The shareholder has recovered compensation from the Moscow developer for the violated deadline for the delivery of housing

But a phenomenal case was recorded in Kuzbass: for once, the court sided with the equity holder.

Julia Suntsova

A resident of Kuzbass, Yevgeny Arkhipov, obtained monetary compensation from the developer for violating the deadlines for transferring to him an object of shared construction - a one-room apartment.

At the same time, a one-room apartment was purchased in the capital - in a residential complex in the Vnukovo settlement of the Novomoskovsk district of Moscow, and the court was held at the place of registration of the plaintiff - in the Kemerovo region.

The developer - JSC "Specialized Developer Transport Interchange Hub "Rasskazovka" delayed the issuance of keys for 8 months.

In court, the respondent company allegedly insisted on force majeure beyond its control.

According to the developer, he is not to blame for the violation of the deadlines for putting the object of shared construction into operation. Construction was temporarily suspended in 2020 due to the introduction of a high alert regime on the territory of Moscow by the authorities due to the coronavirus infection. In addition, in the course of construction, Vnukovo International Airport made claims to the company about exceeding the highest absolute point of the residential complex, which led to the revision of project documentation and changes in construction parameters.

But the court did not consider the above arguments to be influencing the outcome of the case, since they cannot serve as a basis for refusing to satisfy the claims for the recovery of a penalty in accordance with the legislation on participation in the shared construction of apartment buildings.

The developer really suspended the construction of a residential complex from March to June 2020. He notified the participant of shared construction about this and announced the extension of the deadline for putting the multi-apartment residential building into operation for three months - until March 31, 2021. However, by this time the object was not ready. The deadline for handing over the apartment was postponed three times. As a result, a family of five received their apartment 8 months later - only on August 20, 2021.

The equity agreement was concluded in 2018. Initially, under the agreement on participation in shared construction, the Rasskazovka Transport Interchange Hub Joint-Stock Company undertook to transfer the apartment to the equity holder no later than December 31, 2020.

Plaintiff Evgeny Arkhipov did not accept this state of affairs and for some time tried to conduct "peace negotiations" with the developer. In September 2021, he sent a pre-trial claim to the developer by e-mail, and then by Russian Post, and offered to settle the dispute out of court - by paying a penalty for overdue days.

The developer ignored the requirements of the client, then the latter went to court.

It is also important that the plaintiff did not sign the supplementary agreement proposed by the developer to the agreement on changing the terms for the transfer of the object (!) Otherwise, the signature would mean the agreement of the shareholder with the changed terms of commissioning.

“In the sense of the above norm of the law, consent to change the contract in terms of postponing the transfer of the object for a participant in shared construction is a right, not an obligation. This position is clarified in question No. 9 of the Review of Judicial Practice of the Supreme Court of the Russian Federation No. 2 (2017), approved. Presidium of the Supreme Court of the Russian Federation on April 26, 2017”, - the decision of the Court of Appeal says.

The Mariinsky City Court satisfied the plaintiff's claim, but reduced the amount of the requested compensation three times: from 450,000 rubles to 140,000 rubles.

In the structure of the amount recovered from the developer: a penalty for violation of the terms of the contract (100 thousand rubles), compensation for moral damage (10 thousand rubles), a fine for non-satisfaction with the requirements of the consumer on a voluntary basis (30 thousand rubles), postage in the amount of (137 rubles) , state duty (3200 rubles).

“The court takes into account that, by attracting funds from participants in shared construction, the developer assumes responsibility for meeting the deadlines established by agreements for participation in shared construction”, - the court’s decision says.

The plaintiff appealed the decision of the Mariinsky City Court to a higher court, considering the amount recovered to be too low, but the Judicial Collegium for Civil Cases of the Kemerovo Regional Court upheld the decision.

Nevertheless, the case of Evgeny Arkhipov is unique: it is rare for the tenants, and even in the vulnerable status of a shareholder, to prove anything to the developer. The court precedent for a new building in the Vnukovo settlement of Moscow gives hope to thousands of equity holders who, in the coming difficult economic times, took the risk of sponsoring the construction industry. Most often this happens from the lack of alternatives, of course.

In Russia, the proverb has already become commonplace: "If you don't want to become a deceived shareholder, just don't join the share." But the main clients in shared construction tend to be young families with small children. They are in dire need of a solution to the housing problem, and they have no alternatives.

