The construction of apartment buildings and other real estate intended for the residence of citizens is one of the most attractive areas of work in construction. Mandatory requirements for work in this area are established by Art. 2-3 of the Federal Law of December 30, 2004 No. 214-FZ "On participation in shared construction of apartment buildings and other real estate and on amendments to certain legislative acts of the Russian Federation" (hereinafter - Law No. 214-FZ) and other legislative acts. At the same time, all participants in shared construction bear certain risks. Let's talk about them.

A company that has experience of at least three years of participation in the construction of apartment buildings with a total area of ​​at least 10,000 square meters has the right to raise funds from citizens. m in the aggregate in the presence of obtained permits for putting objects into operation as a developer, and (or) technical customer, and (or) general contractor.

To carry out the construction of a real estate object, the developer must own, on the right of lease, on the right of sublease or, in cases provided for by law, on the right of free use of a land plot. In addition, the developer is obliged, in accordance with the procedure established by law, to obtain a building permit and publish a project declaration. The developer must have project documentation, a positive expert opinion on it, form their own funds in the amount of at least 10% of the planned construction cost.

In addition, the developer must also meet other mandatory criteria established by Art. 2-3 of Law No. 214-FZ. Additional requirements for developers were introduced by Federal Law No. 218-FZ of July 29, 2017 “On a Public Law Company for the Protection of the Rights of Citizens Participating in Shared Construction in the Event of Insolvency (Bankruptcy) of Developers and on Amendments to Certain Legislative Acts of the Russian Federation” (hereinafter referred to as the Law No. 218-FZ). Let's analyze them.

New requirements for developers

According to Law No. 218-FZ, developers must make contributions to the compensation fund, which is administered by the Public Law Company "Fund for the Protection of the Rights of Citizens - Participants in Shared Construction". At present, the amount of the contribution is 1.2% of the price agreed by the parties for each agreement for participation in shared construction, which provides for the transfer of residential premises, and can be changed no more than once a year. Registration of an agreement on equity participation in construction is carried out after the developer pays the specified fees, for which the public company provides the registrar with information at his request. The funds collected from the developers can be used to pay compensation to investors, to maintain the fund, as well as to finance activities to complete the construction of construction in progress.

Participants in shared construction will have the right to expect to receive compensation from the compensation fund, provided that the developer is declared bankrupt by the arbitration court, bankruptcy proceedings are opened against him and there is evidence of payment of mandatory contributions. The amount of compensation is determined on the basis of the purchase price paid by the investor under the contract of equity participation in construction, but not more than the maximum amount of compensation. The contributions themselves, which developers will pay to the fund from each agreement on equity participation in construction, they will obviously shift to equity holders. However, in any case, the introduction of such a mechanism will strengthen the guarantees of their legal protection, and increased requirements for developers and the amount of their own funds will eliminate unstable players from the market.

It is calculated as the product of the total area of ​​all residential premises in one multi-apartment building and (or) a block-built residential building, consisting of three or more blocks to be transferred to a citizen participating in shared construction, but not more than 120 sq. m, and an indicator of the average market value of 1 sq. m of total living area. At the same time, rates on the primary housing market in the relevant subject of the Russian Federation are taken into account, the value of which is determined in the period in which the contract was concluded by the authorized body (Article 13 of Law No. 218-FZ). The maximum amount of the compensation payment is low, but at least it is not subject to personal income tax in the generally established manner, although amendments have recently been adopted to the current legislation of the Russian Federation to exempt this payment from taxation in accordance with Federal Law No. amendments to part two of the Tax Code of the Russian Federation).

Termination of the developer

The authorized body may, in a judicial proceeding, suspend the activities of the developer to attract funds from investors. Such a measure is applied for violation by the developer of the deadline for the transfer of residential premises to investors within three months from the moment when he was supposed to fulfill such an obligation, if he does not comply with the mandatory requirements provided for by Decree of the Government of the Russian Federation dated April 21, 2006 No. 233 "On the standards for assessing the financial sustainability of activities developer”, as well as for other violations.

This measure is exceptional and is applied only as a last resort, when the authorized body has sufficient grounds for this, provided for in Art. 23 of Law No. 214-FZ. At the same time, its application is impossible without taking into account all the circumstances of the case and the behavior of the developer himself, assessing the actions that he takes to properly fulfill his obligations.

Example

The developer made a delay in the transfer of residential premises in an apartment building to investors due to the failure to complete the construction, but sent them a proposal to conclude additional agreements to extend the term, and even concluded them with someone.

Under such circumstances, the court pointed out that the use of the measure in question would negatively affect the financial position of the developer, in fact, it could lead to the impossibility of further construction, violation of the deadlines for putting the object into operation, and therefore there is no sufficient need for its use. Such a measure will not only not contribute to the restoration and protection of the rights of investors, but will also lead to even more unjustified negative consequences, which is unacceptable.

(Resolution of the Arbitration Court of the Volga District dated June 26, 2017 No. Ф06-21670/2017)

Forms of attracting funds from citizens

Legal forms of attracting funds from citizens who are non-professional investors, the law calls the conclusion of an agreement on participation in shared construction, the issuance of housing certificates, as well as participation in housing construction and housing savings cooperatives. This list is enshrined in paragraph 2 of Art. 1 of Law No. 214-FZ.

In practice, unscrupulous developers try to circumvent these rules by using bill of exchange schemes with the conclusion of a preliminary agreement and the issuance of a bill, which is later accepted as payment for housing, a cash loan agreement, under which the return is made in the form of a compensation, as well as other methods.

In the construction industry, a preliminary agreement is often used to circumvent the established requirements aimed at protecting investors, but the courts, in the event of a dispute, can reclassify it into a main sale and purchase agreement or even a shared construction agreement, using certain criteria. Thus, the design of a preliminary contract in civil circulation is intended to fix the obligations of the parties to conclude the main contract in the future. This obligation can be secured by a forfeit, a security deposit, a deposit, and in other ways (Article 329 of the Civil Code of the Russian Federation), while the parties have the right, if they wish, to supplement the preliminary agreement and other conditions at their discretion, for example, include in it the provisions of another transaction, making it mixed (Clause 3, Article 421 of the Civil Code of the Russian Federation).

However, they should take into account that the specifics of the preliminary agreement does not imply the inclusion in it of the elements of the main agreement, which it is aimed at concluding in the future. Otherwise, conditions are created for its re-qualification into the main contract with all the ensuing consequences, given that the legal nature of the contract is determined depending on the essence of the obligations expressed in it, and not on how it is named or other external attributes (Article 431 of the Civil Code RF).

Recall that back in 2011, in judicial practice, an approach was formed in relation to the turnover of real estate objects under construction. If the parties have concluded an agreement named by them as a preliminary one, according to which they undertake to conclude in the future, on the conditions provided for by it, the main contract for the sale of real estate, which will be created or acquired subsequently, but at the same time, the preliminary agreement establishes the obligation of the acquirer of the property before the conclusion of the main agreement to pay the price of real estate or a significant part of it, the courts must qualify it as a contract for the sale of future real estate with the condition of advance payment.

Disputes arising from this agreement are subject to resolution in accordance with the rules of the Civil Code of the Russian Federation on the contract of sale (clause 8 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 11, 2011 No. 54 “On some issues of resolving disputes arising from contracts for real estate that will created or acquired in the future”; hereinafter referred to as Decree No. 54). This approach is aimed at protecting the rights of investors who acted in good faith and actually fulfilled their obligation to pay to the seller, gives them the opportunity to obtain a more effective remedy due to the possibility of forcing the seller to fulfill the obligation to transfer the thing, bypassing the preliminary procedure for forcing the conclusion of the main contract.

Not only courts are oriented to the application of this approach, but also registration authorities that, within the framework of their established competence, carry out legal examination of transactions submitted for registration of rights and encumbrances. When conducting an audit, the registration authority is obliged to approach the study of documents not formally, but to assess the essence of the legal relations that have arisen, expressed in the terms of the transaction of the applicants, named by them as a preliminary contract, but in fact constituting a contract of sale (resolution of the Arbitration Court of the Moscow District of 21.02.2017 in case No. A41-31100/16).

Thus, the presence in the preliminary contract of a condition on the payment by the buyer of all or a significant part of the purchase price makes it possible to qualify it as the main contract. At the same time, this approach also applies to the case when the payment function under the terms of the contract is performed by a security deposit, credited by the seller towards payments under the main contract (resolution of the Arbitration Court of the Moscow District of May 31, 2017 in case No. A40-132425 / 16). Taking into account the fact that the courts consider the payment and deduction of the purchase price by the seller as a security deposit as a criterion for the main transaction, this may also be evidenced by the payment by the buyer of the deposit, which also has a payment function.

The concept of a significant part of the purchase price is an estimate, and in each specific case it is determined by the court. At the same time, the buyer may, in any case, insist on qualifying the transaction as the main contract if, under its terms, he has paid any sums of money to pay for the performance due from the seller under the main contract. The inclusion of such a settlement clause in the transaction does not, in principle, allow it to be considered as a preliminary contract, since its subject matter is exhausted by the obligation to conclude the main contract (clause 1, article 429 of the Civil Code of the Russian Federation).

The presence of additional conditions relating to the main contract deprives the agreement of the property of a preliminary contract, although in practice the court may also take a formal approach, considering that the clarifications contained in Resolution No. be interpreted broadly. The given legal position will not be applied by the court in the case when it is not about a future, but an already existing thing (Appeal ruling of the Rostov Regional Court dated August 26, 2014 in case No. 33-11390 / 2014).

On the other hand, if the preliminary agreement contains not just a condition on the transfer of the apartment in the future, but a direct indication that the buyer, after making the payment and concluding the main agreement, will be able to obtain ownership of an apartment in an apartment building under construction, such an agreement can be reclassified into an equity participation agreement in construction. Within the meaning of Art. 1 and part 2 of Art. 27 of Law No. 214-FZ, this regulatory legal act of the Russian Federation regulates relations related to the attraction of funds from citizens for the shared construction of apartment buildings and (or) other real estate objects, construction permits for which were obtained after its entry into force, starting from April 1, 2005 .

This law also applies to relations that have arisen when, starting from the above date, transactions to raise funds from citizens in other ways. In particular, this includes preliminary contracts for the sale and purchase of residential premises in the construction site, investment agreements, loan agreements, obligations under which in terms of repayment of the loan are terminated with the transfer of residential premises after completion of construction to the property, agreements on joint activities for the purpose of construction and others. agreements.

However, if the investor’s funds are raised on the basis of several transactions, the subject composition for them must completely match, since otherwise the investor only has the right to claim against different companies for separate obligations, and not the opportunity to reclassify the transactions into an equity participation agreement in construction and achieve recognition of ownership of the financed real estate object (Appeal ruling of the Chelyabinsk Regional Court dated 04.05.2017 No. 11-5499/2017). In this case, the investor's ownership of the property cannot be based solely on the fact that he paid the purchase price to his counterparty. In addition, it is also necessary to take into account the content and execution of agreements concluded between all participants in legal relations (Appeal ruling of the Moscow City Court of 06/08/2017 in case No. 33-22377 / 2017).

A prerequisite for such qualification is the establishment by the court, taking into account the essence of the actual relations, that the parties really meant the agreement for participation in shared construction (Determination of the RF Armed Forces dated 10.05.2016 No. 78-KG16-13). This approach is currently approved in paragraph 1 of the Review of judicial practice in resolving disputes arising in connection with the participation of citizens in the shared construction of apartment buildings and other real estate, approved. Presidium of the Armed Forces of the Russian Federation dated 07/19/2017.

This contractual model provides the investor with significantly more guarantees, given his status as a consumer, but he may not rely on such tools as compensation fund funds, insurance and other ways to ensure the financial stability of the developer. This is due to the fact that he initially violated his rights by trying to offer a simplified version of the registration of relations in order to minimize the amount of his responsibility to the investor.

Deadline for handover

For violation of the deadline for the transfer of residential premises, the developer must pay the investor a penalty at the rate of 1/300 of the key rate of the Central Bank of the Russian Federation, which currently stands at 9%, of the amount of the overdue payment for each day of delay.

The procedure for determining this penalty is determined by paragraph 6 of Art. 5 of Law No. 214-FZ, but in practice the courts often reduce it on the basis of Art. 333 of the Civil Code of the Russian Federation if there is an application from the developer with justification of the reasons for the disproportion of the declared amount.

The investor may agree to conclude an additional agreement on the extension of the term for the transfer of the object, subject to additional preferences from the developer, for example, obtaining a larger living space with a minimum surcharge. Otherwise, the investor will have to pay extra for an increase in the total area of ​​the apartment compared to the projected area. This is due to the fact that all developers include such a condition in the contract, it does not contradict the law (Appeal ruling of the Moscow City Court of 06/02/2017 in case No. 33-18430).

When the parties conclude an additional agreement to the contract, which extends the previously established period for the debtor to fulfill its obligations, the creditor ceases to have the right to recover a penalty from him for the future. Meanwhile, for previously committed violations, the creditor is not deprived of the right to hold the debtor liable in the form of a penalty, unless the parties provided otherwise in the supplementary agreement itself in accordance with Art. 415 and 421 of the Civil Code of the Russian Federation.

This is due to the fact that the conclusion of an additional agreement with the establishment of a new deadline for the debtor to fulfill the obligation does not in itself cancel the violations committed by him earlier and does not exclude the possibility of collecting a penalty (clause 1, article 450 and clause 3, article 453 of the Civil Code of the Russian Federation). With the conclusion of an additional agreement, the debtor's obligation is not terminated, but is retained in an altered form. Accordingly, there are no grounds for the termination of the penalty, which provides it (Determination of the Supreme Court of the Russian Federation of August 31, 2017 in case No. 305-ES17-6839).

Evasion from putting the constructed facility into operation

Certain difficulties for the investor also arise in the case when the developer evades putting the constructed property into operation. If the house is actually completed, the apartment or other residential premises are transferred to the investor under the act of acceptance and transfer and fully paid by him in accordance with the terms of the concluded agreement, he has the right to file a claim for recognition of ownership of his property (Appeal ruling of the Samara Regional Court dated April 27, 2016 to case No. 33-5363/2016).

The investor can also confirm the actual receipt of the apartment in possession by other relevant and admissible evidence, for example, testimonies, appeals to the police and other law enforcement agencies, the documentary results of inspections from which can confirm this fact.

In relation to an object under construction, an investor can raise the issue of recognizing the ownership of a share both for a specific residential premises, if the object is actually completed and it can be allocated in it, or simply for a share in the right of common shared ownership. On the one hand, the provisions of the legislation on investments cannot be interpreted in the sense of vesting persons financing the construction of real estate with the right of ownership (including shared ownership) of the real estate being built at their expense (clause 4 of Resolution No. 54).

However, on the other hand, when assessing the situation of the affected participants in shared construction, the courts proceed from the need to effectively protect their rights and legitimate interests, which in this situation is possible by recognizing the ownership of a share in an object of construction in progress. In this case, the investor will be able to get at least something, while the named legal position, strictly speaking, concerns the group of investors who finance the construction of the property as a business activity, and not ordinary citizens (Determination of the Supreme Court of the Russian Federation of 01.24.2017 No. 89-KG16-10).

