Disrupting the dates specified in the contract, you can go to court with a statement about the payment of penalties.
Especially relevant it becomes for those tenants, who has been tightened by the house for several months - it is possible to receive compensation in a considerable amount.
Penalty for the delay in the delivery of the house: the procedure
So, the delivery of the houses is skipped by the developer, you settled in the desired apartment with a delay, were forced to use in removable accommodation. Do not everyone know that in this situation you should
Dmitry Trataevsky Lawyer of the Project
In violation by the developer of the deadlines for the object of real estate under the contract of equity participation in construction, it is advisable to send a written claim to the developer. At the same time, the claims to recall that in addition to the responsibility, which is established by the Agreement, the Federal Law of December 30, 2004 No. 214-FZ (Ed. Dated July 13, 2015) "On participation in equity construction apartment houses and other properties and changes in some legislative acts Russian Federation"(With amended and add., Introductionful from 01.10.2015), the developer can be brought to justice established by the Law of the Russian Federation on" Protection of Consumer Rights "in the form of a fine of 50% of the amount awarded by the court in favor of plaintiff.
Before turning to court, you need to collect all the documents, make calculation, prepare a claim with reference to NPA. The more evidence you will have, the better. Special attention It is worth paying the size of the penalties, all its components must be calculated by unmistakably and is argued. It will be rejected if you have concluded an additional agreement with the contractor on transferring the deadlines for the delivery of housing.
But in order to as much as possible to state exactly your situation, you should contact a lawyer who can prepare all documents and submit your interests in court.
How to calculate a penalty for the delay of the delivery of the house
How to produce mechesummamm, which is supposed to you? For clarity, it is stomapped by an unstable example.
The apartment costs 5 million, the drawing is 30 days, the refinancing rate is 11%. The shareholder is a citizen, so the penalty is paid in double size:
Penalty \u003d 5000000/100% * 11% / 300 * 2 * 30 \u003d 110 000 rubles.
According to Article 6. Federal Law dated December 30, 2004 N 214-FZ (ed. dated July 13, 2015) "On participation in the share construction of apartment buildings and other real estate objects and on amending some legislative acts of the Russian Federation" (with amended and add., Intr. in Power from 01.10.2015) In the event of a violation of the transmission status provided by the Treaty of Provision, the participant of the share construction of the Oblast Construction Object The developer pays a participant in equity construction to the penalty (penalties) in the amount of one three hundred refinancing rates Central Bank Of the Russian Federation, operating on the day of the fulfillment of the obligation, on the price of the contract for each day of delay. That is, if one rate of refinancing was operated on the day of fulfillment of obligations, and during the delay period it changed, it is necessary to fulfill two calculations for two periods with different refinancing bid.
Process of commissioning
In practice, there is a situation where the developer is trying to give you an apartment that has not commissioned. It is unlawful, such actions contradict the legislation. Before passing the accommodation to you, the developer is obliged to get permission to enter the house. If you sign an act of acceptance before this time, you can still not be a full owner by registering an apartment in BTI. In this case, you are also entitled to write a claim.
Whatever amounts you assume as a penalty, the court often reduces their size, guided by internal beliefs. That this does not happen, be sure to apply detailed and reasonable to the artwork, which will allow you to achieve a high amount of compensation.
Dmitry Trataevsky Lawyer of the Project
In practice, the court truly often reduces the amount of claims declared by the plaintiff, including the size of the penalty itself. However, it should be remembered that according to the Decree of the Russian Federation, the Resolution of the Plenum of the Russian Federation No. 81 "On some issues of application of Article 333 Civil Code Of the Russian Federation, "the court has the right to reduce the size of the penalty only if there is such an application by the defendant. This statement must be justified. The content of such an application should accurately indicate the disproportion of the penalty to the consequences of the violated obligation.
Opinions of judges (judicial decisions on specific cases)
Lawyer Gordon A.E.
What if the developer did not give an apartment on DDU on time?
Get advice and assistance to a lawyer.
