Equity participation has become widespread in Russia. Companies attract investors, they build a house with their funds, which then becomes the property of the latter. Thus, you can buy an apartment in installments and pay off the debt before the completion of construction. But this is not all the opportunities provided by shared construction. What the parties to the transaction need to know about this process, what to pay attention to - read on.
Nuances
In theory, everything is simple and clear, but in the media this process is covered in a negative way. Why is this happening? The interests of the parties to the transaction are protected by the Law on Shared Construction, which was adopted back in 2004. He introduced stringent requirements for developers. At the moment, this is the only regulatory document regulating shared construction. What does the client need to know when concluding a contract?
The developer and the object of the transaction. If the company has beenoperates on the market, has a number of implemented objects, then it can be considered as a contract partner. Contacting unverified organizations, especially people who are making a deal for the first time, is not worth it.
The Law "On Shared Construction" No. 214 applies only to contracts of the same name. Any other wording is not allowed. If the developer proposes to sign the "Investment Agreement", then he is trying to avoid the spread of the requirements of such regulations: the law "On shared construction", the Federal Law "On consumer protection".
Before you certify documents, ask the company for a building permit, find out where the project declaration is located, and read it. By law, the publication is a mandatory requirement for the developer.
The shared construction agreement is considered concluded from the moment of state registration. Otherwise, it will be considered invalid. The paper must contain a description of the object, the deadline for the transfer, the cost and procedure for payments, a guarantee.
Check documents
FZ stipulates that a company can raise funds only after obtaining permission, publishing a project declaration and registering ownership. If at least one of these conditions is not met, the citizen may demand a refund with interest. They are calculated at double the refinancing rate. According to the contract, the company must build a property within a specified period, and after obtaining permission fromstate bodies for commissioning to transfer it to the participant of the transaction. The other party agrees to pay the agreed price and accept the object (if permission is granted).
A written contract of equity participation in construction must be registered. Only after that it will take effect. Before signing documents, a citizen has the right to familiarize himself with the following papers:
- the constituent documents of the developer;
- certificate of state registration;
- certificate of tax registration;
- approved annual reports for the last three business periods;
- audit report.
Improve transaction security
From 2014, the norm of the Federal Law “On Insurance of Developers' Liability” comes into force, which applies to shared construction. What does it mean? In case of default or bankruptcy of the company, a person will be able to return the money. During the state registration of documents, the developer must provide a liability insurance contract or guarantee. Previously, it was possible to provide collateral as security for the transaction.
Insurance nuances
The contract is concluded in favor of the beneficiary - a citizen or legal entity whose funds were raised for construction.
Insured event - full or improper performance of the obligations of the developer, which is confirmed by a court decision.
The validity period of the document is similar to that specified in the shared construction agreement. However, the beneficiary can receive compensation even two years after the expiration of the transfer of the premises. The minimum sum insured is calculated based on the cost of housing. But it cannot be less than its market price.
This is how building equity is secured. The Federal Law also provides for the following settlement procedure:
1. A guarantee agreement was signed. If the developer has not fulfilled its obligations or has not provided an intelligible answer within the agreed period, then the client can apply with a corresponding requirement to the guarantor bank.
2. The transaction was secured by an insurance contract. The beneficiary must apply to the company or the mutual insurance company (OVS) within the specified limitation period for collateral. The law stipulates that payment must be made no later than thirty days from the date of submission of documents. At the same time, the presence of the developer's debt to the insurance company does not matter. This regulation only applies to contracts concluded after 2013.
Methods of securing obligations
We have already considered in what ways (according to the law) the client can return the funds spent. However, the presence of this clause in the contract does not guarantee payment of compensation. Various conditions and clauses can be entered into the document, with the help of which you can delay the time for fulfilling obligations. And all these"if" may not go beyond the law.
When construction is slow or does not start for a long time, the client may, without waiting for the deadline, demand to terminate the document in court. This possibility is provided if:
1) there was a termination or suspension of the construction of a house, which includes a shared object, in the presence of circumstances indicating that the object will not be transferred to the participant in the transaction within the period specified in the document;
2) there are more significant changes in the project documentation, including a significant correction of the size of the share object;
3) there is a decrease or increase in the total number of apartments included in the new building.
What else do you need to know about shared construction?
The date of putting the object into operation must be clearly stated (for example, “no later than 10/15/14”). Very often, developers use the advertising phrase: "in the IV quarter of 2014." This wording is incorrect. After two months from the specified date, the shareholder may unilaterally terminate the shared construction agreement. All you need to do is send a written notice. The developer is obliged to return the money received to the client's account within 20 calendar working hours and pay him pen alties. Or deposit this amount on a deposit that is opened in the name of the shareholder.
The total cost of the apartment indicated in the documents is calculated from the price per square meter of housing, multiplied byroom area. These numbers should also be listed. It is also worth paying attention to the description of the living space parameters: location, floor, address, area, number of rooms. The warranty period for the constructed apartment is 5 years.