Investor Rights

Everyone's right to housing is expressly provided for in Part 1 of Art. 40 of the Constitution of the Russian Federation, and no one can be arbitrarily deprived of it. In this regard, the recognition of the right of a participant in shared construction to a share is the only form of protection of his rights, regardless of the fact that such a possibility does not follow directly from the provisions of Law No. 214-FZ. The right to bring such a claim is provided for in Art. 12 of the Civil Code of the Russian Federation and corresponds to the nature of the committed violation, contributes to the restoration of the violated rights of the investor, in contrast to liability claims, the satisfaction of which only states the abstract possibility of obtaining funds from the developer without any guarantee of their real receipt.

An additional argument in favor of the legitimacy of this approach are the provisions of the law on the investor's right to own, use and dispose of capital investment objects and their results. Capital investments are understood as investments in fixed capital (fixed assets), including the costs of new construction, reconstruction and technical re-equipment of existing enterprises, the purchase of machinery, equipment, tools, inventory, design and survey work and other costs.

This right of the investor is expressly provided for in Art. 1 and 6 of the Federal Law of February 25, 1999 No. 39-FZ “On investment activities in the Russian Federation carried out in the form of capital investments” and fully complies with the content of the property right enshrined in Art. 209 of the Civil Code of the Russian Federation (Appeal ruling of the St. Petersburg City Court of July 14, 2016 No. 33-8752/2016). The law does not exclude the possibility for an investor who has fully fulfilled his obligations to make investments to obtain ownership of their results by filing a claim for recognition of this right.

In such a situation, the legitimate interest of the equity holder is subject to protection by assigning him the status of a participant in shared ownership along with other co-owners. The court, when considering a claim for recognition of ownership, also takes into account whether the courts have previously satisfied similar claims of other participants in shared construction in relation to an object of construction in progress. This is necessary in order to ensure the principle of constitutional equality of everyone before the law and the court, all investors have the right to count on an equal amount of judicial protection of their interests (Resolution of the Arbitration Court of the Ural District of September 16, 2016 No. F09-8223 / 16).

An investor who is preparing for litigation in the case of recognizing his ownership of a share in an object of construction in progress must take into account one more very important nuance. The total area and number of storeys of the erected apartment building must fully comply with the data specified in the construction permit and project documentation, agreed by him in the prescribed manner with the competent authorities. In the absence of evidence of the legality of the construction of an object that differs in its characteristics from the original data, such a claim may be denied (Appeal ruling of the Moscow City Court dated July 20, 2017 in case No. 33-28034 / 2017). Initially, before choosing a developer, it is necessary to evaluate not only his financial condition, but also the implemented investment projects, the conscientious fulfillment of their obligations, so as not to face such a situation.

The investor can dispose of the received share in the right of common shared ownership of the object of construction in progress by any means that do not contradict the law, including donation, pledge, exchange and sale, as a contribution to the authorized capital of a business partnership or company, as a contribution under a simple partnership agreement . The investor bears the burden of maintaining such property, and is also entitled to participate in the meeting of owners when resolving issues related to their competence, if he exercises the rights of the owner in full (Determination of the Supreme Court of the Russian Federation of September 15, 2017 No. 307-ES17-4212).

In the event of a paid alienation of a share, the investor is obliged to fulfill the requirements for the preemptive right to purchase, which the law gives to the other participants in common property (Article 250 of the Civil Code of the Russian Federation). The investor has the right to force the developer in court to properly fulfill his obligations to complete the construction, register the right of common shared ownership of the object of construction in progress with the registration of ownership of his share in it.

In addition, he can also seek financial resources to complete the construction, with the subsequent attribution of his costs to the account of the faulty developer (decree of the Arbitration Court of the North-Western District of July 11, 2017 in case No. A56-50411 / 2016). This possibility is due to the fact that the recognition of the investor's ownership of a share in an object of construction in progress does not terminate the obligations of the developer under the contract of equity participation in construction concluded with him, nor does it relieve him of responsibility for the violations committed. This approach is consistent with the explanations set out in paragraph 13 of the Recommendations of the Scientific Advisory Board of the FAS Volga-Vyatka District "Problem aspects of the practice of applying insolvency (bankruptcy) legislation", approved. By the decision of the Presidium of this court, protocol No. 3 dated 19.06.2014.

The investor may also use other remedies depending on the specific situation, associate with other affected investors.

Thus, all owners of premises and shares in an object of construction in progress, based on the results of the general meeting, may decide to establish a cooperative or a legal entity in a different organizational and legal form to complete the construction. For this purpose, they may engage a contractor with the determination of the amount of additional contributions to pay for his work (Decision of the Birobidzhan District Court of the Jewish Autonomous Region dated June 16, 2017 in case No. 2-5 / 2017). The owner of a share in the ownership of an object under construction is obliged to participate in the costs of its maintenance in accordance with the cost estimate approved by the general meeting (Appeal ruling of the Volgograd Regional Court dated May 26, 2016 in case No. 33-7231 / 2016).

The investor will not be able to demand the separation of his share from the object of construction in progress and the recognition of ownership of a specific premises, the registration of this right in the USRN. Until construction is completed, if the parameters of the property have not been changed, the investor retains only a share in the right (Appeal ruling of the Sverdlovsk Regional Court dated 06/21/2017 in case No. 33-10289/2017). As a result of the satisfaction by the courts of the requirements of investors to recognize their ownership of shares in the object of construction in progress, the individual property right of the developer is converted into the remaining share in the right of common shared ownership.

The developer acquires the status of a participant in shared ownership along with investors and in this sense is on an equal footing with them. After the developer registers an unfinished construction object in the USRN, investors get the opportunity to formalize their ownership of the share. In any case, investors should strive to complete the construction of an apartment building and be prepared for additional costs, which, although unprofitable for them, are justified from the point of view of the pursued goal of obtaining a ready-made liquid object.

The prospect of remaining with a share in an unfinished house can hardly be called rosy, as well as the developer to have such an unsold object on his balance sheet in addition to the credit load. It makes no sense for the investor to refuse the contract of equity participation in construction and demand full compensation for losses: it is not known whether he will be able to recover anything from the developer at all and how stable his financial situation will be even in the medium term.

Example

In the practice of our company, there was a case when an investor was not ready to accept an apartment in an apartment building built and put into operation with significant shortcomings that required serious repairs, and considered the option of withdrawing from the contract. Moreover, according to the results of BTI measurements, the final area of ​​​​the apartment turned out to be 10 square meters. m more than the design, which entailed for him the obligation to pay 500,000 rubles.

The investor was not entitled to demand that the developer replace the apartment, since neither the law nor the concluded contract provided for such an opportunity, and in order to register the ownership right, he had to make an additional payment for additional meters. In this case, it made sense for the investor to accept the apartment under the act of acceptance and transfer and pay the difference, formalize the ownership and go to court to force the developer to eliminate defects. All shortcomings could be named in the act of acceptance and transfer or in a letter to the developer, given that even signing the act without objection does not deprive the investor of the right to state his claims in the future.

(Appeal ruling of the Chelyabinsk Regional Court on July 13, 2017 in case No. 11-8644/2017)

In the above example, if the developer evaded the obligation to eliminate defects in the apartment, the investor would be able to recover his expenses for their elimination.

Bankruptcy of the developer

More difficult for an investor is the situation when the developer not only violates its obligations, but when its financial position is so unstable that it is unable to meet its obligations. In the event of bankruptcy of the developer, the participants in shared construction, to which he has not fulfilled his obligations, get the opportunity to claim the inclusion of their monetary claims in the register of creditors' claims or the requirement to transfer the residential premises to the register of such claims.

By virtue of the direct instructions contained in paragraph 6 of Art. 201.1 of the Federal Law of October 26, 2002 No. 127-FZ "On Insolvency (Bankruptcy)" (hereinafter - Law No. 127-FZ), for investors, the arbitration court, which is in the proceedings on the bankruptcy of the developer, has the right to recognize the status of a participant in shared construction when using various fundraising schemes. This approach of the legislator is connected with the need to ensure equal legal protection for all investors.

The arbitration court has the right to take interim measures in the form of a ban on the conclusion by the lessor of a lease agreement for a land plot with a person other than the developer, and a ban on state registration of such a lease agreement, as well as a ban on the disposal of the land plot by the landlord in any other way (Article 201.3 of Law No. 127 -FZ). In addition, participants in shared construction have the status of secured creditors for their claims by extending the pledge to the right to lease a land plot and a real estate object under construction on it by virtue of clause 7.1 of Art. 16, paragraph 4 of Art. 134, Art. 138 and paragraph 2 of Art. 142 of Law No. 127-FZ.

If some investors have achieved recognition of their ownership of shares in an object of construction in progress, such shares are excluded from the bankruptcy estate and protected from claims of other creditors of the insolvent developer (Resolution of the Arbitration Court of the East Siberian District dated May 10, 2017 No. F02-977 / 2017).

Note!

Shares in an object of construction in progress, by their nature, do not meet the characteristics of a residential premises, and they are not subject to the effect of executive immunity provided for in paragraph 1 of Art. 446 Code of Civil Procedure of the Russian Federation. This concept is applied depending on the specific circumstances of the case, taking into account the behavior of the owner, who is the debtor in enforcement proceedings. The status of the dwelling as the only dwelling means that it is used by the debtor for living, but not for transactions with it, since the voluntary alienation of property means that the debtor himself does not consider it as such. Consequently, transactions with such residential premises are disputed on a general basis (Decree of the Arbitration Court of the Far Eastern District dated April 28, 2017 No. F03-1084 / 2017).

It is possible to seize a dwelling and even include it in the bankruptcy estate of the debtor (decree of the Arbitration Court of the North Caucasus District of June 17, 2016 in case No. A32-27904 / 2013).

In the remaining part, the developer retains a share in the right of common shared ownership in relation to the right to lease a land plot and a property. The right of pledge is also valid for those investors for whom the ownership of the share was not recognized (Determination of the Supreme Court of the Russian Federation of August 25, 2017 No. 307-ES16-20971). They become bankruptcy creditors and enter the bankruptcy process of the developer, where they have several options at their disposal on how to proceed.

Example

At a meeting of construction participants, a decision may be made to establish a housing-construction cooperative or other specialized consumer cooperative, the purpose of which is to complete the construction of an apartment building. To do this, construction participants will have to contribute additional funds to finance the relevant activities, while the transfer of an unfinished construction object is possible subject to a whole range of conditions and requirements. Among them, for example, the availability of the necessary property for settlements on current payments, on the claims of creditors of the first and second stages, in the register of creditors' claims there are no claims secured by a pledge of rights to an object of construction in progress and the right to lease a land plot (Article 201.10 of Law No. 127-FZ ).

If the apartment building is completed and the developer has received permission to put it into operation, the claims of participants in shared construction are repaid by transferring residential premises to them. A prerequisite for such a transfer is that such premises are sufficient to satisfy all requirements, and the remaining property of the developer is sufficient to pay off current payments, to settle the claims of creditors of the first and second stages, and other conditions provided for in Art. 201.11 of Law No. 127-FZ.

The construction object can also be sold at auction, and then participants in shared construction will be able to receive part of the investment, given that only 60% of the proceeds go to repay their claims (Article 201.14 of Law No. 127-FZ).

In addition, the rights and obligations of the debtor may be transferred to another developer to complete the construction in the manner prescribed by Art. 201.15.1-201.15.2 of Law No. 127-FZ. These methods of fulfilling the obligations of the developer apply only to residential premises, investors who financed the construction of non-residential premises are entitled to claim satisfaction of their requirements in the usual manner (decree of the Arbitration Court of the Volga-Vyatka District of August 16, 2017 in case No. A17-4841 / 2015).

PROTOCOL No. 14

general meeting of participants in shared construction (shareholders)

residential buildings No. 58 and 59 microdistrict. 36 Mytishchi

November 20, 2009 Mytishchi

The meeting was attended by:

Participants in shared construction, houses 58 and 59, consisting of 154 people.

Invitees:

1. Deputy Head of the Administration of the Mytishchi municipal district.

2. Head of the construction department of the Administration of the Mytishchi municipal district.

3. Head of the construction department of the Administration of the urban settlement of Mytishchi.

4. Representative of the Deafheads.

From customer:

5. General Director Development ".

From the General Designer:

6. CEO

From Investor:

7. General Director Spetsstroy ".

Elected Chairman of the meeting:

Elected Secretary of the Meeting:

Meeting agenda:

1. On the state of affairs with the implementation of Investment Contract 117D in terms of continuing the construction of houses 58 and 59.

Meeting minutes

1. The word has been given. Then they performed. The speeches were interspersed with questions from the meeting hall, which later developed into a pronounced emotional form of rejection by the meeting participants of the inconsistency of the speakers' answers and the general state of affairs with the continuation of the construction of houses 58 and 59.

Chairman of meeting

Meeting Secretary

Regulated by Federal Law No. 214.

The acquisition of housing by signing an agreement on equity participation in the construction of an apartment building remains one of the most popular options for improving the living conditions of citizens. However, payment for an object that has not actually been built creates a real risk for the buyer of the loss of property or financial resources. To this end, the state provides a system of guarantees aimed at protecting the rights of equity holders.

Legal status of the shareholder

The basic normative act in the sphere of regulation of housing construction is Federal Law No. 214-FZ, which determines the procedure for interaction between the developer and the equity holder, and also regulates the legal status of the parties.

In the process of concluding an agreement with a construction company, a citizen pays a certain cost of the object in exchange for the developer's obligation to build an apartment building and transfer one or more premises in it to the buyer, on time and of proper quality. This relationship gives rise to significant buyer risk:

1. an agreement of this kind is made on the terms of full or partial prepayment, i.e. the price paid does not allow immediate transfer of the object;
2. the developer's obligation to erect the building within the established time limit may be violated for objective and subjective reasons;
3. the termination of construction by the developer prevents the use of the apartment for its actual purpose.

Thus, from the first day of the term of the contract, the rights and interests of a participant in shared construction are constantly under threat of violation by the developer. Guarantees for the protection of citizens' rights are contained in Federal Law No. 214-FZ.

Legal means and ways to protect the rights of a participant in shared construction

Guarantees to protect the interests of a shareholder are an aggregate system of norms of the Civil Code of the Russian Federation and Law No. 214-FZ. Almost every method provides for the possibility of going to court to eliminate violations by the developer and bring him to justice.

Recognition of ownership of the property

For various reasons, the final deadline for the delivery of an object can be significantly violated on objective and subjective grounds. These circumstances include:

• the actual termination of the construction of the building at one of the stages of construction;
• refusal of the authorized body to issue a permit to put the building into operation, or the builder's evasion from obtaining such a document;
• termination of the activities of the developer organization, including due to the initiation of bankruptcy proceedings.

In this case, it is allowed to recognize the ownership right of the shareholder to the finished object (residential premises), or to the object of construction in progress. This possibility is regulated by Art. 8 of Law No. 214-FZ and Art. 218 of the Civil Code of the Russian Federation and is carried out in court.