Get a penalty from the developer - everything is not just not just
Advertising slogans of law firms scream promise, guarantee to recover from developers for DTA stagnation, fines and "moral harm." In the negotiations, they confidently juggle the articles of the Law 214-FZ, the law on the protection of consumer rights, calculate customers the significant amounts of legitimate permissions increase the amount per finer and moral harm and receive prepayment from credible clients to their services.
But how much the penalty can actually count on the DDA?
According to the legislation in certain cases, the developer is obliged to pay a strain (penalties). When and how much - installed in the law 214-ФЗ. But it should also be said, calculated according to the law 214-ФЗ, the amount of the penaltile will not always receive. Especially if you go to court.
In most cases, the shareholders motivate the requirements of the suspension of the passage to convey the object - an apartment.
According to Part 1 of Article 6 of the Law 214-FZ "On Share Participation in Construction", the developer is obliged to convey the participant of the equity construction of an apartment (the object of shared construction) is no later than the term that is provided for by the Treaty.
For violation of the transfer period of the apartment, the shareholder is part of 2 tbsp. 6 of the law for the developer established responsibility: the developer pays a penalty (penalties) in the amount of one three hundred refinancing rate of the Central Bank of the Russian Federation, operating on the day of the fulfillment of the obligation, on the price of the contract for each day of delay.
If a citizen is a participant in shared construction, a penalty (penalties) is paid by the developer in a double size.
Consider an example of calculating the penalty, as it usually demonstrates the lawyers on DDU, and what is obtained by the decision of the courts.
Example: The developer, under the terms of the DDU treaty, pledged to obtain permission to enter a residential building into operation in the 1st quarter of 2015. The real estate object must be transferred to the shareholder on the act of receiving and transmission within 2 months from the date of receipt of the commissioning permit.
Under the conditions, the last day of the transmission of the object - May 31, 2015 (03/31/2015 - the last day of obtaining permission to enter a residential building into operation, we add two months to the transfer of the object by the participant of equity construction).
In fact, the apartment was transferred to the shareholder on the transfer act of September 01, 2015. Accordingly, for the period of delay - from June 1, 2015 to September 1, 2015, the participant of shared construction arises the right to receive a penalty established by. 2 tbsp. 6 of the Law 214-FZ "On Share Participation in Construction". (Such a penalty is called "legal").
Calculation of a penalty (according to Part 2 of Article 6 of Law 214-FZ):
Penalty \u003d (contract price) x (number of days of delay) x 8.25% x 1/300,
Where 8.25 is the refinancing rate of the Bank of Russia in the period of delay.
For the example described above, take the price of the apartment - 2,000,000 rubles.
When the apartment is transferred to the distribution of September 01, 2015, the exaggeration is 92 days (from 05/31/2015 to 01.09.2015)
Thus, the size of the penalty, if a citizen is a participant in shared construction, will be: 2,000,000 (the price of the contract) x 92 (number of days of delay) x 8.25% (refinancing rate) x 1/150 x 2 \u003d 101 200 rubles.
The amount of the penalty is 101 200 rubles. - The amount calculated in accordance with the law. But this amount the developer will never pay the distribution officer for a goodwill!
What will happen in reality
In all those who have known cases, upon presentation of the Decisions of the penalty, the first, which makes the developer, is silent, does not respond to the requirements or is trying to avoid payments under any prepositions, including manipulating the terms of the Treaty Terms of Transfer.
In court, the developer is even easier.
The fact is that there is Article 333 of the Civil Code of the Russian Federation, according to which the court has the right to reduce the penalty, if the penalty to be paid is clearly disproportionate the consequences of the impairment of the obligation.
In the overwhelming number of cases, the court decreases, and the substantially required by the distribution is a penalty.
What to do, what would the court have reduced the penalty?
From the moment of writing a claim, correctly motivate your requirements: take into account the specific circumstances of your case and objectively approach the formation of requirements.
