts of the Russian Federation "does not apply. Accordingly, in this case require clearance from the developer of state registration of the agreement the equity in the building can not be simply because the developer can not provide this registration agreement. Thus, the absence of state registration of the agreement the equity in home construction (contract investment, co-investment, etc.) in any case may not be legal basis for making the developer claims the termination of such contract. 4. Exceeding the deadlines construction of a residential house, the suspension of construction quite often grounds for termination of the contract equity real estate investors in the construction of a residential home builder is a violation of the terms of the completion of an apartment building or even the suspension of its construction. Formally, the citizens have the right to show the developer the requirement to terminate the contract in regard to the late completion of construction on the basis of Article 451 of the Civil Code, ie due to the substantial change of circumstances. However, as a rule, citizens seeking to terminate the contract to build equity rather than due to breach of the terms of its implementation of the builder, but in connection with those arising in connection with these rumors in the media instance and the Internet about a possible insolvency (bankruptcy) of the developer. Such rumors, often unfounded, since it is due to lack of funding contractor may suspend construction work at the facility. While on the other hand, construction delays may be associated with temporary difficulties in economic activity and the builder does not constitute a direct threat to the critical shareholders. There must be clear potential consequences of financial problems for the builder and the consequences associated suspension of the facility shared construction. First, as mentioned above, it is necessary to determine the order to ascertain whether you signed a contract to build equity by the Federal Law of 30.12.2004 N 214-FZ "On Participation in the shared construction of apartment buildings and other real estate and on making Amendments to Certain Legislative Acts of the Russian Federation. " If so, then the reasons for the termination of the contract there is no equity, provided that your contract has passed state registration procedure. In this case, the apartment in a newly built house is in your mortgage and no one except you can not be transferred on completion of a house. Moreover, if in this situation you do not cancel a contract to build equity, then, after the construction of residential houses and transfer you to the ownership of this house, for delay in completion you will be able to collect from the developer's penalty in the amount of the one fiftieth Central Bank refinancing rate of the Russian Federation effective on the date of the obligation of the contract price for each day of delay. However, if you signed a contract to build equity is not subject to the Federal Law of 30.12.2004 N 214-FZ "On Participation in the shared construction of apartment buildings and other real estate and on Amendments to Certain Legislative Acts of the Russian Federation", then it is possible the following ways to protect the violated rights: 1) If the house has been actually built, it made finishing the work and connect all communication, but the house itself is not yet officially put into operation (this sometimes happens when the developer can not fully meet its obligations for the remaining objects specified in the contract with the local administration of the investment contract), then you can file a lawsuit against you for the recognition of ownership of the builder you purchased an apartment as the object under construction, 2) If the house is not built and there is no reason to believe that the developer could soon be declared bankrupt, you can wait for the resumption and the subsequent completion of the house, and then apply for a builder to court action to recover from him the penalty of the RF Law "On Protection of Consumer Rights" at a rate of three percent for each day delay in the implementation of commitments, but not more than one hundred percent of the total price you signed the contract with the builder, and 3) If the house is not built and there is already clear prerequisites to the fact that the developer will be declared bankrupt (for example, the arbitral tribunal will be taken up by the claim for recognition Developer bankrupt), then you can request termination of the contract to build equity and a return made to your builder in cash money, or compensation for damages to you under Article 15 of the Civil Code, which equals the market value of similar housing on the day of submission of your claim to terminate the contract . 5. Double-sale apartments is likely that, when buying a home under construction house citizens interest holders may face double and sometimes triple, and sales of apartments in the houses standing. If you signed a contract equity participation is subject to the Federal Law of 30.12.2004 N 214-FZ "On Participation in the shared construction of apartment buildings and other real estate and on Amendments to Certain Legislative Acts of the Russian Federation" and passed the stage of state registration, you can do not worry about the possible double sales during the construction of an apartment house, as your claim to being built apartment registered in the Unified State Register of Real Estate Rights and Transactions (hereinafter - the Unified State Register), and no one else can make a EGRP record of their rights to the same apartment. If your contract equity participation in the construction are not registered by the government because of the presence of EGRP record someone else's rights to the apartment, you may immediately require the return made by the developer for the apartment you money, because at this stage already It will be apparent that the right of property you this flat will never not be able to get. A few other things, if you signed a contract equity participation does not fall under the Federal Law of 30.12.2004 N 214-FZ "On Participation in the shared construction of apartment buildings and other real estate and on Amendments to Certain Legislative Acts of the Russian Federation" . As a rule, on such interest holders (not subject to state registration) treaties recognize the existence of claims of third parties to the previously paid for their apartment, at the time of registration of the builder of documents for state registration of ownership of real estate investors in the apartment. 