The object of ownership will be:

1. actually built, but not put into operation apartment;
2. construction in progress;
3. share in the right of common ownership of a residential building.

Following the results of the trial, the citizen confirms the legality of the ownership of the acquired object and can issue title documents on the basis of a court decision.

Recognition of the transaction as invalid

Violation of the established procedure for concluding an agreement on shared construction and receiving funds from citizens is the basis for declaring the transaction invalid. Challenging the transaction will be carried out only in court according to the norms fixed in Art. 395 of the Civil Code of the Russian Federation and Art. 3 of Law No. 214-FZ.

The grounds for the invalidity of the transaction may be as follows:

• violation of the procedure for raising funds (for example, the absence of a shared construction agreement);
• violation of the conditions of architectural and design documentation during the construction of the building;
• discrepancy between the provisions of the contract and the norms of project documentation in terms of determining the characteristics of the object.

Based on the results of the consideration of the case in court, in favor of the participant in shared construction, the following can be recovered:

1. return of paid funds;
2. double interest for the use of funds;
3. documented loss.

The recognition of the transaction as invalid terminates the legal relationship between the developer and the shareholder, as a result of which citizens are deprived of the opportunity to receive a residential facility.

Damages

Violation of the deadlines for the delivery of the object, as well as the procedure for transferring the finished apartment to the shareholder, is the basis for recovering losses from the developer. This possibility is expressly provided for in Art. 10 of Law No. 214-FZ and provides the right to recover documented expenses related to the need to restore the violated right.

A typical example of such a situation may be the costs associated with renting housing during the completion of the facility. Recovery is carried out exclusively in court and only in respect of losses duly confirmed with the help of written evidence.

Recovery of a penalty in the form of interest

The requirement to pay a penalty is regulated by Art. Art. 6, 7 of Law No. 214-FZ and arises when the following circumstances occur:

• violation of the deadlines for the completion of construction, or the lack of consent of the shareholder to extend the specified period - the amount of interest is double the amount of 1/300 of the rate of the Central Bank of the Russian Federation for each day of delay;
• violation of the deadline for the elimination of imperfections in the residential premises, recorded in the act of non-compliance - the amount of the penalty is 1% per day of the cost of expenses incurred to eliminate imperfections, and in some cases of the total cost of the object.

In order to recover a penalty in court, it is necessary to have evidence of a violation of the deadline or quality characteristics stipulated by the contract. Recovery is carried out in a judicial proceeding, while other measures of responsibility may be the subject of a claim.

Recovery of compensation for moral damage

Since the legal relations of shared construction between citizens and the developer are fully subject to the requirements of the Law "On Protection of Consumer Rights", violation of the rights and interests of the shareholder may be accompanied by the recovery of compensation for moral damage.

The recovery of this type of compensation is carried out exclusively in court, while the amount of compensation will be determined by the court on the basis of the evidence presented. Legislation on consumer rights allows for the possibility of recovering compensation for moral damage in the presence of the very fact of violation of the rights of citizens.

Collection of penalties

Article 13 of Law No. 214-FZ provides the right to recover a fine from the developer for an unreasonable refusal to satisfy the legal requirements of the shareholder. To recover this fine, it is necessary to prove the legitimacy of the claims in court.

The amount of the fine depends on the total amount of recovered damages, interest, etc., and amounts to 50% of the amount awarded by the court. This type of responsibility is one of the most effective ways to influence the observance of the rights of citizens in the process of shared construction.

Unilateral refusal to fulfill the terms of the agreement by the shareholder

One of the most important guarantees of observance of the rights of citizens in the process of legal relations of shared construction is the possibility of unilateral refusal to fulfill obligations. Such grounds are regulated by Art. 9 of Law No. 214-FZ:

1. significant violations of the qualitative characteristics of the apartment, making it impossible to use the object for its main intended purpose;
2. failure to eliminate defects in the apartment within a reasonable time;
3. violation of the general term for the transfer of an apartment for more than two months;
4. violation of the procedure for notifying a shareholder of the termination of a surety agreement.

These circumstances significantly violate the interests of citizens, who are largely deprived of what they had the right to count on when concluding a contract.

In a judicial proceeding, termination of contractual relations is allowed on the grounds set forth in Art. 9 of Law No. 214-FZ:

• a complete stop or suspension of the construction of an object if there are grounds to believe that the completion of construction will not be completed;
• change by the developer of architectural and design documentation, as a result of which there was a change in the total or living area of ​​​​the dwelling by more than 5%;
• a significant change in the common property of the building or auxiliary non-residential premises of the house.

Termination of an agreement on equity participation in construction implies the obligation of the developer to return the amount paid by citizens at the conclusion of the contract. In addition, double interest is charged.

Participation as a creditor in a developer's bankruptcy case

If the developer has signs of insolvency and insolvency, bankruptcy proceedings may be initiated at the request of creditors or authorized state bodies. After initiating bankruptcy proceedings by an arbitration court and posting information about the progress of the case, citizens have the opportunity to file their own claim against the debtor in the register of creditors.

Such a requirement may be expressed in one of the following forms:

1. obligation in monetary terms, based on the value of funds paid under the contract and all types of penalties;
2. the requirement for the actual transfer of housing (including the object of construction in progress).

Consideration of the claims of all creditors will be carried out in accordance with the rules of Law No. 127-FZ “On Bankruptcy”, taking into account special rules in the field of legal relations of shared construction.

At the stage of consideration of the insolvency case of the developer, the arbitration court has the right to involve as a party to the process a legal entity that actually manages the funds received from citizens. In this case, the chances of receiving compensation increase significantly, since at the expense of these funds, partial or full compensation for the losses of citizens can be carried out.

Assistance of state bodies in protecting the rights of equity holders

In addition to special means and methods of protection, citizens participating in shared construction have the opportunity to apply to authorized state institutions, including law enforcement agencies. The grounds for such an appeal can be very different:

• refusal to provide information that is mandatory for legal relations of shared construction;
• impeding the acceptance of the object after the completion of construction;
• evasion from signing legally significant documents;
• other grounds for infringement of the rights and interests of citizens.

Response measures on the part of state authorities can be expressed both in the form of a written demand or request, and initiation of administrative or criminal cases. State and municipal institutions have no right to evade consideration of appeals and complaints of citizens, and in some cases they are obliged to apply on behalf of equity holders to judicial or law enforcement agencies.

As an additional means of protecting the interests of private equity holders, the state has provided for the creation of special compensation funds, which will be formed at the expense of deductions from construction and contracting organizations working with citizens. The resources of these funds will be used to partially compensate for losses caused by a significant violation of the interests of citizens, and in some cases to complete the construction that has begun.

If you have any questions about the protection of the rights of participants in shared construction, then our duty officer is ready to answer them.

Published a 38-page review of the practice of resolving disputes initiated by equity holders. In order to bring legal approaches to uniformity, the Supreme Court reminds that the courts should never lose sight of: this is everything that concerns the conclusion and termination of shared construction agreements, as well as the liability that is provided for violation of the law in this area.

What developers need to remember when postponing construction

The ProMen company assigned Tamara Osipova * the rights of claim under the share construction agreement concluded with the Continent company - the latter was supposed to build an apartment building, but did not fulfill its obligations and handed over the objects with a delay. This caused the shareholder moral suffering, and for their compensation she applied to the Meshchansky District Court. In addition, Osipova demanded that the agreement with Kontinent be partially recognized as invalid, but she did not manage to achieve any of this. The appeal overruled the decision of the lower court, in particular, referring to the fact that when concluding the assignment agreement, the woman was familiarized with the notice of the postponement of the construction project. However, the civil board of the Armed Forces did not agree with this: it canceled the appeal ruling, indicating that the notification by the developer of the participant in shared construction of the postponement of construction does not entail a change in the terms provided for in the agreement on participation in shared construction. In order to change them, it is necessary for the developer and the participant in shared construction to conclude an agreement subject to state registration (determination of December 8, 2015 No. 5-KG15-156).

When the developer is not entitled to terminate the contract

The developer TekhnoStroyOlimp was supposed to transfer a one-room apartment to Gennady Melnikov * no later than December 31, 2013, and the man undertook to pay the cost of the apartment within three working days from the date of registration of the contract, which he did. Meanwhile, the company violated the terms of construction, and by the time of delivery, the actual area of ​​​​the apartment turned out to be less than that indicated in the contract. TekhnoStroyOlimp did not return the difference in cost to the equity holder and did not pay a penalty - moreover, she tried to get money from him. As a result, the company notified Melnikov of the unilateral termination of the contract. The man went to the Babushkinsky District Court, but that claim was not supported, as was later the Moscow City Court. The Supreme Court came to the conclusion that the unilateral refusal of the developer from the contract due to non-payment of payment by the participant in shared construction under the contract of participation in it is allowed only subject to the provisions of paragraph 4 of Art. 450 GK on honesty and reasonableness. Recognizing the lawful and justified unilateral termination of the contract by the defendant on the grounds of non-payment of funds by the plaintiff, the court should have assessed the validity of the unilateral refusal of the developer to fulfill the contract and the compliance of such refusal with the current legislation, indicated the Supreme Court and sent the case for review (determination dated April 19, 2016 No. 5- CG16-51).

Why initiative is punishable

Elizaveta Uranova* applied to the Leninsky District Court of the city of Cheboksary with a lawsuit against Chestr-Invest: the act of acceptance and transfer of the apartment had previously recorded the claims of the plaintiff against the company. Uranova considered that she should be charged a 100,000th penalty. During the proceedings, the developer, against the will of the woman, transferred 20,000 rubles to her. Later, the district court reduced the amount of the penalty to 18,000 rubles. and, taking into account the amount paid, refused to meet the requirements. When it came to the Supreme Court, he pointed out that the transfer by the developer to the participant in shared construction of sums of money after filing a claim cannot be grounds for refusing to collect a fine for non-compliance with the requirements of the consumer on a voluntary basis, and the burden of proving the disproportion of the penalty payable for the delay in the transfer of the shared object construction, the consequences of breach of obligation lies with the developer who violated obligations (definition No. 31-KG16-1).

Did not want to pay a penalty - get a fine

The Krasnodar regional public organization for the protection of consumer rights "Your Right" in the interests of Petr Mukhin * tried to recover from Center-Aktiv LLC a penalty under an agreement on participation in shared construction and a fine. The reason was the fact that the man did not immediately receive the apartment he paid for. The Prikubansky District Court of Krasnodar partially supported the claim, but the Krasnodar Regional Court overturned the lower court's decision regarding the recovery of the fine. The Supreme Court canceled the last ruling, indicating that if a participant in shared construction, before going to court, filed a legal and reasonable claim against the developer for payment of a penalty, which was not satisfied voluntarily, a fine in the amount of 50% of the amount of the specified penalty is subject to recovery from the developer (definition dated December 1, 2015 No. 18-KG15-177)

Developers must be responsible

The developer is obliged to transfer to the share construction participant its object, the quality of which complies with the terms of the contract, the requirements of technical regulations, project documentation and urban planning regulations, as well as other mandatory requirements. In case of failure to fulfill this obligation, a participant in shared construction has the right to demand the elimination of violations and bringing the developer to responsibility.

The Tatarstan public organization in the field of consumer rights protection "Consul", acting in the interests of Ksenia Fadeyeva *, filed a lawsuit against the developer to recover funds for the elimination of shortcomings in construction and compensation for moral damage due to the fact that he did not eliminate the shortcomings in insulation of the walls of the house. The appellate instance refused to satisfy the claims in full, stating that the work on the external insulation of the wall would lead to a change in the common property of the owners of the apartment building without their consent. The Supreme Court did not agree with this and recalled that, in accordance with Art. 7 of Law No. 214-FZ, in force at the time of the disputed legal relationship, the developer is obliged to transfer
participant of shared construction an object, the quality of which corresponds to the terms of the contract. If it was built with deviations from the terms of the agreement, then the participant in shared construction, at his choice, has the right to demand from the developer to eliminate the defects free of charge within a reasonable time, to reduce the price of the contract commensurately or to reimburse his expenses for
elimination of defects. Thus, the conclusions of the appeal are illegal (determination No. 11-KG15-9).

The court must read the contract

Regardless of the name of the contract, the court needs to establish its actual content, based both on the literal meaning of the words and expressions in it, and on the essence of the transaction. If it is established that what was actually meant was an equity participation agreement (DDU), the provisions of Law No. 214-FZ, including the penalties provided for by it, should be applied to it.

As an example, the Sun cites several cases at once. So, for example, the plaintiff went to court to recover from the developer a penalty for violation of the term established by the contract for the transfer of an apartment to a participant in shared construction. The court of first instance and the appeal denied the claim, since a preliminary sale and purchase agreement was concluded between the developer and the equity holder, and not an agreement on participation in shared construction, which means that the provisions of No. 214-FZ cannot be applied to the transaction.

The Supreme Court disagreed. Whatever the name of the contract, the funds under it were raised for the construction of an apartment in an apartment building, which means that these relations are regulated by Law No. 214-FZ. The Supreme Court pointed out that if the contract provides for "the construction by the defendant of an apartment building, its commissioning and the transfer of an apartment in the house under construction to the counterparty who contributed funds for the construction," this is an agreement for participation in shared construction ( definition No. 78-KG15-15).

In another described case, the court of first instance satisfied the claim for a penalty for the late transfer of an apartment under the same "preliminary" contract, and the appeal canceled this decision. pointing out that "the preliminary agreement obliges the parties only to conclude the main agreement in the future and does not provide for the obligation of the defendant to transfer the property." The Civil Collegium of the Armed Forces, canceling the decision of the appeal, advised to carefully study the actual content of such agreements, "taking into account the actual common will of the parties, the purpose of the agreement and the actual relations of the parties." If it turns out that the DDU was hidden under a different name, then the developer bears responsibility for it, provided for by Law No. 214-FZ, including the payment of a penalty ( definition No. 5-KG15-196).

In the following example, the DDU was concluded by two legal entities, and the applicant acquired the right to demand a penalty under an assignment agreement concluded with a shareholder organization. The court of first instance and the appeal did not satisfy the claims, considering that since the contract was initially concluded by the legal entity, and the plaintiff did not sign the agreement with the developer, the right to claim the original creditor passed to it in the volume and on the conditions that existed at the time of the assignment. The Supreme Court, in general, agreed with such conclusions, but considered that the compensation to the new creditor is still due and even explained how to pay it: for such relations, the norms of the law on the protection of consumer rights should be applied in the part not regulated by the law on participation in shared construction ( definition No. 77-KG15-2). Conversely, if a DDU is concluded between the parties, the consumer protection law does not apply to their relationship. Therefore, the Supreme Court refused to recover compensation for non-pecuniary damage and the recovery of a 50% consumer fine ( definition No. 18-KG15-214).

The contract may provide for the replacement of the apartment

When concluding a DDU, the developer is obliged to provide the shareholder with complete and reliable information about the consumer properties of the apartment that he is purchasing, and a description of the house, taking into account the environment, as well as information about the composition and location of common property in an apartment building (for example, electrical, sanitary , other equipment). The law on participation in shared construction does not provide for the replacement of an apartment with an equivalent one, but this can be provided for in the contract.