1) Prove the period of delay. It is necessary for sure, in accordance with the terms of the contract, calculate the established date of transfer of the apartment.
2) Prove a significant delay duration.
* Note, in the appeal definition below, before a year, the court 1 is not significant, the appeal (Moscow City Court) agreed with this.
3) Prove the guilt of the developer in delay. That is, proving the lack of objective reasons for delaying the transfer of the apartment.
4) Prove the importance of delay for the shareholder. For example, when paying a DTD loan, in the period of delay interest is charged, the delay itself has a value for a real estate.
5) Prove its material losses as a result of the transfer of an apartment in a later date. For example, for the period of construction, the shareholder rents housing and is forced to pay it during the period of delay.
If these circumstances are missing, or the costs of them are not significant, the court will most likely reduce the penalty and precisely until the size of your actual expenses.
Why?
According to Article 10 of the Law 214-FZ "On Participation in Share Construction" Losses of the shareholder due to the improper execution of the DDA Agreement to the developer are subject to reimbursement of the last premium. That is, in a part that is not covered with a penalty. This means that according to the law 214-ФЗ, the penalty in DDU is compensatory.
Such a legal position is guided by the courts:
Penalty by virtue of Art. 333 of the Civil Code of the Russian Federation in its legal nature is compensatory and cannot be a means of extracting profit and enrichment.
In addition to the penalty, the shareholder may require the payment of a fine by law on the protection of consumer rights and compensation for moral damage. But it is possible to implement this right if there are two circumstances at the same time: 1) If the developer has crushed the transfer of the apartment and 2) the developer refused to voluntarily pay the penalty.
Accordingly, to recover a fine and moral damage, a shareholder, if the developer is delayed, you need to contact the developer with a claim in which to demand the payment of a penalty.
For the failure to fulfill the legitimate consumer requirements, according to the Consumer Protection Act, a penalty of 50% of the amount awarded by the Court in favor of the consumer was established. And in this case, the consumer has the right to demand compensation for moral damage on the basis of Art. 15 of the law. At the same time, the amount of compensation in the law is not installed, and how to determine it, too.
OUTPUT:
In the event of a delay of the developer to transfer the apartment (or another object for DD) to the shareholder, the loller can really count on receiving a penalty in the amount of actually incurred losses over the period of delay. In the event of a significant exceeding the amount calculated according to the law of the penalty over the sum of the actual losses incurred, the shareholder can count on compensation only in the amount of actual loss, and by the court decision.
However, total amount Recovery can be increased by the court by 50% at the expense of the fine under the law on the protection of consumer rights. The amount of non-moral damage compensation by Russian courts are accumulated in minor sizes.
The basis for the recovery of the fine is the refusal of the developer to pay a penalty, and this is the basis for compensation for moral damage.
Formally accrued amounts of penalties in the amount established by law 214-ФЗ, the courts are significantly reduced at the request of developers on the basis of Art. 333 of the Civil Code of the Russian Federation.
So according to one of the cases considered on appeal by the Moscow City Court (the appellate definition of the G.Thel No. 33-17413) on the dispute about the reduction of the penalty for the DTA, the Board of Judges noted:
In accordance with Art. 330 Civil Code of the Russian Federation a penalty is recognized by a law or agreement money amountwhich the debtor is obliged to pay the creditor in case of non-fulfillment or improper fulfillment of the obligation, in particular the delay of execution.
According to Article 333 of the Civil Code of the Russian Federation, the court has the right to reduce the penalty, if the payment payable is clearly disproportionated by the effects of violation of the obligation. Thus, civil law provides for a penalty as a method for ensuring the fulfillment of obligations and measures of property responsibility for their non-fulfillment or improper performance, and the right to reduce the amount of the penalty is provided to the court in order to eliminate the explicit disproportion to the consequences of violation of obligations.