6. Ten Reasons to termination of contracts of investment in construction, and contract equity participation in the construction of apartment houses and other real estate often, and this is natural, the citizens are trying to buy a new home with the lowest possible cost. The most common way to purchase housing and commercial premises in the primary market in recent years, financing the construction of a dwelling house or office building. When a contract for the purchase of housing in newly built house there are many peculiarities in the relations with the citizens of the developer (hereinafter - the equity holders), the ignorance of which can lead to rupture of the previously signed agreement to purchase the apartment and, consequently, the loss that may be incurred by citizens who have invested their funds to purchase an apartment in the house not yet built. Let's look at the main situations that arise in real estate investors in the relationship with the developer, which will eventually lead to the cancellation of contracts for the purchase of housing in newly built house. 1. Ignorance of the citizens of legislation in the first place, many people simply have no idea on the law and features of the existing practice under which the contractor enters into a covenant with them to purchase houses in a newly built house. Prior to April 1, 2005 this type of relationships (in housing not yet built a residential house) are generally not resolved by the effective law. Contracts for the purchase of housing in such buildings under construction can be called differently: involvement in investing in the construction of a residential home, an investment contract for the construction of the property, the agreement on equity participation in investment construction of residential houses, co-investment agreement, etc. If permission to build a house was obtained by the developer prior to April 1, 2005, all of his relationships with the shareholders resolved the signed agreement, as well as the Decree of the Plenum of the Supreme Court on September 29, 1994 № 7 "On the practice of court cases on consumer protection" (in the red. November 21, 2000) and the generalization of the practice of examination by courts of the Russian Federation Minister of disputes between citizens and organizations raise funds for the citizens of apartment buildings construction (September 19, 2002). Things are quite different, if permission for construction of a house or, for example, the cottage settlement was obtained after the developer of April 1, 2005, inclusive. At such relationship is subject to the Federal Law of 30.12.2004 N 214-FZ "On Participation in the shared construction of apartment buildings and other real estate and on Amendments to Certain Legislative Acts of the Russian Federation" and has developed in connection with the application of this law jurisprudence. For brevity, all contracts for the purchase of newly built housing in a residential home, we will in the future, called the equity contracts in construction. The vast majority of people entering into a contract to purchase real estate developers of housing under construction, do not stretch out into the details of the legal regulation of their relationships with developers. As a result, many people simply do not know what exactly they have rights in relation to their counterparty on the contract - the builder, or find out about it late - which is often the main reason for the dissolution of the previously concluded agreement for apartments to be built. For example, knowing that the arbitral tribunal seized of the recognition of the developer bankrupt, many people are trying to quickly terminate the prisoners with the builder contracts to build equity, and as soon as possible reclaim previously paid their money. However, if the inmate contract with the builder citizens share in the construction of apartment houses is subject to the Federal Law of 30.12.2004 N 214-FZ "On Participation in the shared construction of apartment buildings and other real estate and on Amendments to Certain Legislative Acts of the Russian Federation "that under these circumstances, there is no reason to terminate this contract immediately, because even in the event of bankruptcy of the developer such interest holders will receive their apartments on the property right, the way even with some delay in time from the other (the newly appointed for the construction of a dwelling house) builder . Termination of the same contract with the builder during its bankruptcy may simply lead to a situation where interest holders will lose the right to claim on newly built apartment in this apartment building, and at the same time not be able to achieve a return on their money from the builder, who at some point becomes insolvent. 2. Change the value of the acquired dwelling, or the additional levies from interest holders in the construction Often developers require the shareholders to make an additional payment for the purchased apartment in a newly built house. The reasons for bringing such claims can be very different. This change in the cost of building materials, and poor financial condition of the developer, and the need to perform any construction work, not previously recorded real estate developer in determining the overall cost of the work on the construction and improvement of dwelling house (or the whole neighborhood, which is being built this house) and much, much more. As a result, the cost of purchased housing can increase quite dramatically, making it unprofitable acquisition or simply not appropriate, because the vast majority of the shareholders enter into a contract to purchase housing in newly built house with one single purpose - to provide apartments in the house, new building with minimal costs. Such a change in the apartment prices upwards, can cause the dissolution of the citizens of their contract with the developer. However, not always with such requirements for additional payments to the developer purchased a newly built house in a housing are legitimate and justified. Most often, the developer is just trying to close the gaps in its budget (formed by no means the fault of shareholders) at the expense of citizens who invested their life savings into building a new house. It is quite legitimate and reasonable