The plaintiff bought an apartment on the ground floor with a window view of the gas distribution cabinet. She did not like this neighborhood, and the woman demanded to replace the housing with an equivalent one, to recover compensation for moral damage and a fine for refusing to voluntarily satisfy the consumer's demand (see). The court of first instance and the appeal denied the claim, since both the house itself and the disputed closet outside the window were erected without violating SNIP and technical regulations. In addition, the court of appeal pointed out that Law No. 214-FZ does not oblige the developer to inform future owners about the location of various kinds of engineering equipment as part of the common property of an apartment building and coordinate its installation with them.

The SC did not agree with this. In his opinion, the current legislation obliges the seller to provide the buyer with full information about the product even before the conclusion, excluding the possibility of any doubts about its consumer characteristics (clause 1, article 10 of the law on consumer protection). And according to Art. 19 of the law on participation in shared construction, the developer must inform the shareholder about the project and its changes. Including, "on the composition and location of common property in an apartment building, for example, electrical, sanitary and other equipment." So, the plaintiff could demand compensation for moral damage and a fine, but not the replacement of an apartment, since the law on shared construction does not provide for such a way to protect rights ( definition No. 5-KG16-47).

When should shareholders join a cooperative?

The housing and construction cooperative, which replaced the bankrupt developer and was created to complete construction at the expense of equity holders, is obliged to accept them as members of this very cooperative.

The plaintiff entered into a DDU with the developer and paid money for an apartment in the house that he was building. Later, the construction company was declared bankrupt, and the unfinished house was transferred to the housing cooperative, which undertook to complete the construction. However, when the plaintiff asked to set off the amount paid to her under the agreement against the share contribution, and to accept her as a member of the cooperative, the housing cooperative refused, because by that time an extraordinary general meeting of the cooperative had taken place, at which it was decided: not to accept new members, even from the number of creditors of the bankrupt developer.

The court of first instance satisfied the requirements of the share construction participant, since she did not know anything about this general meeting, and the cooperative did not give her any opportunity to join its ranks. This decision was canceled on appeal, considering that the plaintiff applied to the cooperative too late, while the clauses of its charter, according to which the housing cooperative has the right to hold general meetings and stop accepting members, were not challenged. The Supreme Court canceled the ruling of the appeal, stating that since the cooperative was created to protect the rights of participants in shared construction by completing it and acquiring housing for the benefit of members of the cooperative on the basis of ownership, it was obliged to accept into its membership each shareholder who was recognized as the owner of the share contribution , corresponding to the contribution to the construction of the house transferred to the housing cooperative. To prove that a participant in shared construction did not have such a right, the cooperative must (definition No. 19-KG16-5).

* names and surnames of heroes have been changed

The full text of the review of judicial practice in resolving cases on disputes arising in connection with the participation of citizens in the shared construction of apartment buildings and other real estate, approved by the Presidium of the Supreme Court on July 19, 2017, can be found.

Participation in the shared construction of apartment buildings and other real estate objects is a way of exercising the right of everyone to housing, guaranteed by the Constitution of the Russian Federation (Part 2 of Article 40 of the Constitution of the Russian Federation).

In order to ensure the uniformity of legal approaches, on December 4, 2013, the Presidium of the Supreme Court of the Russian Federation approved the Review of the practice of resolving disputes by courts arising from the participation of citizens in the shared construction of apartment buildings and other real estate objects. Certain issues of judicial practice were covered in periodic reviews of the Supreme Court of the Russian Federation.

An analysis of the considered cases indicates that the legal positions contained in the reviews are generally taken into account by the courts when they are resolved.

Taking into account the special legal regulation of relations related to the attraction of funds from citizens for shared construction, due to their social significance, and also taking into account the changes made to the Federal Law of December 30, 2004 No. 214-FZ “On Participation in Shared Construction of Apartment Buildings and other real estate objects and on amendments to certain legislative acts of the Russian Federation” (hereinafter referred to as Law No. 214-FZ), the Supreme Court of the Russian Federation has prepared this Review of Judicial Practice.

Conclusion, execution and termination of the agreement for participation in shared construction

1. The court, regardless of the name of the contract, should establish its actual content, based both on the literal meaning of the words and expressions contained in it, and on the essence of the transaction, taking into account the actual common will of the parties, the purpose of the contract and the actual relations of the parties.

If it is established that the parties, when making a transaction that does not meet the requirements of Law No. 214-FZ, actually meant an agreement on participation in shared construction, the provisions of this law, including the penalties provided for by it, are applied to the transaction.

1.1. K. filed a lawsuit against the developer to recover a penalty for violating the contractual deadline for transferring an apartment in an apartment building to a participant in shared construction.

In support of the stated claims, it is indicated that under the assignment agreement, the company transferred to it the right to demand from the defendant the transfer of an apartment in an apartment building in accordance with the agreement concluded between him and the developer, called the preliminary sale and purchase agreement, under the terms of which the developer had to conclude the main contract with the company purchase and sale of an apartment in an apartment building under construction. Meanwhile, the obligation to transfer the apartment to the plaintiff was not fulfilled by the defendant, while the payment for the construction of the property was made.

The courts of first instance and appellate instance dismissed the claims.

At the same time, the court of first instance proceeded from the fact that the provisions of Law No. 214-FZ are not applicable to the legal relations of the parties, since a preliminary agreement was concluded between the developer and the company, the legal relations under which are not regulated by the said law.

The court of appeal, agreeing with the conclusions of the court of first instance, indicated that, in accordance with Article 384 of the Civil Code of the Russian Federation, unless otherwise provided by law or the contract, the right of the original creditor passes to the new creditor to the extent and on the conditions that existed at the time of transfer rights.

The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation did not agree with the conclusions of the courts, considering them based on the incorrect application of substantive law.

Thus, the courts did not take into account that the funds under the contract, to which K. was a party due to the change of persons in the obligation, were attracted for the construction of an apartment in an apartment building, therefore, these relations are regulated by Law No. 214-FZ.

In accordance with part 1 of article 1 of the said law, it regulates relations related to the attraction of funds from both citizens and legal entities for the shared construction of apartment buildings and (or) other real estate objects (hereinafter referred to as participants in shared construction) and the emergence of ownership rights to shared construction objects and common shared ownership rights to common property in an apartment building and (or) other real estate, and also establishes guarantees for the protection of the rights, legitimate interests and property of participants in shared construction.

The level of such guarantees in relation to a citizen-consumer cannot be reduced depending on the fact that his funds are attracted for shared construction by assignment of the right to claim.

If the rules contained in paragraph 1 of Article 431 of the Civil Code of the Russian Federation do not allow determining the content of the contract, the actual common will of the parties must be clarified, taking into account the purpose of the contract. In this case, all relevant circumstances are taken into account, including negotiations and correspondence preceding the contract, the practice established in the mutual relations of the parties, business practices, and the subsequent behavior of the parties.

Based on the foregoing, the court, regardless of the name of the contract, should have established its actual content, based both on the literal meaning of the words and expressions contained in it, and on the terms of the contract as a whole, taking into account the purpose of the contract and, therefore, take into account that, given the actual relations, the subject of the agreement is the attraction of funds for the construction of an apartment building.

Thus, the above agreement concluded between the company and the developer, even if it is a preliminary sale and purchase agreement, provides for the construction by the defendant of an apartment building, its commissioning and the transfer of an apartment in a house under construction to the counterparty who contributed funds for construction.

Thus, the conclusion of the courts that the provisions of Law No. 214-FZ are not applied to disputed relations is erroneous.

In connection with the transfer to the plaintiff of the rights of the original creditor (company) under the main obligation of the developer to transfer the apartment in the house built and put into operation, K. also received the right to collect a penalty from the moment of delay in the transfer of the apartment. The assignment agreement between the plaintiff and the company does not contain restrictions for the new creditor in the amount of transferred rights under the original agreement concluded between the company and the developer.

(Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated July 21, 2015 No. 78-KG15-15)

1.2. By the district court, the claims of P., who concluded preliminary contracts for the sale of apartments in an apartment building under construction, with the company, to recover from the defendant a penalty for the delay in the transfer of the construction site, a fine for non-compliance with the voluntary procedure for satisfying consumer requirements, were partially satisfied.

At the same time, the court of first instance relied, among other things, on the provisions of Law No. 214-FZ.

Revoking the decision of the court of first instance and adopting a new decision dismissing the claim, the court of appeal, guided by the provisions of Articles 429 and 445 of the Civil Code of the Russian Federation, indicated that the preliminary contract obliges the parties only to conclude the main contract in the future and does not provide for the obligation of the defendant to transfer property.

In addition, the court of appeal proceeded from the fact that the materials of the case do not contain evidence of the allocation of a land plot for the construction of a house, the issuance of a permit for its construction, and also noted that the company is not a developer.

The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation canceled the ruling of the court of appeal, indicating that in accordance with Part 1 of Article 4 of Law No. 214-FZ, Article 431 of the Civil Code of the Russian Federation, the court, regardless of the name of the contract, should establish its actual content, based on from the literal meaning of the words and expressions contained in it, and from the essence of the transaction, taking into account the actual common will of the parties, the purpose of the contract and the actual relations of the parties.

If the court establishes that the parties, when making a transaction that does not meet the requirements of Law No. 214-FZ, actually meant an agreement on participation in shared construction, the provisions of this law, including the penalties provided for by it, are applied to the transaction. Relations arising from such agreements concluded by citizens participating in shared construction exclusively for personal, family, household and other needs not related to entrepreneurial activities are subject to the legislation of the Russian Federation on the protection of consumer rights in the part not regulated by the said federal law.

Lack of information on the provision of a land plot for construction, lack of a building permit, etc. may testify to the violations committed by the defendant when attracting funds for the construction of an apartment building, but are not grounds for releasing him from liability for failure to fulfill his obligations.

(Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated January 19, 2016 No. 5-KG15-196)

1.3. A contract of equity participation in the construction of an apartment building was concluded between the developer and the organization participating in shared construction. After that, the organization entered into an agreement with T., under the terms of which T. acquired the right to claim an apartment from the developer, the cost of which was paid.

The developer violated the deadlines for the transfer of the apartment established by the contract.

By the decision of the court of first instance, a forfeit was collected from the developer in favor of T., the satisfaction of the claims regarding the recovery of moral damages and a fine for non-satisfaction of the consumer's requirements on a voluntary basis was denied.

The court proceeded from the fact that an agreement on shared participation in the construction of a residential building was concluded between two legal entities, the plaintiff personally did not conclude an agreement on participation in shared construction of a residential building with the developer, as a result of which the right of the original creditor passed to T. in that volume and on those conditions that existed at the time of the transition.

The Court of Appeal agreed with the findings of the Court of First Instance.

The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation established a violation of the plaintiff's rights when the courts resolved the issue of the transfer to a participant in shared construction - a citizen of the rights to receive ownership of an object of shared construction, arising from the assignment of rights of claim by a legal entity under an agreement on participation in shared construction, indicating the following.

By virtue of Part 1 of Article 6 of Law No. 214-FZ, the developer is obliged to transfer the shared construction object to the participant in shared construction no later than the period provided for by the agreement and should be the same for the participants in shared construction, to whom the developer is obliged to transfer the shared construction objects that are part of an apartment building and (or) another real estate object or as part of a block section of an apartment building that has a separate entrance with access to the common area, except for the case established by part 3 of this article.

In accordance with part 2 of article 6 of Law No. 214-FZ, in the event of a violation of the deadline for transferring a shared construction object to a shared construction participant, the developer pays a penalty (penalty) to the shared construction participant in the amount of one three hundredth of the refinancing rate of the Central Bank of the Russian Federation, effective on the day the obligation is fulfilled, from contract price for each day of delay. If a participant in shared construction is a citizen, the forfeit (penalty) provided for in this part shall be paid by the developer in double size.

In accordance with Part 9 of Article 4 of Law No. 214-FZ, the laws of the Russian Federation on the protection of rights consumers in the part not regulated by this federal law.

Thus, from the indicated provisions of the current legislation and the act of its clarification, it follows that the norms of the Law on the Protection of Rights consumers to the extent not regulated by Law No. 214-FZ.

(Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated June 2, 2015 No. 77-KG15-2)

1.4. The Society for the Protection of Consumer Rights in the interests of E. filed a lawsuit for the recovery of a penalty, compensation for moral damage and a fine, referring to the fact that on November 18, 2011, an agreement was concluded between the company and the developer to participate in the shared construction of an apartment building. In accordance with the terms of the contract, the developer is obliged to build a house, perform finishing work, obtain permission to put it into operation and transfer the construction objects to the participant in shared construction no later than March 1, 2014.

On September 5, 2013, the company and E. concluded an agreement on the assignment of the right to claim an apartment in a house under construction.

E. paid the cost of the apartment, however, the company did not fulfill its obligations within the period established by the contract, transferring the apartment to E. only on September 9, 2014.

The Court of First Instance agreed with the plaintiff's arguments and partially satisfied the claims.

Reversing the decision of the court of first instance regarding the recovery from the defendant of compensation for non-pecuniary damage and a fine for non-satisfaction of the consumer's claims on a voluntary basis and dismissing the claim in this part, the court of appeal proceeded from the fact that the parties had established legal relations arising from the contract of equity participation in construction housing, which are regulated by Law No. 214-FZ. According to the Court of Appeal, these legal relations are not subject to the provisions of the Law on the Protection of Consumer Rights regarding the recovery of compensation for moral damage and a fine for non-satisfaction with the requirements of the consumer on a voluntary basis.

In accordance with the preamble of the Law of the Russian Federation of February 7, 1992 No. 2300-I "On the Protection of Consumer Rights" (hereinafter referred to as the Law on the Protection of Consumer Rights), this law regulates relations arising between consumers and manufacturers, performers, importers, sellers during the transfer goods (performance of work, provision of services). In this case, a consumer is a citizen who not only orders, purchases or uses goods (works, services) for personal, family, household and other needs not related to entrepreneurial activities, but also has the intention to order or purchase such goods (works, services) .

Paragraph 2 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of June 28, 2012 No. 17 “On Consideration by Courts of Civil Cases on Disputes on the Protection of Consumer Rights” states that if certain types of relations involving consumers are also regulated by special laws of the Russian Federation containing norms of civil rights (for example, an agreement on participation in shared construction, an insurance agreement, both personal and property, a bank deposit agreement, a transportation agreement, an energy supply agreement), then to the relations arising from such agreements, the Consumer Rights Protection Law is applied in part, not regulated by special laws.

As established by the court, on the basis of an assignment agreement and an agreement on participation in shared construction, E. acquired the right to demand the transfer of an apartment to her in order to meet her personal, family needs not related to entrepreneurial activities, and the defendant is a legal entity engaged in the construction of an apartment building, residential premises in which are designed to meet the needs of citizens in housing.

Law No. 214-FZ does not regulate the issues of compensation for non-pecuniary damage and the recovery of a fine, therefore, the provisions of the Law on the Protection of Consumer Rights in this part should be applied in this case.

(Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated December 15, 2015 No. 18-KG15-214)

2. When concluding a contract for participation in shared construction, the developer is obliged to provide the participant in shared construction with complete and reliable information about the consumer properties and characteristics of a particular shared construction object and a description of the location of the real estate object under construction, taking into account the environment, as well as information about the composition and location of the common property in apartment building (for example, electrical, sanitary, other equipment).

The replacement of an object of shared construction to be transferred with an equivalent one is not provided for by Law No. 214-FZ as a way to protect the right of a participant in shared construction. At the same time, the replacement of an object of shared construction to be transferred to a participant in shared construction may be established by an agreement on participation in shared construction.

M. filed a lawsuit against the developer to impose the obligation to replace the shared construction object to be transferred to her in the form of a one-room apartment with an equivalent one, as well as to recover compensation for moral damage, a fine for refusing to voluntarily satisfy the consumer’s demand and reimbursement of expenses for paying for the services of a representative.

In support of the stated requirements, she indicated that when concluding an agreement on participation in shared construction, information was not brought to her attention about the possibility of a significant drawback in the shared construction object, which consists in the location of a cabinet-type gas control station (GRPSH) at a distance of less than a meter from the window of the above object . Meanwhile, such information would have been of significant importance when the plaintiff chose an object of shared construction, since the apartment is located on the first floor and the view from the window was of decisive importance when choosing the location of the object in a residential building. In addition, the commissioning of the GRPSh refers to gas hazardous work and, being located in close proximity to the dwelling under the window, the GRPSh creates a danger for people living in it. On a voluntary basis, the defendant refused to eliminate the defect, as well as to replace the object of shared construction with an equivalent one.

By the decision of the district court, left unchanged by the court of appeal, the claims were denied.

Refusing to satisfy the claims, the court of first instance, with which the court of appeal agreed, proceeded from the fact that the permission to put the residential building into operation, received by the defendant in accordance with Article 55 of the Town Planning Code of the Russian Federation, confirms the compliance of the constructed residential building with building codes and regulations and other technical regulations, as well as the fact that the quality of housing is suitable for citizens to live in it. Reliable and sufficient evidence confirming that the defendant violated the requirements of SNiP and technical regulations during the construction of the GRPSH.

The court of appeal also pointed out that Law No. 214-FZ does not provide for the obligation of the developer to inform the participant in shared construction about the location of various kinds of engineering equipment as part of the common property of an apartment building and coordinate its installation with him.

The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation declared the contested court decisions unlawful in terms of refusing to satisfy a claim for compensation for moral damage, collecting a fine and court costs, indicating that the current legislation obliges the seller to provide the consumer in a timely manner (that is, before the conclusion of the relevant contract) such information about the product, which would ensure the possibility of a free and correct choice of the product by the buyer, excluding the latter from any doubt about the consumer properties and characteristics of the product, the rules and conditions for its effective use.

At the same time, according to Article 2 of Law No. 214-FZ, a shared construction object is a residential or non-residential premises, common property in an apartment building and (or) another real estate object, subject to transfer to a participant in shared construction after obtaining permission to put the apartment building into operation and (or) other real estate and included in the specified apartment building and (or) other real estate, under construction (created) also with the involvement of funds from participants in shared construction.

In accordance with clause 1 of part 4 of Article 4 of Law No. 214-FZ, the agreement for participation in shared construction must contain a definition of the specific shared construction object to be transferred by the developer in accordance with the design documentation after he receives permission to commission an apartment building and (or) another object real estate.

Part 1 of Article 21 of Law No. 214-FZ establishes that information about a construction project must comply with project documentation and contain, among other things, information about the location of apartment buildings under construction (created) and (or) other real estate objects and about their description, prepared in accordance with with project documentation, on the basis of which a building permit was issued; on the functional purpose of non-residential premises in an apartment building that are not part of the common property in an apartment building, if the property under construction (created) is an apartment building; on the composition of the common property in an apartment building and (or) other real estate object, which will be in the common shared ownership of the participants in shared construction after obtaining permission to commission these real estate objects and transfer of shared construction objects to participants in shared construction.

From the analysis of the above rules of law, it follows that when concluding an agreement on participation in shared construction, the developer is obliged to provide the participant in shared construction with reliable information not only about the consumer properties and characteristics of a particular object of shared construction (in this case, an apartment) to be transferred within the time limits established by the agreement, but also other information regarding the apartment building under construction, which would provide the participant in shared construction with the opportunity to freely and correctly choose the appropriate premises in the object under construction.

At the same time, the specified information should include a description of the location of the property under construction, taking into account the environment, as well as information on the composition and location of common property in an apartment building, for example, electrical, sanitary and other equipment.

In violation of the above substantive law, the courts did not take into account that neither the agreement for participation in shared construction concluded between the parties, nor the design or other documentation available at the time of conclusion of this agreement for review by M., containing a description of the shared construction object, contained information about placement in the immediate vicinity of the windows of this facility GRPSH.

Consequently, when concluding an agreement on participation in shared construction, the defendant did not provide M. with the necessary and reliable information about the object under construction, which would allow the plaintiff, as a consumer, to make a free and informed choice among objects of a similar consumer purpose.

Considering the question of the method of restoring the violated right of M. by replacing the shared construction object to be transferred to her with an equivalent one, the Judicial Board pointed out that the legal norms of the Consumer Rights Protection Law and Law No. if the object of shared construction was built with a deviation from the terms of the concluded agreement, which led to a deterioration in the quality of such an object.

Since in this case the norms of Law No. 214-FZ are special in relation to the norms of the Law on the Protection of Consumer Rights, the norms of the first of these laws are subject to application, which such a method of protecting the right of a participant in shared construction as replacing the object of shared construction to be transferred with an equivalent one, not provided.

(Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated May 10, 2016 No. 5-KG16-47)

3. A housing-construction cooperative created in connection with the bankruptcy of a developer to complete construction at the expense of funds contributed by participants in shared construction is obliged to accept them as members of the cooperative.

K. filed a lawsuit against the housing cooperative to accept her as a member of the said cooperative and set off against the share contribution the funds paid by her under the equity participation agreement in construction.

In support of the claims, K. indicated that, under the contract concluded with the developer, she was a participant in the shared construction of an apartment building. The plaintiff's obligations to invest in the construction were fulfilled in full. At the expense of participants in shared construction, the developer erected an object of construction in progress. In connection with the bankruptcy of the developer, the participants in shared construction, in order to complete the construction of the house and put it into operation, created a housing cooperative, to which the specified object of construction in progress and the land plot on which it is located were transferred. The plaintiff's application for a credit against the share contribution of a member of the cooperative of her contribution to the shared construction of a house and for her acceptance as a member of the housing cooperative by the defendant on a voluntary basis was not satisfied.

In accordance with the charter of the housing cooperative in its original version, the activities of the cooperative are aimed at protecting the rights of participants in the shared construction of a residential building, as well as completing construction and acquiring housing on the basis of ownership in the interests of members of the cooperative.

On August 29, 2008, at an extraordinary general meeting of members of the housing cooperative, it was unanimously decided to accept the developer's creditors as members of the cooperative after the maximum possible identification of all participants in the shared construction of a residential building.

According to the protocol of the extraordinary general meeting of the housing cooperative dated April 15, 2009, the general meeting of members of the cooperative decided that the money contributed by the members of the cooperative (participants in shared construction) under agreements with the developer should be considered a share contribution, since the resettlement of the private sector and the construction of a residential building were made at the expense of funds of participants in shared construction.

On August 31, 2011, the Unified State Register of Legal Entities registered changes made to the charter of the cooperative, which, in particular, established the moment of termination of the pre-emptive right to admission to membership in this cooperative - April 5, 2010.

On April 17, 2013, the plaintiff submitted an application to the Housing Construction Cooperative for membership in this cooperative with a credit for the initial share contribution of the funds paid to the developer under the equity participation agreement in construction. This application was not satisfied by the respondent.

Satisfying the claims, the court of first instance proceeded from the fact that the housing cooperative, contrary to the purpose of creating a cooperative, in violation of its charter and property rights of the plaintiff, did not notify the plaintiff of the convening of a general meeting, at which a decision was made to stop accepting participants in shared construction as members of the housing cooperative, and also did not provide her with the opportunity to join the cooperative as a participant in shared construction.

Reversing the decision of the court of first instance and dismissing the claim, the court of appeal proceeded from the lack of legal grounds for satisfying K.'s claims, since she applied to become a member of the housing cooperative after the termination of admission to members of the cooperative of participants in shared construction. At the same time, the court of appeal took into account the fact that the provisions of the charter providing for such termination have not been challenged by anyone in the manner prescribed by law.

The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation canceled the appeal ruling, stating the following.

In accordance with Part 2 of Article 1 of Law No. 214-FZ, the attraction of citizens' funds associated with the citizens' right of ownership of residential premises in apartment buildings that, at the time of attracting such funds from citizens, were not put into operation in the manner established by the legislation on urban planning activities, is allowed both by concluding an agreement on participation in shared construction, and by creating a housing construction cooperative.

According to Article 21 of the Law of the Russian Federation of June 19, 1992 No. 3085-I "On consumer cooperation (consumer societies, their unions) in the Russian Federation", the sources of formation of the property of a consumer society are share contributions of shareholders, income from entrepreneurial activities of a consumer society and created by it organizations, as well as income from the placement of its own funds in banks, securities and other sources not prohibited by the legislation of the Russian Federation (clause 3).

The share fund of a consumer society consists of share contributions, which are one of the sources for the formation of property of a consumer society (paragraph 1 of article 23 of the said law).

The housing cooperative was created in order to protect the rights of participants in the shared construction of a residential building by completing construction and acquiring housing on the basis of ownership in the interests of members of the cooperative.

To complete the construction of an apartment building, with the consent of the participants in the shared construction, including the plaintiff, the defendant was transferred a land plot, as well as the object of construction in progress.

Thus, the housing cooperative has an obligation to accept members of the cooperative as participants in the shared construction of an apartment building, for which the ownership of the share contribution corresponding to the contribution to the construction of the object transferred to the housing cooperative is recognized.

Proving the proper fulfillment of this obligation by virtue of the provisions of paragraph 1 of Article 6 and paragraph 2 of Article 401 of the Civil Code of the Russian Federation should be entrusted to the housing cooperative.

From the appealed appeal ruling, as well as from the case materials, it follows that evidence confirming the fulfillment by the defendant of the obligation to accept the plaintiff as a member of the housing cooperative, including by making appropriate decisions to include her in the members of the cooperative, to assign to her the appropriate share contribution, areas, equal as well as evidence of notification of her about the convening of general meetings of members of the cooperative, about the decisions of the general meeting, about changes in the charter of the cooperative, the defendant was not presented.

(Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated April 12, 2016 No. 19-KG16-5)

4. Notification by the developer of a participant in shared construction about the postponement of the construction period does not entail a change in the terms provided for in the agreement on participation in shared construction. To change them, it is necessary for the developer and the participant in shared construction to conclude an agreement subject to state registration.

Yu. filed a lawsuit against the developer to invalidate the contract in part, to recover damages, forfeit, compensation for non-pecuniary damage and a fine, referring to the fact that the company had assigned her the right to claim under the agreement on participation in shared construction concluded between him and the developer. The defendant violated the terms of construction and transfer of the apartment.

By the decision of the court of first instance, left unchanged by the court of appeal, the claim was denied. The courts pointed out that when concluding the assignment agreement, Yu. was acquainted with the notice of the postponement of the deadline for the completion of the construction project.

The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation canceled the appeal ruling, stating the following.

In accordance with Part 3 of Article 6 of Law No. 214-FZ, if it is impossible to complete construction within the period specified in the contract, the developer, no later than two months before the expiration of the specified period, is obliged to send relevant information and a proposal to amend the contract to the participant in shared construction. Amending the contract is carried out in the manner prescribed by the Civil Code of the Russian Federation.

By virtue of paragraph 1 of Article 452 of the Civil Code of the Russian Federation, an agreement to amend or terminate a contract is made in the same form as the contract, unless otherwise follows from the law, other legal acts, contract or customs.

In the contract for the assignment of rights (claims) concluded between the plaintiff and the company, there is a reference to the plaintiff's familiarization with the notice of a change in the construction time.

However, an additional agreement providing for a change in the named terms was not concluded between the developer and the participant in shared construction and did not pass state registration.

Under such circumstances, a notice of a change in construction time could not serve as a basis for changing such time.

Since the law does not provide for the possibility of unilateral amendment of the contract, the notification of the developer about the change in the construction period does not in itself entail a change? condition? agreements on the terms of fulfillment of obligations.

(Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation of December 8, 2015 N 5-KG15-156)

5. A change in the term provided for by the contract for the transfer by the developer of an object of shared construction to a participant in shared construction is carried out in the manner established by the Civil Code of the Russian Federation, taking into account the provisions of Part 3 of Article 6 of Law No. 214-FZ.

On March 2, 2012, U. entered into an agreement with the defendant to participate in shared construction, the object of which was a two-room apartment.

The agreement provided for obtaining permission to put the apartment building into operation before December 31, 2012 and transferring the shared construction object to the participant in shared construction under the act of acceptance and transfer no later than February 28, 2013.

On September 13, 2013, U. and S. entered into an agreement on the assignment of the right to claim under the said agreement on participation in shared construction, which indicates the deadline for the developer to receive permission to put into operation until December 31, 2013, and the deadline for transferring the object of shared construction - up to 28 February 2014

S. filed a lawsuit against the developer for the recovery of a penalty for violating the deadline for the transfer of an object of shared construction.

Refusing to recover the penalty for the period from March 1, 2013 to March 1, 2014, the court of first instance pointed out that, having concluded the contract for the assignment of the right to claim, the parties agreed that the defendant transfers the object of participation in shared construction to the plaintiff no later than February 28 2014, and came to the conclusion that the right to claim was transferred to the plaintiff on other conditions than was provided for by the agreement on participation in shared construction. At the same time, the court did not take into account the plaintiff's arguments that the indication of a different date for the transfer of the apartment to the developer was a typo.

The court of second instance upheld this position of the court.

The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation did not agree with the conclusions of the courts of the first and appellate instances, stating the following.

In accordance with Article 384 of the Civil Code of the Russian Federation, unless otherwise provided by law or contract, the right of the original creditor passes to the new creditor to the extent and on the conditions that existed at the time of the transition of the right. In particular, the rights securing the performance of the obligation, as well as other rights related to the claim, including the right to interest, are transferred to the new creditor.

According to paragraph 1 of Article 452 of the Civil Code of the Russian Federation (as amended in force at the time of the disputed relationship), an agreement to amend or terminate a contract is made in the same form as the contract, if from the law, other legal acts, the contract or business customs does not follow otherwise.

Law No. 214-FZ provides that if the construction (creation) of an apartment building and (or) other real estate object cannot be completed within the period stipulated by the contract, the developer, no later than two months before the expiration of the specified period, is obliged to send to the participant in shared construction relevant information and a proposal to amend the contract. A change in the term provided for by the contract for the transfer by the developer of the object of shared construction to the participant in shared construction is carried out in the manner established by the Civil Code of the Russian Federation.

