How to collect a fine for violating the deadlines for the delivery of a house?
The amount of the forfeit in case of violation of the terms of transfer of residential premises to the shareholder may turn out to be less than expected, since the period from April 3, 2020 to January 1, 2021 will not be taken into account when calculating it.In addition, the shareholder will completely lose the opportunity to receive it if he signs an agreement on the postponement of the terms ... In February, the Presidium of the Supreme Court of the Russian Federation approved a Review on certain issues of judicial practice related to the application of legislation and measures to combat the spread of coronavirus infection in Russia.
One of the paragraphs of this document is devoted to the collection of penalties in case of violation by the developer of the terms of the contract for participation in shared construction (DDU). We will figure out in which cases it is possible to receive compensation taking into account the new provisions and under what conditions it is not paid. Has the pandemic adjusted the rules for calculating the forfeit?
According to the current legislation in the field of shared construction, if the developer violates the established deadlines for transferring the object to the shareholder, a penalty is charged. Penalty for violating the terms of building a house Compensation is paid at the rate of 1/150 of the refinancing rate of the Central Bank of the Russian Federation for each day of delay from the date when the dwelling was to be transferred to the date of the actual transfer (signing of the corresponding act).
At the same time, the pandemic and related restrictions led to a delay in the construction of many facilities for objective reasons. And the legislator, in order to support the construction industry and prevent mass bankruptcy of companies, temporarily limited the liability of developers: penalties for failure to meet the deadlines in the period from April 3, 2020 to January 1, 2021 are not applied. Moreover, this provision is valid regardless of whether, before or after its introduction, the court decided to charge a penalty on the day the developer actually fulfilled his obligation.
When calculating a forfeit after a court decision is made (for example, if the deadline is missed during the moratorium, the forfeit is calculated from January 2, 2021), its amount is determined by the bailiff. If there are questions regarding the amount to be paid, the bailiff can apply to the court for its calculation. Regardless of the date of the court decision, the period from April 3, 2020 to January 1, 2021 is not taken into account in the calculation.
How to collect a forfeit?
To collect a forfeit, an agreement for participation in shared construction and documents confirming its payment will be required.
Also, an agreement on the assignment of rights, an agreement on changing the terms of the agreement, for example, in terms of the transfer period, inspection certificates, etc., may be attached to the DDU. To begin with, you should contact the developer with a claim, which sets out the requirements for the company (payment of a penalty, reimbursement of material costs, for example, the cost of renting an apartment, compensation for moral damage).
The document must indicate the calculation of the forfeit and the specific amounts of claims. Usually, the pre-trial settlement procedure prescribes the procedure for the pre-trial settlement of disputes, including the deadline for responding to a claim. After this period, you can submit an application to the court. As a rule, companies try not to bring such cases to court, since violation of the rights of equity holders may also result in a fine. But the developer can try to avoid responsibility.
So, you may be asked to sign a postponement agreement, which, in fact, changes the terms of the main contract. After signing such an agreement, you will no longer be able to claim compensation. If you do not agree with the postponement of the deadline and want to receive a forfeit, then it is better to file an appeal immediately - in this case, there are more chances that funds will remain on the company's accounts to meet the requirements.
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