Hello, Andrey Sergeyevich. In this case, it makes sense for you to apply to the court with a lawsuit declaring the ownership of the property to be recognized, which will allow you to get an apartment in the property with guarantee, register in it and save you from additional problems if the construction company suddenly decides to go bankrupt. You will receive a judgment without difficulty until the construction company objects to it. In order to encourage the construction company to hand over the house as soon as possible under the State Commission Act, you can file a lawsuit to recover a penalty for violation of the terms of the Agreement, as well as compensation for material and moral damage. Almost all agreements on shared participation in investing in the construction of a residential building contain conditions according to which a party that has violated the terms of the Agreement is obliged to pay a penalty to the other party. The amount of interest due is determined by the Agreement, however, as a rule, in such Agreements the amount of interest is provided for no more than 10% of the amount of the Participant’s share, and as a basis for payment of the penalty, the Agreements indicate - non-observance of the terms for the transfer of the apartment to the Interest Holder, and the term for the transfer of the apartment to the Interest Holder associated with the date of transfer of the house under the State Commission Act, and not with the completion of construction. On these nuances of the legislation in some cases, Developers manage to avoid payments to Interest-holders. However, you have the right to demand from the Developer not only the penalty stipulated by the Agreement, but also the penalty stipulated by the current legislation. This right is enshrined in: part 1 of article 332 of the Civil Code of the Russian Federation: “The creditor has the right to demand the payment of a penalty determined by law (legal penalty), regardless of whether the obligation to pay it is provided by agreement of the parties.” Moreover, even if the Developer has included in the Agreement a condition that, in case of failure to fulfill its obligations, you waive your right to demand a legal penalty, and only agree that you can demand a fine that is less than the size of the legal penalty, this the terms of the Agreement will be declared null and void by the court on the basis of Part 2 of Art. 400 of the Civil Code of the Russian Federation: “An agreement on limiting the amount of liability of a debtor under an accession agreement or other agreement in which a citizen acting as a consumer is a creditor is void if the amount of liability for this type of obligation or for this violation is defined by law and if the agreement is concluded before circumstances leading to liability for non-performance or improper performance of the obligation. " The amount of the penalty is calculated depending on the specific circumstances of the case. For example, on March 31, 2005, the Federal Law of the Russian Federation of December 30, 2004 N 214-ФЗ “On participation in shared construction of apartment buildings and other real estate objects and on amendments to some legislative acts of the Russian Federation” came into force, which settled “relations related to raising funds from citizens and legal entities for shared construction of apartment buildings and (or) other real estate objects on the basis of an agreement on participation in shared construction and the occurrence of shared building ownership of the shared construction sites, and provides guarantees to protect the rights and legal interests and property of participants of shared construction. " On the basis of part 2 of article 27 of the Federal Law of December 30, 2004 N 214-ФЗ, the effect of this law "applies to relations associated with raising funds from participants in shared construction for the construction (creation) of apartment buildings and (or) other real estate whose construction permits were obtained after the entry into force of this Federal Law. ” Those. it depends on when the Developer received permission to build a residential building, on the basis of which law you will calculate the amount of the penalty due to you. If the permit for the construction of a residential building was obtained before March 31, 2005, then the amount of the penalty should be calculated on the basis of the Law of the Russian Federation of 07.02.1992 N 2300-1 "ON THE PROTECTION OF CONSUMERS 'RIGHTS". If a permit for the construction of a residential building was obtained after March 31, 2005, the amount of the penalty should be calculated on the basis of the Federal Law of the Russian Federation dated December 30, 2004 N 214-ФЗ “On participation in shared construction of multi-apartment buildings and other real estate and on making changes into some legislative acts of the Russian Federation. ” In addition, you have the right to demand from the Developer to compensate you for the losses you have incurred. For example, at the time of the delay by the Developer of its obligation related to meeting the deadlines for the completion of construction, you were forced to rent a living space. In this case, you have the right to demand reimbursement to you of the costs associated with renting a dwelling. To do this, it is necessary to submit to the court a contract for the rental of premises, as well as documents confirming the amount of money paid by you for the rental and maintenance (utilities) of the premises.
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