can be recognized only to the following reasons for bringing the developer requirement to make an additional payment for housing under construction: 1) change (increase) in the area of apartments built on the results of measurement of BTI. In the agreement the equity in the building must contain a clear indication of the overall cost of an apartment on the basis of its area, and determined the cost per square meter of floor area. If such an indication on the cost of one square meter of apartments under construction in the contract to build equity is not contained, the requirements of the builder of any surcharges to the base area of an apartment changes can not be substantiated, and 2) Change the layout of apartments under construction, for example, by visiting apartment balconies or terraces. However, in this case, the contract should contain a binding purchase price for the so-called project area of the apartment (not to be confused with the total area, of which, balconies and loggias are not included) and should be a separate paragraph stipulates that an increase in the project area is flat ground to increase the total price of the apartment. In all other cases, the presentation requirements of the developer of any additional payments or compensation is the basis for statements or claims shareholders to terminate the contract and refund all paid the builder cash, or a basis for filing a court claim for recognition of property rights to the apartment. 3. The lack of state registration of the contract to build the equity interest holders is often required from the developer of state registration concluded by them with the last contract equity participation in the construction of a dwelling house, and without waiting for clearance of such registration, required to terminate the contract signed with them and paid the cashier to return the builder money. Actually, according to paragraph 3 of Article 4 of the Federal Law of 30.12.2004 N 214-FZ "On Participation in the shared construction of apartment buildings and other real estate and on Amendments to Certain Legislative Acts of the Russian Federation," the equity contract is in writing form, is subject to state registration and is made from the time of registration. Therefore, if the contract is equity in the building, enclosed in accordance with the requirements of the Federal Law of 30.12.2004 N 214-FZ "On Participation in the shared construction of apartment buildings and other real estate and on Amendments to Certain Legislative Acts of the Russian Federation" was not a procedure state registration, it is not signed and can not terminate, but can only require the developer refund under Article 1102 of the Civil Code - as the amount of unjust enrichment of the builder. However, as mentioned above, if permission to build a residential home builder has been received prior to April 1, 2005, on the relationship between shareholders and the developer claims the Federal Law of 30.12.2004 N 214-FZ "On Participation in the shared construction of apartment buildings and other real estate and on Amendments to Certain Legislative Acts of the Russian Federation "does not apply. Accordingly, in this case require clearance from the developer of state registration of the agreement the equity in the building can not be simply because the developer can not provide this registration agreement. Thus, the absence of state registration of the agreement the equity in home construction (contract investment, co-investment, etc.) in any case may not be legal basis for making the developer claims the termination of such contract. 4. Exceeding the deadlines construction of a residential house, the suspension of construction quite often grounds for termination of the contract equity real estate investors in the construction of a residential home builder is a violation of the terms of the completion of an apartment building or even the suspension of its construction. Formally, the citizens have the right to show the developer the requirement to terminate the contract in regard to the late completion of construction on the basis of Article 451 of the Civil Code, ie due to the substantial change of circumstances. However, as a rule, citizens seeking to terminate the contract to build equity rather than due to breach of the terms of its implementation of the builder, but in connection with those arising in connection with these rumors in the media instance and the Internet about a possible insolvency (bankruptcy) of the developer. Such rumors, often unfounded, since it is due to lack of funding contractor may suspend construction work at the facility. While on the other hand, construction delays may be associated with temporary difficulties in economic activity and the builder does not constitute a direct threat to the critical shareholders. There must be clear potential consequences of financial problems for the builder and the consequences associated suspension of the facility shared construction. First, as mentioned above, it is necessary to determine the order to ascertain whether you signed a contract to build equity by the Federal Law of 30.12.2004 N 214-FZ "On Participation in the shared construction of apartment buildings and other real estate and on making Amendments to Certain Legislative Acts of the Russian Federation. " If so, then the reasons for the termination of the contract there is no equity, provided that your contract has passed state registration procedure. In this case, the apartment in a newly built house is in your mortgage and no one except you can not be transferred on completion of a house. Moreover, if in this situation you do not cancel a contract to build equity, then, after the construction of residential houses and transfer you to the ownership of this house, for delay in completion you will be able to collect from the developer's penalty in the amount of the one fiftieth Central Bank refinancing rate of the Russian Federation effective on the date of the obligation of the contract price for each day of delay. However, if you signed a contract to build equity is not subject to the Federal Law of 30.12.2004 N 214-FZ "On Participation in the shared construction of apartment buildings and other real estate and on Amendments to Certain Legislative Acts of the Russian Federation", then it is possible the following ways to protect the violated rights: 1) If the house has been actually built, it made finishing the work and connect all