Thus, an analysis of the above legislation allows us to conclude that the deadline for the transfer by the developer of the object of participation in shared construction (apartment), established in the original contract with U., could only be changed in the manner prescribed by part 3 of article 6 of Law No. 214 -FZ. However, the case materials do not contain any information about such a procedure.

(Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated April 26, 2016 No. 5-KG16-45)

6. Necessary and sufficient conditions for satisfying the requirements of a participant in shared construction on state registration of an agreement on shared participation in construction are compliance with the proper form of such an agreement, the absence of obstacles to its registration and the defendant's evasion of such registration.

A. filed a lawsuit against the developer to register an agreement for participation in shared construction, under the terms of which the defendant assumed the obligation, upon completion of the construction of a residential building, to transfer the residential premises in the form of a two-room apartment to the plaintiff's ownership.

At the time of applying to the court, according to the plaintiff, there were no legal obstacles to registering the contract, this contract was concluded in the proper form, the obligation to pay for the shared construction object was fulfilled by the plaintiff, and the only obstacle to state registration of the contract is the inaction of the defendant.

In refusing to satisfy the claims, the courts of first and appeal instances proceeded from the fact that there were no legal grounds provided for by paragraph 2 of Article 165 of the Civil Code of the Russian Federation for registering an agreement for participation in shared construction concluded between A. and the developer, since the plaintiff did not provide evidence confirming the validity of the stated requirements.

The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation canceled the appeal ruling, stating the following.

By virtue of paragraph 2 of Article 165 of the Civil Code of the Russian Federation, if a transaction requiring state registration is made in the proper form, but one of the parties evades its registration, the court, at the request of the other party, has the right to make a decision on registration of the transaction. In this case, the transaction is registered in accordance with the decision of the court.

According to part 3 of article 4 of Law No. 214-FZ, an agreement for participation in shared construction is concluded in writing and is subject to state registration.

Within the meaning of the said norms of substantive law, in addition to establishing the circumstance of the defendant evading the state registration of the transaction, legally significant circumstances for resolving the dispute are the clarification of questions about the observance by the parties of the proper form of the transaction, as well as the absence of obstacles to its state registration.

In confirmation of the stated requirements, the plaintiff presented an agreement for participation in shared construction dated October 29, 2010, concluded between him and the developer and signed by the parties.

The basis for the conclusion of this agreement was an investment contract for the construction of a residential property dated April 15, 2004, an additional agreement dated October 22, 2008 on the transfer of the rights and obligations of the company to the developer under the investment contract to third parties under the contracts concluded with them; an agreement on equity participation in investing in the construction of a residential building, concluded on March 14, 2007 between the company and A.

Clause 1 of Article 160 of the Civil Code of the Russian Federation provides that a transaction in writing must be made by drawing up a document expressing its content and signed by the person or persons making the transaction, or persons duly authorized by them.

As follows from the content of the agreement dated October 29, 2010, the parties agreed to establish legal relations arising from the agreement on equity participation in construction, assumed mutual rights and obligations under it.

The case materials also confirm that the plaintiff repeatedly sent proposals to the defendant to register the above-mentioned contract, but the defendant evaded registration, so far the contract has not been registered in the manner prescribed by law.

These circumstances were legally significant for the correct resolution of the dispute, however, in violation of the norms of procedural law, the court did not receive a proper legal assessment.

(Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated June 21, 2016 N 5-KG16-91)

7. Unilateral refusal of the developer from the contract (termination of the contract) due to non-payment by a participant in shared construction under a shared construction agreement is allowed only subject to the provisions of paragraph 4 of Article 450 of the Civil Code of the Russian Federation on good faith and reasonableness.

Between L. and the developer, an agreement was concluded for participation in the shared construction of an apartment building, under the terms of which the defendant undertook to transfer the one-room apartment to the plaintiff no later than December 31, 2013, and the plaintiff is obliged to pay the cost of the apartment within three working days from the date of registration of the contract.

The agreement for participation in shared construction was registered with the Institution of Rosreestr on September 9, 2013.

On April 28, 2014, the developer notified L. of the increase in the price of the contract, referring to the plaintiff's violation of the payment terms.

On October 20, 2014, L. sent an application to the developer demanding the return of overpaid money due to a decrease in the total area of ​​the dwelling.

On November 10, 2014, the developer notified the plaintiff of the offset of mutual claims, recalculating the amount of L.

On November 20, 2014, the developer notified L. of the unilateral refusal to execute the equity agreement.

Refusing to satisfy the claims for declaring illegal the unilateral termination of the contract for participation in shared construction, the court of first instance, with the conclusions of which the court of appeal agreed, indicated that L. did not properly fulfill the terms of the agreement for participation in shared construction, violated the deadline for paying the price of the contract.

In accordance with Part 4 of Article 5 of Law No. 214-FZ, if, in accordance with the contract, the payment of the price of the contract must be made by a participant in shared construction by making a lump-sum payment, a delay in making payment for more than two months is the basis for the developer's unilateral refusal to perform contracts.

From the moment the plaintiff paid the money and until the end of construction, the developer used the plaintiff's money, there were no claims regarding delay in payment and additional payments from the developer to the citizen during the specified period.

The dispute between the developer and L. arose after a year from the date of making the payment amount during the completion of the construction of a residential building and the readiness of the shared construction object for transfer.

In accordance with paragraph 3 of Article 1 of the Civil Code of the Russian Federation, when establishing, exercising and protecting civil rights and in the performance of civil obligations, participants in civil legal relations must act in good faith.

According to article 10 of the same code, the exercise of civil rights solely with the intent to cause harm to another person, actions bypassing the law with an unlawful purpose, as well as other obviously unfair exercise of civil rights (abuse of the right) are not allowed (paragraph 1).

In case of non-compliance with the requirements provided for by the above paragraph, the court, arbitration court or arbitration court, taking into account the nature and consequences of the abuse committed, refuses the person to protect his right in whole or in part, and also applies other measures provided for by law (paragraph 2).

The requirement of conscientiousness and reasonableness of participants in civil transactions is a general principle of civil law applicable to the provisions on termination of the contract, which is confirmed by paragraph 4 of Article 450 of the Civil Code of the Russian Federation, which provides that the party to which this code, other laws or the contract has been granted the right to unilateral change of the contract, must, in exercising this right, act in good faith and reasonably within the limits provided for by this code, other laws or the contract.

Assessing the actions of the parties as good faith or bad faith, one should proceed from the behavior expected from any participant in civil transactions, taking into account the rights and legitimate interests of the other party, assisting it, including in obtaining the necessary information.

Recognizing the lawful and justified unilateral termination of the contract by the defendant on the grounds of non-payment of funds by the plaintiff, the court should have assessed the validity of the developer's unilateral refusal to execute the contract and the compliance of such refusal with the current legislation.

These circumstances were not investigated by the court and did not receive a proper legal assessment.

In view of the foregoing, by the decision of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation, the decisions of the courts of first and appeal instances were canceled, the case was sent for a new trial to the court of appeal.

(Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated April 19, 2016 No. 5-KG16-51)

Responsibility for violation of legislation on participation in shared construction

8. Law No. 214-FZ on participation in shared construction does not contain provisions establishing the developer's liability for failure to meet the deadlines for meeting certain requirements of a participant in shared construction, including the requirement to eliminate deficiencies identified during the transfer of the construction object free of charge.

Violation of the deadline for satisfying the specified requirement entails the onset of the liability of the seller provided for by the Law on the Protection of Consumer Rights in the form of payment of a penalty.

I. filed a lawsuit against the developer for the recovery of a penalty and compensation for non-pecuniary damage, stating that under the concluded agreement on equity participation in the construction, an apartment was transferred to him, in which defects were subsequently discovered.

After I. sent the claim to the developer, the shortcomings were not eliminated.

By a court decision that has entered into force, the claims of I. against the developer on imposing the obligation to eliminate the shortcomings are satisfied.

The court decision was not executed by the developer, in connection with which the plaintiff again filed a lawsuit in which he asked to recover from the defendant the penalty provided for in Article 23 of the Consumer Rights Protection Law and to compensate for the moral damage caused to him by the defendant's inaction for the period after the court decision entered into force. legal force until a new claim is filed.

By the decision of the court of first instance, left unchanged by the court of appeal, the claim was dismissed.

At the same time, the courts proceeded from the fact that relations between the parties were established, regulated by the norms of civil procedural legislation and legislation on enforcement proceedings, related to the non-execution of a court decision that had entered into legal force.

The court came to the conclusion that after the adoption of the said decision, the plaintiff did not have the right to file claims for the recovery of a penalty and compensation for non-pecuniary damage for violation of the deadlines for satisfying consumer claims in accordance with the provisions of the Law on the Protection of Consumer Rights.

The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation, canceling the judicial acts, indicated that the disputed legal relations arising from the agreement on participation in shared construction are subject to the Consumer Rights Protection Law to the extent not regulated by a special law - Law No. 214-FZ.

The legislation on participation in shared construction does not contain provisions establishing the responsibility of the developer for violating the deadlines for meeting certain requirements of a participant in shared construction, including the requirement for the free elimination of defects identified during the transfer of the construction object (in the event that the shared construction object was accepted by the shareholder with such shortcomings ).

In accordance with paragraph 1 of Article 18 of the Law on the Protection of Consumer Rights, the consumer, in the event that defects are found in the goods, if they have not been specified by the seller, at his choice, has the right to demand immediate, free of charge elimination of defects in the goods or reimbursement of expenses for their correction by the consumer or a third party.

According to paragraph 1 of Article 20 of the same law, if the term for eliminating defects in goods is not determined in writing by agreement of the parties, these defects must be eliminated by the manufacturer (seller, authorized organization or authorized individual entrepreneur, importer) immediately, that is, within the minimum period objectively necessary to eliminate them, taking into account the commonly used method. The term for eliminating defects in goods, determined in writing by agreement of the parties, may not exceed forty-five days.

At the same time, for violation of the specified period, liability is established by paragraph 1 of Article 23 of the Consumer Rights Protection Law in the form of a penalty, which the manufacturer who committed such violations pays to the consumer for each day of delay a penalty (fine) in the amount of one percent of the price of the goods.

The presence of a valid court decision to eliminate the shortcoming identified in the shared construction object did not relieve the developer from liability for failure to comply with this requirement after the adoption of the said judicial act.

(Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated March 1, 2016 No. 4-KG15-70)

9. The amount of the penalty for violation of the term for the transfer of an object of shared construction may be reduced by the court on the basis of Article 333 of the Civil Code of the Russian Federation only if there is an application from the developer, who must provide evidence of the clear disproportion of the penalty to the consequences of the violation of the obligation.

On October 5, 2006, F. and the developer signed an agreement on equity participation in the construction of an apartment building.

F. assumed obligations under the named contract were fulfilled, however, the defendant did not transfer the apartment to the plaintiff within the period established by the contract.

With partial satisfaction of the claims, the court of first instance, with which the court of appeal agreed, considering the amount of the penalty to be collected as clearly disproportionate to the consequences of the violation of obligations, concluded that there were grounds for reducing its size and applied the provisions of Article 333 of the Civil Code of the Russian Federation in the version in force at the time of the contract.

The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation did not agree with the indicated conclusions of the courts, stating the following.

Disputable legal relations arising from an agreement on participation in shared construction are subject to the Law on the Protection of Consumer Rights to the extent not regulated by a special law - Law No. 214-FZ.

The Supreme Court of the Russian Federation in paragraph 34 of the Resolution of the Plenum of June 28, 2012 No. 17 "On the consideration by the courts of civil cases in disputes on the protection of consumer rights" explained that the application of Article 333 of the Civil Code of the Russian Federation in cases of consumer protection is possible in exceptional cases and at the request of the defendant with the obligatory indication of the motives on which the court believes that the reduction in the amount of the penalty is admissible.

However, in violation of these requirements of the law, there was no information in the case file confirming that the defendant in the court of first instance had declared a reduction in the amount of the penalty to be collected.

In addition, the decision of the court of first instance and the appellate ruling do not indicate what is the exclusivity of this case and the obvious disproportion of the penalty to the consequences of the breach of obligations by the defendant.

(Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated October 20, 2015 No. 14-KG15-9)

It should be borne in mind that for relations related to non-performance or improper performance of an agreement concluded after June 1, 2015, Article 333 of the Civil Code of the Russian Federation is subject to application as amended by Federal Law No. 42-FZ of March 8, 2015 “On Amendments to part one of the Civil Code of the Russian Federation.

In addition, it is necessary to be guided by the clarifications contained in the resolution of the Plenum of the Supreme Court of the Russian Federation dated March 24, 2016 No. 7 “On the application by the courts of certain provisions of the Civil Code of the Russian Federation on liability for breach of obligations”.

10. The transfer by the developer to a participant in shared construction of sums of money after filing a claim cannot be grounds for refusing to collect a fine for non-compliance with the consumer's requirements on a voluntary basis.

The burden of proving the disproportion of the penalty payable for the delay in the transfer of the shared construction object to the consequences of the violation of the obligation lies with the developer who violated the obligation.

E. filed a lawsuit against the developer for the recovery of a penalty for the delay in the transfer of an object of shared construction (apartment), compensation for non-pecuniary damage, and the recovery of a fine.

The courts established that on December 15, 2013, E. and the developer concluded an agreement for participation in shared construction. In connection with the violation of the terms of delivery of the construction object, the amount of the penalty to be collected amounted to 100,543 rubles.

During the trial in the court of first instance, the developer transferred 20,000 rubles to the plaintiff as a penalty.

The court of first instance, in accordance with Article 333 of the Civil Code of the Russian Federation, reduced the amount of the penalty to 18,000 rubles and, taking into account the amount paid, dismissed the claim for the recovery of the penalty and the fine.

The Court of Appeal upheld the decision of the Court of First Instance.

The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation set aside the said court decisions, stating the following.

A penalty in accordance with Law No. 214-FZ is charged upon establishing the fact of an untimely transfer of an apartment to a participant in shared construction, which was established and not disputed.

Within the meaning of Article 333 of the Civil Code of the Russian Federation, as amended at the time of the conclusion of the contract, and in accordance with the act of its interpretation, namely, Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 28, 2012 No. Protection of Consumer Rights”, the developer, who allowed the improper performance of the obligation, is obliged to prove that the penalty is disproportionate to the consequences of the violation of the obligation if he applied for a reduction in the amount of the penalty.

The Court of Appeal incorrectly distributed the burden of proof, placing on the share construction participant the obligation to prove that the amount of the penalty complies with the violation committed.

Also, the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation came to the conclusion that it was illegal to refuse to recover a fine for refusing to voluntarily meet the requirements of the consumer, indicating the following.

In accordance with paragraph 6 of Article 13 of the Law on the Protection of Consumer Rights, when the court satisfies the requirements of the consumer established by law, the court collects from the manufacturer (executor, seller, authorized organization or authorized individual entrepreneur, importer) for failure to voluntarily satisfy the requirements of the consumer a fine in the amount of fifty percent of the amount awarded by the court in favor of the consumer.

The presence of a court dispute on the recovery of a penalty for the delay in the transfer of an object of shared construction after the developer’s refusal to satisfy a similar requirement for payment indicates the developer’s failure to fulfill its obligation to pay it voluntarily, and therefore the satisfaction of the requirements of a participant in shared construction during the period of consideration of the dispute in court does not release the developer from paying a fine.