"In connection with sanctions and foreign economic policy, developers are now undoubtedly experiencing difficulties associated with import substitution and logistics. The construction industry in Russia is largely dependent on imported goods. Due to difficulties with the restart of supply chains, the delivery time for equipment and building materials may increase by six months - a year", - says Olga Volkova, head of the new buildings department at Kobaladze Realty.

However, delays in putting housing into operation are also not beneficial for developers, as the expert emphasizes for equity holders. Most developers work on project financing. The program of anti-crisis measures makes it possible to deposit money of equity holders in escrow accounts, but not more than for 2 years. Missing the deadline for delivery of housing leads to a "freeze" of large funds, as a result - the depreciation of money in the accounts of equity holders due to inflation. There has always been a risk of delaying the commissioning of equity construction projects. There can be only one advice here: choose a trusted developer.

"Delays in the delivery of new housing, unfortunately, are inevitable. In the current unresolved geopolitical situation, it is even difficult to say whether the problem will reach the global level, that is, it will affect all developers, or it will only affect some projects. In the future, the problem may be exacerbated by a drop in consumer demand for real estate in general and an increase in mortgage interest rates. It is possible that sales of square meters of housing will not cover construction costs. I think we may soon see more supply than demand in the market. Accordingly, construction will eventually cease to be profitable for developers. Again, only state support programs will be able to stimulate the market", - says the investor, real estate specialist Roman Kovalev.

"Of those projects that are already under construction, especially those built on escrow, let's hope that the commissioning deadlines will meet the deadlines in permits and equity participation agreements. But for new projects, the timeliness of delivery will be highly dependent on the moment they enter the market. In St. Petersburg, for example, the launch of new projects on the market is extremely difficult, especially if it is a point, and not quarterly development and is not carried out by a large developer. As a result, the number of objects to be commissioned and the supply on the market will decrease", - says Kirill Ruzanov, General Director and partner of Nachalo.Service Management Company.

Are there any delays in the commissioning of housing? This may well be with the housing that was sold under a sale and purchase agreement, and the construction was carried out at the developer's own expense or with funds raised from equity holders, but without escrow accounts yet. The decrease in sales by 50-60%, which has now occurred on the market, as well as the rise in the cost of a number of engineering systems, completely broke the financial models of such projects. But, in general, let's hope again. there will be few such situations on the market - no more than 10% of objects, the expert adds.

LAWYER'S COMMENTARY

Maria Arkhipova, Chairman of the Russian Bar Association "For Human Rights":

- First of all, you always need to thoroughly understand whether there was a force majeure or not.

We analyze the case of a shareholder from Kuzbass. What really happened here? In 2020, the state, without introducing an official state of emergency in connection with the coronavirus infection, did not fulfill its functions to protect persons engaged in entrepreneurial activities, including from such lawsuits. In fact, then, in connection with the introduction of the high alert regime, the Russian economy was paralyzed. This was not documented as force majeure, however, the developer could not fulfill his obligations exactly as in force majeure. In my opinion, all signs of force majeure were present. The developer must seek the restoration of his rights and recognize the circumstances associated with covid restrictions as force majeure. I do not support such behavior of citizens and consider this an abuse of the right.

There are, of course, diametrically opposed solutions. It happens that the case, indeed, does not apply to force majeure, and if in the aggregate there is no fault of the shareholder in the untimely delivery of the object, then the developer is obliged to transfer the housing to the buyer in a timely manner.

If this does not happen, the procedure is as follows:

- submit a claim to the company with the calculation of losses of both property and moral damage and demand compensation. In case of non-satisfaction of the claim in the pre-trial procedure, apply to the court. In almost all cases, if the claim is prepared correctly, the court takes the side of the buyer. The practice is already so widespread that in most cases such cases are resolved out of court. Filing a claim at the place of residence of the plaintiff in another region is an extra cost in case of loss, since travel expenses will also have to be reimbursed in favor of the winning party. In general, the location of the court does not affect the decision in any way, if there is already an established practice.

There is indeed a problem of recovery after a court win. You need to constantly work with the bailiff. However, if the company does not have property, then the production is practically unrealizable and it is unlikely that anything will be recovered from the debtor.