communication, but the house itself is not yet officially put into operation (this sometimes happens when the developer can not fully meet its obligations for the remaining objects specified in the contract with the local administration of the investment contract), then you can file a lawsuit against you for the recognition of ownership of the builder you purchased an apartment as the object under construction, 2) If the house is not built and there is no reason to believe that the developer could soon be declared bankrupt, you can wait for the resumption and the subsequent completion of the house, and then apply for a builder to court action to recover from him the penalty of the RF Law "On Protection of Consumer Rights" at a rate of three percent for each day delay in the implementation of commitments, but not more than one hundred percent of the total price you signed the contract with the builder, and 3) If the house is not built and there is already clear prerequisites to the fact that the developer will be declared bankrupt (for example, the arbitral tribunal will be taken up by the claim for recognition Developer bankrupt), then you can request termination of the contract to build equity and a return made to your builder in cash money, or compensation for damages to you under Article 15 of the Civil Code, which equals the market value of similar housing on the day of submission of your claim to terminate the contract . 5. Double-sale apartments is likely that, when buying a home under construction house citizens interest holders may face double and sometimes triple, and sales of apartments in the houses standing. If you signed a contract equity participation is subject to the Federal Law of 30.12.2004 N 214-FZ "On Participation in the shared construction of apartment buildings and other real estate and on Amendments to Certain Legislative Acts of the Russian Federation" and passed the stage of state registration, you can do not worry about the possible double sales during the construction of an apartment house, as your claim to being built apartment registered in the Unified State Register of Real Estate Rights and Transactions (hereinafter - the Unified State Register), and no one else can make a EGRP record of their rights to the same apartment. If your contract equity participation in the construction are not registered by the government because of the presence of EGRP record someone else's rights to the apartment, you may immediately require the return made by the developer for the apartment you money, because at this stage already It will be apparent that the right of property you this flat will never not be able to get. A few other things, if you signed a contract equity participation does not fall under the Federal Law of 30.12.2004 N 214-FZ "On Participation in the shared construction of apartment buildings and other real estate and on Amendments to Certain Legislative Acts of the Russian Federation" . As a rule, on such interest holders (not subject to state registration) treaties recognize the existence of claims of third parties to the previously paid for their apartment, at the time of registration of the builder of documents for state registration of ownership of real estate investors in the apartment. In this case, the following solutions to the problem: 1) You can declare the contract avoided and claim back from the developer before he paid his rent money or damages to the scheme discussed above, under Article 15 of the Civil Code, and 2) If there is reason to believe that the builder is insolvent, it can be in court to try to make a claim for recognition of your ownership of the apartment already constructed on the basis of Article 398 of the Civil Code. If the developer has obligations to the same apartment at the same time in front of several real estate investors, we have established the following order of priority of claims for recognition of ownership of the disputed flat: I. The first requirement for recognition of ownership of the disputed flat interest holders may claim that the apartment has already been transferred to Acceptance of transfer; II. If none of the shareholders controversial apartment is not passed on to Acceptance of transfer, priority in recognition of property rights for the disputed apartment is of the holders, with whom the developer had entered into an agreement; III. In the event that it is impossible to determine with which of the contenders for the disputed apartment developer had entered into an agreement, the priority is that of the shareholders who have previously filed an action in court for recognition of ownership of the apartment.
In any case, file a claim for rescission of the contract and refund money to the developer base of a double sale of the apartment is only provided if you have exhausted all other possibilities for the recognition of your ownership of the disputed apartment. 6. The need for interest holders in the immediate return of previously made cash interest holders Sometimes there is a need to urgently redirect previously made it to the cashier developer funds to pay for kikah any other obligations. For example, the holders, had problems with the return of a bank loan or interest holders in the family suddenly, there was life situation that requires urgent investments large sum of money. I must say that current legislation does not provide the above circumstances as a ground of avoidance equity in the building. Therefore, request a refund, of course, possible, but only if you concluded in the contract with the developer equity in the building directly provides for the possibility of unilateral termination of contract by the shareholders. However, be aware of the fact that, as a rule, the contract to build equity as a separate item specifies the penalty interest holders liable for early termination of the contract without a valid reason, and prescribed a special procedure for early termination of the contract. Typically, the equity instruments in the building, indicated a certain fixed amount of the fine, which is deducted from the interest holders to return funds, and provides an indication of the fact that a refund is not immediately after signing of the shareholders agreement and the developer to terminate the contract, but only after how to find a developer for the apartment of a new interest holders, and will receive money from him to have a new contract equity participation.
No comments:
Post a Comment