In accordance with the provisions of paragraph 47 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 28, 2012 No. 17 "On the consideration by the courts of civil cases on disputes on the protection of consumer rights", if after the claim is accepted for court proceedings, the consumer's requirements are satisfied by the defendant in the case (seller, executor, manufacturer, authorized organization or authorized individual entrepreneur, importer) voluntarily, then if the plaintiff refuses the claim, the court terminates the proceedings in accordance with Article 220 of the Code of Civil Procedure of the Russian Federation. Only in this case, the fine provided for in paragraph 6 of Article 13 of the Consumer Rights Protection Law is not recovered from the defendant.

(Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated April 26, 2016 No. 31-KG16-1)

11. When resolving a dispute about the developer's liability for failure to fulfill obligations to transfer an object of shared construction, the developer is legally significant and subject to proof are the circumstances in which he fulfills his obligation to notify the participant in shared construction of the completion of construction, the readiness of the object of shared construction for transfer, as well as the circumstances of warning the participant in shared construction construction on the need to accept the object and the consequences of its inaction.

By the decision of the court of first instance, B.'s claims against the developer for the recovery of a penalty, a fine and compensation for non-pecuniary damage for the defendant's failure to fulfill the obligation to transfer the shared construction object were partially satisfied.

The appellate ruling annulled the decision, a new decision was issued in the case, which dismissed the claim.

Resolving the dispute, the court of first instance came to the conclusion that B.'s apartment was not transferred within the time period stipulated by the equity participation agreement in construction. At the same time, the developer, in violation of the requirements of part 4 of article 8 of Law No. 214-FZ, did not send the plaintiff a message about the completion of the construction of the house and the readiness of the shared construction object for transfer in accordance with the contract, and also did not warn B. about the need to accept this object.

Reversing the court decision and dismissing the claim, the court of appeal proceeded from the fact that the plaintiff did not provide evidence of improper fulfillment by the developer of its obligations to notify the participant in shared construction about the readiness of the facility and the need to accept it.

The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation did not agree with the conclusions of the court of appeal, which, among other things, committed a significant violation of the rules of procedural law (Article 56 of the Civil Procedure Code of the Russian Federation), pointing out the following.

In accordance with parts 4, 6 of Article 8 of Law No. 214-FZ, the developer, at least one month before the deadline for the transfer of the shared construction object established by the agreement, or if the agreement provides for the start date for the transfer and acceptance of the shared construction object, at least fourteen working days before the deadline for the start of transfer and acceptance is obliged to send a notice to the participant in shared construction about the completion of construction (creation) of an apartment building and (or) other real estate object in accordance with the agreement and about the readiness of the object of shared construction for transfer, as well as to warn the participant in shared construction about the need to accept an object of shared construction and the consequences of the inaction of a participant in shared construction, provided for in part 6 of this article. A participant in shared construction who has received a message from the developer on the completion of construction (creation) of an apartment building and (or) other real estate object in accordance with the agreement and on the readiness of the shared construction object for transfer, is obliged to proceed with its acceptance within the period specified in the agreement or, if such period is not established, within seven working days from the date of receipt of the said message.

Unless otherwise provided by the contract, if a participant in shared construction evades acceptance of an object of shared construction within the time period provided for by Part 4 of this Article or if a participant in shared construction refuses to accept an object of shared construction (except for the case specified in Part 5 of this Article), the developer, after two months from the date provided for by the agreement for the transfer of the shared construction object to the participant in shared construction, is entitled to draw up a unilateral act or other document on the transfer of the shared construction object (except for the case of early transfer of the shared construction object specified in part 3 of this article).

It follows from the above norms in their interrelation that it is legally significant and subject to proof that the developer fulfills the obligation to notify the participant in shared construction about the completion of construction, about the readiness of the shared construction object for transfer, as well as to warn the participant in shared construction about the need to accept the shared construction object and about the consequences of inaction.

The appeal court's reference to the fact that the plaintiff did not provide evidence of the developer's evasion from transferring the apartment, as one of the grounds for refusing the claim, was recognized as erroneous, since, in violation of Article 56 of the Civil Procedure Code of the Russian Federation, the burden of proving the proper performance of its obligations under the agreement on equity participation in the construction of housing and the transfer of B.'s apartment or his evasion from accepting an apartment that is an object of shared construction lies with the developer who violated the obligation.

(Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated June 14, 2016 No. 18-KG16-40)

12. If a participant in shared construction, prior to going to court, filed a lawful and justified claim against the developer for the payment of a penalty, which was not satisfied on a voluntary basis, a fine in the amount of fifty percent of the amount of the specified penalty is subject to recovery from the developer.

The regional public organization for the protection of consumer rights filed a lawsuit in the interests of D. against the developer for the recovery of a penalty under an agreement on participation in shared construction, a fine, and compensation for moral damage.

The claim is substantiated by the fact that on October 19, 2012, an agreement was concluded between the developer and D. for participation in shared construction, according to which the developer undertook to transfer the apartment to the participant in shared construction by May 30, 2013, however, the apartment was transferred on March 6, 2014, then there is a violation of the term stipulated by the contract.

D. appealed to the defendant with a request to pay a penalty for violation of the deadlines for transferring the apartment to him, but his demand was not satisfied.

The court of first instance, agreeing with the arguments of the plaintiff, partially satisfied the claims.

Reversing the decision of the court of first instance and refusing to satisfy the claim for the recovery of a fine, the court of appeal referred to the fact that the amount of the penalty was disputed by the defendant in court, which did not allow the developer to satisfy the consumer's demands on a voluntary basis.

The Judicial Collegium for Civil Cases overturned the appellate ruling, stating the following.

In accordance with Part 2 of Article 6 of Law No. 214-FZ, in the event of a violation of the deadline for the transfer of a shared construction object to a shared construction participant, the developer pays a penalty (penalty) to the shared construction participant in the amount of one three hundredth of the refinancing rate of the Central Bank of the Russian Federation, effective on the day the obligation is fulfilled , from the price of the contract for each day of delay. If a participant in shared construction is a citizen, the forfeit (penalty) provided for in the specified part shall be paid by the developer in double size.

Paragraph 6 of Article 13 of the Consumer Rights Protection Law provides that if the court satisfies the consumer’s requirements established by law, the court shall recover from the manufacturer (performer, seller, authorized organization or authorized individual entrepreneur, importer) for failure to voluntarily meet the consumer’s requirements a fine of fifty percent of the amount awarded by the court in favor of the consumer. If public associations of consumers (their associations, unions) or local self-government bodies make a statement in defense of consumer rights, fifty percent of the amount of the fine collected is transferred to the indicated associations (their associations, unions) or bodies.

Proceeding from the meaning of the above legal norms, in the case when the consumer's legitimate and justified claims for payment of a penalty (penalty) are not voluntarily fulfilled and he exercises his right to judicial protection, the court, satisfying the claims, imposes on the manufacturer (performer, seller, authorized organization or an authorized individual entrepreneur, importer) liable for violation of consumer rights in the form of a fine in the amount of fifty percent of the amount awarded by the court in favor of the consumer.

Therefore, if the court establishes the fact that the consumer, prior to applying to the court, filed a claim for payment of a penalty and it was not voluntarily satisfied by the defendant out of court, the latter is liable to collect a fine, provided for in paragraph 6 of Article 13 of the Law on the Protection of Consumer Rights, based on the amount of the penalty awarded by the court.

(Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated December 1, 2015 No. 18-KG15-177)

13. In the event of the transfer of the rights of a participant in shared construction to a new creditor, in particular, the right to recover a penalty from the developer, the latter is calculated for the period starting from the moment the developer violates his obligations to the previous creditor, unless otherwise provided by the contract.

Between the developer and X., an agreement was concluded for participation in the shared construction of an apartment building, according to which the apartment was to be transferred no later than August 31, 2012.

H. fully and within the terms established by the contract paid the developer the cost of a two-room apartment.

On the basis of an agreement on the assignment of the right to claim dated April 25, 2013, X. assigned Sh. the right to claim the transfer of ownership of the specified property to the developer.

The apartment was transferred by the developer to Sh.'s representative after 193 days after the date provided for in the shared construction agreement.

The court of first instance, satisfying the plaintiff's claims regarding the recovery of a penalty for violation of the term for the transfer of a property, came to the conclusion that the penalty is to be calculated from August 31, 2012, that is, from the date specified by the parties in the agreement for participation in the shared construction of an apartment building and an additional agreement to it.

Changing the decision of the court of first instance in this part, the court of appeal proceeded from the fact that Sh. has the right to recover a penalty from the moment when the right to demand that the developer transfer ownership of the shared construction object passed to her.

The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation did not agree with the said conclusions of the Court of Appeal, noting the following.

In case of violation of the deadline for the transfer of the shared construction object to the participant in shared construction, the developer pays the participant in shared construction a penalty (penalty), the amount of which is established by Law No. 214-FZ.

In accordance with paragraph 1 of Article 382 of the Civil Code of the Russian Federation, the right (claim) belonging to the creditor on the basis of an obligation may be transferred by him to another person in a transaction (assignment of a claim) or transferred to another person on the basis of a law.

By virtue of paragraph 2 of Article 11 of Law No. 214-FZ, the assignment by a participant in shared construction of the rights of claims under the contract is allowed from the moment of state registration of the contract until the signing by the parties of the transfer act or other document on the transfer of the shared construction object.

According to Article 384 of the Civil Code of the Russian Federation, unless otherwise provided by law or contract, the right of the original creditor passes to the new creditor to the extent and on the conditions that existed at the time of transfer of the right. In particular, the rights securing the performance of the obligation, as well as other rights related to the claim, including the right to unpaid interest, are transferred to the new creditor.

In accordance with Article 431 of the Civil Code of the Russian Federation, when interpreting the terms of the contract, the court takes into account the literal meaning of the words and expressions contained in it. The literal meaning of the terms of the contract in case of its ambiguity is established by comparison with other terms and the meaning of the contract as a whole.

The right to recover a penalty from the defendant arose from the original creditor under the agreement on participation in the shared construction of an apartment building from the moment of delay in the transfer of the apartment. Accordingly, under the contract of assignment of the right to claims, the new creditor acquires the same scope of rights, including the right to demand the recovery of a penalty from the defendant for the entire period of delay.

(Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated January 27, 2015 No. 2-KG14-1)

14. The developer is obliged to transfer to the participant in shared construction an object of shared construction, the quality of which complies with the terms of the contract, the requirements of technical regulations, project documentation and urban planning regulations, as well as other mandatory requirements.

In case of failure to fulfill this obligation, a participant in shared construction has the right to demand the elimination of violations and bringing the developer to responsibility.

A public organization in the field of consumer rights protection, acting in the interests of U., filed a lawsuit against the developer for the recovery of funds for the elimination of shortcomings in construction, compensation for moral damage.

On November 14, 2011, the developer and U. entered into an equity participation agreement in the construction of an apartment building.

The court of first instance, while partially satisfying the claims, proceeded from the fact that the obligation to eliminate the shortcomings identified in U.'s apartment, expressed in insufficient insulation of the walls of the house, should be assigned to the developer, since these shortcomings arose as a result of violations committed during the construction of the house.

Revoking the decision of the court of first instance and refusing to satisfy the claims in full, the court of appeal indicated that the work on the external insulation of the wall would lead to a change in the common property of the owners of the apartment building. The consent of all the owners of the premises of the apartment building was not obtained.

The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation did not agree with the above conclusions of the Court of Appeal, stating the following.

In accordance with Article 7 of Law No. 214-FZ, in force at the time of the disputed legal relationship, the developer is obliged to transfer to the participant in shared construction an object of shared construction, the quality of which complies with the terms of the contract, the requirements of technical regulations, project documentation and urban planning regulations, as well as other mandatory requirements ( part 1). If the object of shared construction is built (created) by the developer with deviations from the terms of the contract and (or) the mandatory requirements specified in part 1 of this article, which led to a deterioration in the quality of such an object, or with other shortcomings that make it unsuitable for the use provided for by the contract , a participant in shared construction, unless otherwise provided by the contract, at his choice has the right to demand from the developer to eliminate deficiencies free of charge within a reasonable time, a commensurate reduction in the contract price or reimbursement of his expenses for the elimination of deficiencies (part 2).

The court found that the dispute arose in connection with the shortcomings made by the developer during the construction of the house, and therefore the conclusions of the court of appeal on U.'s refusal to satisfy the claims for the recovery of funds to eliminate the shortcomings and compensation for non-pecuniary damage are illegal.

(Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated April 28, 2015 No. 11-KG15-9)

15. Within the meaning of Article 8 of Law No. 214-FZ, obtaining permission to put an apartment building into operation determines the beginning of the period for transferring an object to a participant in shared construction, the violation of which entails liability under the law.

On July 15, 2013, a contract for participation in the shared construction of a residential building was concluded between the company and the developer, the subject of which is participation in the construction of an apartment.

An assignment agreement was concluded between the plaintiffs and the company, under the terms of which the assignor ceded to the plaintiffs in equal shares each of the rights and obligations under the equity agreement.

According to paragraph 3.2 of the contract, the developer planned to complete the construction of the facility in the I - II quarter of 2015.

Clause 3.2.1 of the agreement provides that, in accordance with clause 2 of part 4 of article 4, part 3 of article 8 of Law No. 214-FZ, the developer undertakes to transfer the apartment to the participant in shared construction according to the act of acceptance and transfer no later than six months from the date of receipt of permission to enter the object into operation.

Due to the fact that permission to put the object into operation was received on December 25, 2014, and the apartment was transferred to the plaintiffs on October 21, 2015, the participants in shared construction filed a lawsuit against the developer to recover a penalty, compensation for moral damage, as well as a fine .

By decision of the district court, the claims were dismissed.

The Court of Appeal overturned the decision, a new decision was made in the case, with which the claims were partially satisfied.

By the decision of the court of cassation, the appellate ruling was canceled, the decision of the district court was left unchanged.

Refusing to satisfy the claims, the court of first instance, based on a systematic interpretation of clauses 3.2 and 3.2.1 of the agreement, indicated that since the delivery of the object was supposed to be in the II quarter of 2015, that is, on June 30, 2015, the apartment should be transferred to the plaintiffs no later than six months from the specified date, namely no later than December 30, 2015. In view of the fact that the apartment was transferred to the plaintiffs on October 21, 2015, there is no violation of the deadlines for the transfer of the apartment by the defendant.

The Court of Appeal did not agree with the findings of the Court of First Instance and overturned its decision, referring to the fact that the only specific deadline for the developer to transfer the apartment to the plaintiffs is the deadline specified in clause 3.2.1 of the contract. Due to the fact that permission to put the object into operation was received on December 25, 2014, the apartment must be transferred to the plaintiffs no later than June 25, 2015. The actual transfer of the apartment took place on October 21, 2015, which indicates a violation by the defendant of the deadline for transferring the apartment to the plaintiffs stipulated by the contract.

The Presidium, canceling the appellate ruling and leaving in force the decision of the court of first instance to refuse to satisfy the claims, agreed with its conclusion that there had been no violation of the obligation to transfer the shared construction object.