At the same time, due to para. 2 p. 34 Resolutions of the Plenum of the Supreme Court of the Russian Federation from Date No. 17 "On the consideration by courts of civil cases on disputes on the protection of consumer rights" Application of Art. 333 of the Civil Code of Consumer Protection Affairs is possible in exceptional cases and at the request of the defendant with a mandatory indication of the motives for which the Court considers that the decrease in the size of the penalty is permissible.
During the consideration of the case in the court of first instance, the defendant declared a decrease in the size of the penalty and fine, referring to the objective circumstances for which the construction period was increased.
Having established that the size of the definition paid to be paid is clearly disproportionable to the consequences of a violation of the obligation, given the specific circumstances of the case, the fact that the deadline for transferring the object has expired, and the notice of the readiness of the object was sent to the plaintiff, the date, the act of the presence of deficiencies, which would prevent the adoption of the facility, In accordance with Part 5 of Art. 8 FZ No. 214 -FZ was not compiled, the period of delay, which was less than one year, the court rightfully applied Article 333 of the Civil Code of the Russian Federation to the size of a penalty and fine.
In accordance with Article 15 of the Law of the Russian Federation "On the Protection of Consumer Rights", moral damage caused to the consumer due to the violation by the manufacturer (by the Contractor, Seller, an authorized organization or authorized individual entrepreneur, the importer) of the rights of the consumer, provided for by laws and legal acts of the Russian Federation, regulating relations in the field of consumer protection, is subject to compensation for the injury in the presence of its fault. The amount of moral damage compensation is determined by the court and does not depend on the amount of compensation for property harm.
Moral damage compensation is carried out independently of the compensation of property harm and losses incurred by the consumer. Point 45 of the Resolution of the Plenum of the Supreme Court of the Russian Federation from Date No. 17 "On Considering Civil Affairs for Consumer Protection Consumer Protection Consumer" Harm with a sufficient condition for satisfying the claim is the fact that consumer violations. The amount of moral damage is determined by the court regardless of the amount of compensation of property harm, in connection with which the size monetary compensationAsked for non-pecuniary damage to compensation, it cannot be addressed to the cost of goods (work, services) or the amount of penalty to be recovered. The size of non-moral damage to the consumer compensation in each particular case should be determined by the court, taking into account the nature of the moral and physical suffering caused from the principle of intelligence and justice.
Thus, the amount of compensation is determined by the court.
Given the degree of moral suffering of the plaintiff related to the violation of the consumer's rights, the requirements of rationality and justice, the court of first instance concluded that the claimant compensation for moral damage in the amount of the amount.
According to another case (the appellate definition of 05/10/2017. Case No. 33-17172 / 17) Removing the amount of a recovery penalty court noted:
The arguments of appeals, on the unreasonableness of the size of the recovery penalty, cannot serve as the grounds for the cancellation of the court decision, since the penalty is by force of Art. 333 of the Civil Code of the Russian Federation for its legal Nature It is compensatory and cannot be a means of extracting profit and enrichment. The opportunity to reduce the amount of the penalty in the case of its excessiveness compared with the consequences of the impaired obligation is one of the legal methods provided for in the law, which are directed against the abuse of the right to determine the amount of the penalty, so in part 1 of Art. 333 of the Civil Code of the Russian Federation is not about the right, but about the duties of the court to establish a balance between the measure of responsibility applied to the violator and negative consequencesAfter completing the lender as a result of the violation of the obligation. By placing the issue of reducing the size of the penalty in its explicit disproportion to the consequences of violation of the obligation to court, the legislator proceeded from the constitutional prerogative of justice, which can be recognized only under the condition that it meets the requirements of justice. Taking into account the foregoing, the court of first instance, taking into account that the claimed amount of the penalty in the amount of .... rub. It is clearly disproportionable to the consequences of violation of the obligation came to the reasonable conclusions to reduce the penalty before ... RUB. In accordance with Art. 333 of the Civil Code of the Russian Federation, taking into account the arguments of the defendant.
Thus, the quantity can be required by the amount established by law, but the court makes a decision taking into account the specific circumstances of the case, and always reduces the penalty, in many cases significantly.