When studying the documents, it is worth paying attention to from what point the interest holder must pay utility and operating costs. If this item is absent, then the obligation arises from the moment of signing the act of acceptance and transfer of the apartment, and not commissioning.
Problems inevitable?
Sometimes developers intentionally "forget" to include some of the items in the document. But the client may experience material losses even if the Shared Construction agreement is correctly executed. What does it mean? The developer can assign ownership rights to another legal entity. In this case, he will sell him the rights to all the apartments practically at cost. Then the intermediary firm at the market price assigns them to equity holders. At first glance, there shouldn't be any problems. However, in the event of a risk of unfinished construction or bankruptcy of the developer, the shareholder may make claims based on the amount specified in the contract. But the apartments were sold at cost, not market price.
Another common scheme
Registration of shared construction contracts counts down the moment of their entry into force. But very often borrowers use a different scheme. They offer to sign a preliminary contract. It contains almost the same items as inbasically, except for information about its entry into force. Such documents are not subject to mandatory state registration. In this case, the parties come to an oral agreement that the second participant immediately pays all the money for the apartment. The developer undertakes to enter into the main contract of equity participation in construction sometime in the future. The shareholder is sure that the transaction is executed correctly. But this "gray" scheme only takes the document out of the scope of the law.
Here's another popular maneuver. The developer concludes an agreement with the buyer, the subject of which is not the obligation to transfer property to the shareholder, but something else: financing of investment activities, assignment of the right to claim premises, and the like. That is, the whole essence of the document is determined by its content. But at the claim of the shareholder, the court may invalidate it, since in fact the document was created in order to evade liability under law No. 214.
In the morning - registration, in the evening - money
The agreement is considered to have entered into force only after entering its data into the Rosreestr. Until this moment, the developer has no right to accept money. So, this moment should be registered in the document. It is not worth believing the statements of employees that the documents will be registered "by the whole bunch" later, but money for construction is needed now. In rare cases, such assurances are true. The transfer to the Chamber of each document separately takes a lot of time. But the client can be deceived. Therefore, it is better to play it safe and wait until the equity transaction is registered.construction. The developer may insist on prepayment. But in this case, ask to show the contract for this object, which was concluded in a similar way. The registered document has a stamp, a seal, the signature of the responsible person of Rosestra and a number. If the transaction was paid for with funds from the mortgage, then this should be evidenced by a seal of encumbrance.
Often, developers themselves do not want to circumvent the law and receive funds before the paperwork is completed. But in this case, they need additional guarantees. For example, an open letter of credit in a bank. The client contributes funds to it at the time of signing the contract. But the developer will get access to them only after the equity participation in the construction of the house is registered. This measure simultaneously guarantees the solvency of the client and allows you to comply with the law.
Acceptance of the object from the developer
What do you need to know about shared construction at the stage of commissioning an apartment?
Firstly, this process should be treated with deliberation. Clarify all questions before signing the documents. All identified deficiencies must be reflected in writing in the act of non-compliance of the object. The obligations of the developer under the law are considered fulfilled from the moment the document of acceptance and transfer of the premises is signed. The participant has the right to demand the gratuitous elimination of deficiencies or a reduction in the transaction price. If defects were identified already during operation, then the developer is obliged to compensate the client for their elimination.
Second, don't give in to persuasion. Below are the most commondevelopers action schemes aimed at putting pressure on the client:
- they ask to sign papers, assuring that all problems will be fixed later;
- claim that they will draw up a “different act” that will reflect all claims;
- threaten that, in case of violation of the terms of paperwork, the client will have to pay a fine for rejecting the object.
Competent help
There are a lot of nuances that you need to pay attention to. Therefore, it is better to seek help from a specialist who knows how to properly draw up documents for shared construction, what you need to know and take into account at each stage of the transaction. Specialized specialists provide assistance in the following areas:
- Selecting a developer, checking his documents.
- Accompany the procedure for signing papers: analyze contracts, advise on possible risks, negotiate changes in conditions.
- Prepare and submit documents for registration.
- Accompany the client when accepting the object, regulate issues on the shortcomings of the premises, deadlines, payment of a pen alty, including in court.
- Draw up the termination of the document: control the return of the amount paid, the collection of fines, interest for the use of borrowed funds, as well as compensation for losses in excess of the pen alty (payment for lawyer services). In similar areas, assistance is provided in terminating a preliminary agreement, an investment agreement, a loan, etc.
Conclusion
You can buy an apartment in the primary market by filling out shared construction. What does a trader need to know? Lots of nuances. Starting with the rules for choosing an adequate borrower and ending with the features of filling out an acceptance certificate. Therefore, it is better to use the services of an experienced lawyer who will accompany the client at all stages of the transaction.