The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation canceled the decision of the presidium, indicating that the conclusion of the courts of first and cassation instances that the six-month period for the transfer of the apartment, established by paragraph 3.2.1 of the agreement, was to be calculated from the date of completion of the planned completion of the construction period, and not from the date of receipt of permission to put the facility into operation, made by the courts without taking into account Law No. 214-FZ.

Thus, by virtue of Article 8 of Law No. 214-FZ, the transfer of an object of shared construction by the developer and its acceptance by a participant in shared construction is carried out according to a transfer act signed by the parties or another transfer document (part 1). The transfer of an object of shared construction is carried out not earlier than after obtaining, in accordance with the established procedure, permission to commission an apartment building and (or) another real estate object (part 2).

As stated in Part 3 of Article 8 of Law No. 214-FZ, after the developer has received, in the prescribed manner, permission to commission an apartment building and (or) other real estate property, the developer is obliged to transfer the shared construction object no later than the period stipulated by the contract. At the same time, early fulfillment by the developer of the obligation to transfer the object of shared construction is not allowed, unless otherwise provided by the contract.

Thus, within the meaning of Article 8 of Law No. 214-FZ, it is the receipt of permission to put an apartment building into operation that determines the beginning of the period for the transfer of an object to a participant in shared construction, the violation of which entails liability under Law No. 214-FZ.

16. Administrative offenses, the elements of which are provided for in Article 14.28 of the Code of the Russian Federation on Administrative Offenses, due to the special significance of legally protected public relations that are the object of this administrative offense, cannot be recognized as insignificant.

16.1. The company applied to the arbitration court with an application to declare it illegal and cancel the decision of the department for supervision in the construction industry (hereinafter referred to as the administrative body) on bringing it to administrative responsibility under part 1 of Article 14.28 of the Code of Administrative Offenses of the Russian Federation (hereinafter referred to as the Code of Administrative Offenses of the Russian Federation) in the form an administrative fine in the amount of 500,000 rubles.

The Court of First Instance dismissed the company's claim, considering the following.

The objective side of the administrative offense provided for by Part 1 of Article 14.28 of the Code of Administrative Offenses of the Russian Federation is expressed in attracting funds from a citizen related to the citizen’s emerging right of ownership of a dwelling in an apartment building, which at the time of attracting such funds from a citizen was not put into operation in the manner prescribed by law on urban planning activities, by a person who, in accordance with the legislation on participation in shared construction of apartment buildings and (or) other real estate objects, does not have the right to do so and (or) attracts funds from citizens in violation of the requirements established by this legislation.

By virtue of paragraph 2 of Article 1 of Law No. 214-FZ, the attraction of funds from citizens, associated with the emerging right of ownership of citizens to residential premises in apartment buildings, which at the time of attracting such funds from citizens were not put into operation in the manner established by the legislation on urban planning (hereinafter referred to as the attraction of funds from citizens for construction), only:

1) on the basis of an agreement on participation in shared construction;

2) by issuing by the issuer, who owns or has the right to lease, the right to sublease a land plot and has received in accordance with the established procedure a permit for the construction of an apartment building on this land plot, bonds of a special type - housing certificates, fixing the right of their owners to receive residential premises from the issuer in accordance with the legislation of the Russian Federation on securities;

3) housing construction and housing savings cooperatives in accordance with federal laws governing the activities of such cooperatives.

The right to raise funds from citizens for the construction (creation) of an apartment building with the assumption of obligations, after the fulfillment of which a citizen acquires the right of ownership of a dwelling in an apartment building under construction (created) is held by developers who meet the requirements established by part 2 of article 3 of the Law No. 214-FZ.

The agreement on participation in shared construction is concluded in writing, is subject to state registration with the bodies that carry out state registration of rights to real estate and transactions with it, on the territory of the registration district at the location of the apartment building under construction (created) and (or) other real estate object, for the construction of which funds are attracted in accordance with this agreement, and is considered concluded from the moment of such registration (part 3 of article 4, article 17 of Law No. 214-FZ).

According to paragraph 1 of Article 3 of Law No. 214-FZ, the developer acquires the right to raise funds from participants in shared construction for the construction of an apartment building only after obtaining a construction permit in the prescribed manner, publishing, posting and (or) submitting a project declaration in accordance with the Law on Participation in shared construction and state registration by the developer of the right of ownership to a land plot provided for the construction (creation) of an apartment building and (or) other real estate objects, which will include shared construction objects, or a lease agreement for such a land plot.

Only after fulfilling these requirements, the developer has the right to attract funds from citizens.

In the course of a scheduled on-site inspection of the company, the administrative body established that it is a developer on the basis of part 3 of article 2 of Law No. 3 of Article 3 and Part 3 of Article 4 of the Law on Participation in Shared Construction, namely the attraction of funds from a citizen before the conclusion (state registration) of an agreement on participation in shared construction.

Under the agreement for participation in shared construction dated August 11, 2015, concluded between the company and the citizen, the company attracted funds from the citizen in the amount of 800,000 rubles.

Thus, at the time of receipt of funds from the citizen, the contract for participation in shared construction was not registered.

Based on the results of an audit on the basis of a protocol on an administrative offense for violating the requirements of the legislation on participation in the shared construction of apartment buildings and (or) other real estate objects, the administrative body issued a decision to impose an administrative penalty, by which the company was found guilty of an administrative offense, responsibility for which is provided for in part 1 article 14.28 of the Code of Administrative Offenses of the Russian Federation, and he was sentenced to a fine of 500,000 rubles.

Taking into account these circumstances, as well as the fact that the administrative body of the company complied with administrative responsibility, the court of first instance found justified the conclusions of the administrative body on the presence in the actions of the company of an administrative offense under Part 1 of Article 14.28 of the Code of Administrative Offenses of the Russian Federation.

The company petitioned the court to release it from administrative liability on the basis of Article 2.9 of the Code of Criminal Procedure of the Russian Federation due to the insignificance of the offense committed.

In accordance with Article 2.9 of the Code of Administrative Offenses of the Russian Federation, if the committed administrative offense is insignificant, the judge, body, official authorized to decide the case of an administrative offense may release the person who committed the administrative offense from administrative responsibility and confine himself to an oral remark.

The court did not find grounds to satisfy the specified petition of the company, guided by the explanations of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation.

According to paragraph 21 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 24, 2005 No. 5 “On some issues that arise with the courts when applying the Code of the Russian Federation on Administrative Offenses”, an insignificant administrative offense is an action or inaction, although formally it contains signs of an administrative offense , but taking into account the nature of the offense committed and the role of the offender, the amount of harm and the severity of the consequences that have occurred, it does not represent a significant violation of protected public legal relations.

The Plenum of the Supreme Arbitration Court of the Russian Federation dated June 2, 2004 No. 10 “On some issues that have arisen in judicial practice when considering cases of administrative offenses” explained that the insignificance of an offense takes place in the absence of a significant threat to protected public relations. At the same time, the qualification of an offense as insignificant can take place only in exceptional cases. Circumstances such as the identity and property status of the person held liable, voluntary elimination of the consequences of the offense, compensation for the damage caused, are not circumstances indicating the insignificance of the offense. These circumstances, by virtue of parts 2 and 3 of Article 4.1 of the Code of Administrative Offenses of the Russian Federation, are taken into account when imposing an administrative penalty (clauses 18.18.1).

It followed from the materials of the case that the offense committed by the company was directed against the established procedure for raising funds for shared construction, posed a real threat to protected public relations, the rights of equity holders, and could not be considered insignificant. The absence of negative consequences is not grounds for recognizing the offense as insignificant.

(According to the materials of the case of the Arbitration Court of the Krasnodar Territory No. A32-27031 / 2016)

16.2. Similar reasoning was given by the court of first instance in a case related to contesting the decision of an administrative body on bringing the company to administrative responsibility, provided for by Part 2 of Article 14.28 of the Code of Administrative Offenses of the Russian Federation, the disposition of which is publication in the media and (or) placement in public information and telecommunication networks the developer of the project declaration (including amendments to it) containing incomplete and (or) inaccurate information, the provision by the developer of incomplete and (or) inaccurate information, the publication, placement or provision of which is provided for by the legislation on participation in shared construction of apartment buildings and (or ) other real estate objects, as well as violation of the terms of publication and (or) placement of the project declaration or changes made to it.

Every quarter, the developer is obliged to make changes to the project declaration regarding the information provided for in clause 6 of part 1 of article 20 of Law No. 214-FZ (part 5 of article 19 of Law No. 214-FZ).

In violation of the norms of articles 19, 20 of Law No. 214-FZ, the developer company did not make changes to the project declarations for construction projects regarding information on the financial result of the current year, the amount of accounts payable and receivable for the 4th quarter of 2013.

In this regard, the court came to the conclusion that the company had committed an administrative offense under Part 2 of Article 14.28 of the Code of Administrative Offenses of the Russian Federation, and did not apply the norm of Article 2.9 of the Code of Administrative Offenses of the Russian Federation on insignificance, noting that an administrative offense encroaches on the procedure established by regulatory legal acts for carrying out entrepreneurial activities in the field of shared construction, and the circumstances of its commission are not exceptional.

The decision of the court of first instance was left unchanged by the decisions of the arbitration courts of the appellate and cassation instances.

(According to the materials of the case of the Arbitration Court of the city of Moscow No. A40-155989 / 14).

16.3. In another case, the court of first instance found that in the course of the analysis of quarterly reports submitted by the company, carried out by the body exercising control and supervision in the field of shared construction of apartment buildings and (or) other real estate, it was established that, in violation of paragraph 8 of the Rules for the submission by developers of quarterly reporting on the implementation of activities related to the attraction of funds from participants in shared construction, approved by Decree of the Government of the Russian Federation dated October 27, 2005 No. 645, the presented reporting does not include a certificate of the presence of terminated contracts indicating the grounds for termination of each contract, which forms the objective side of the composition an offense provided for by Part 3 of Article 14.28 of the Code of Administrative Offenses of the Russian Federation.

Refusing to satisfy the company's application to declare it illegal and cancel the decision of the administrative body on bringing to administrative responsibility under part 3 of article 14.28 of the Code of Administrative Offenses of the Russian Federation, rejecting the company's argument about the insignificance of the offense, the court indicated the following.

A significant threat to public relations lies not in the occurrence of any material consequences as a result of an administrative offense, but in the applicant's disdain for the performance of his public duties and the formal requirements of public law.

The obligation to submit reports by developers is established for the purpose of exercising supervisory powers by the authorized body, including in the field of construction with the involvement of funds from participants in shared construction. Submission of reports not in full deprives the authorized body of the opportunity to exercise its powers of control, which entails a significant threat to protected legal relations.

The Company did not take all necessary and sufficient measures to comply with the provisions of Law No. 214-FZ, which provide for the protection of the rights, legitimate interests and property of participants in shared construction.

The decision of the court of first instance was left unchanged by the decision of the arbitration court of the appellate instance.

By a ruling of the Supreme Court of the Russian Federation, the company was denied the transfer of a cassation appeal for consideration in a judicial session of the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation.

(According to the materials of the case of the Arbitration Court of the Krasnodar Territory No. A32-14511 / 2016).

16.4. In the case of contesting the decision of an administrative body to bring the company to administrative responsibility, provided for by Part 4 of Article 14.28 of the Code of Administrative Offenses of the Russian Federation, the court also did not find grounds for applying the norm of Article 2.9 of the Code of Administrative Offenses of the Russian Federation.

According to Part 4 of Article 14.28 of the Code of Administrative Offenses of the Russian Federation, the failure by a person whose activities are related to raising funds from citizens and legal entities for the construction (creation) of apartment buildings and (or) other real estate objects, within the prescribed period, to the body exercising control and supervision in the field of shared construction apartment buildings and (or) other real estate objects, information and (or) documents that are necessary for the implementation of the specified control and supervision and the list of which is established by the state authorities of the constituent entities of the Russian Federation, as well as the provision of such information and (or) documents not in full or false information shall entail the imposition of an administrative fine on legal entities in the amount of fifty thousand to two hundred thousand roubles.

In violation of Part 2 of Article 19 of Law No. 214-FZ, fourteen days before the date of conclusion of the contract with the first participant in shared construction, the developer did not submit a project declaration to the supervisory authority specified in Part 2 of Article 23 of Law No. 214-FZ.

The court of first instance considered the conclusions of the administrative body about the existence of an administrative offense provided for by Part 4 of Article 14.28 of the Code of Administrative Offenses of the Russian Federation to be lawful, and since no evidence of the exceptional nature of the circumstances of the commission of this administrative offense was presented in the case, the court did not find grounds for recognizing the offense as insignificant and the application of Article 2.9 of the Code of Administrative Offenses of the Russian Federation in this case.

By a decision of a judge of the Supreme Court of the Russian Federation, the decision of the court of first instance was upheld.

(According to the materials of the case of the Arbitration Court of the Vologda Region No. А13-12171/2014)

Thus, the object of administrative offenses provided for in Article 14.28 of the Code of Administrative Offenses of the Russian Federation are public relations arising in the field of shared construction of apartment buildings or other real estate objects.

These offenses pose a significant threat to protected public relations, the rights of equity holders, including citizens participating in shared construction, concluding these contracts solely for personal, family, household and other needs not related to entrepreneurial activities, harm public relations in the field of effective control over construction, create obstacles in exercising control over the activities of the developer related to raising funds from participants in shared construction, which, in turn, leads to a violation of the rights and legitimate interests of citizens participating in shared construction, and a wide range of people are misled about the procedure construction of multi-apartment residential buildings (including the deadline for its completion).

The sanctions of Article 14.28 of the Code of Administrative Offenses of the Russian Federation establish significant fines for non-compliance with the requirements of the legislation on participation in shared construction (up to 1,000,000 rubles).

Due to the fact that such administrative offenses encroach on public relations that arise in a specially regulated area - the area of ​​shared construction of multi-apartment residential buildings, taking into account the nature of the offenses and the special significance of legally protected public relations that are the object of encroachment, they cannot be recognized as insignificant on on the basis of the norm of Article 2.9 of the Code of Administrative Offenses of the Russian Federation.

Document overview

The Presidium of the Supreme Court of the Russian Federation approved a review of judicial practice on disputes related to the participation of citizens in the shared construction of apartment buildings and other real estate.

It covers the issues of concluding, executing and terminating an equity participation agreement, as well as the responsibility of the developer, including the collection of penalties and administrative fines from him.

In particular, it is noted that the Law on Shared Construction also applies to a preliminary contract for the sale of an apartment, if in fact the contract of shared participation was meant.

In order to reschedule the construction period, the developer needs to conclude an agreement with the shareholder, which is subject to state registration. Non-payment by the shareholder of the contract allows the developer to terminate it only if this does not contradict the requirements of good faith and reasonableness.

A developer who has violated the deadline for eliminating defects can be charged a penalty under the Consumer Rights Protection Law.

In the event that the shareholder's right to a penalty has been transferred to a new creditor, it is calculated for the period from the moment the developer violated his obligations to the previous creditor, unless otherwise provided by the agreement.