Model claim for the recovery of penalties, compensation for losses and compensation for moral damages for improper execution of a contract for participation in the shared construction of an apartment building

In what cases is it necessary to write a claim to the developer?

you need to return the money paid to the developer for the apartment
The deadline for handing over the house and transferring the apartment to the participant in shared construction has been violated and you need to receive the corresponding penalty
construction of the facility is suspended or terminated
there are construction defects in the apartment (facility) and they need to be eliminated

See also: HOW TO OBTAIN A PENALTY FROM THE DEVELOPER

A claim to the developer demanding the return of funds is filed in cases where there are grounds provided for by law or contract for termination of the contract or unilateral refusal to perform the contract, or in the event of invalidity/non-conclusion of the contract.

In what situation is a claim made against the developer?

Expert opinion

Makarov Igor Tarasovich

Legal consultant with 8 years of experience. Specialization: criminal law. Extensive experience in document examination.

By and large, the basis for filing a claim is the developer’s violation of the terms of the contract. Moreover, it makes no difference how serious this violation is. But most often, claim work begins if:

there is a violation of the terms of construction and (or) transfer of the shared construction object (subject of the agreement) to the shareholder;
deficiencies were identified in the apartment, house, operation of engineering equipment and networks;
materials do not correspond to those stated in the design documentation;
the requirements of urban planning and other regulations and standards, SanPin were violated;
the presence of circumstances that directly violate the rights and interests of shareholders.

Almost every reason for writing a complaint to the developer is a pretext for a demand for payment of a penalty. You can read about how to collect a penalty from a developer in this material.

How to correctly write a complaint to a developer (contents)

There are no mandatory requirements for its preparation. The key point in drafting it correctly is the formulation of the requirement with which the participant in shared construction addresses the construction company.

To make it clear:

We are often contacted by equity holders, apartment buyers who, as it seemed to them, have long ago sent the necessary claim to the developer and consider him to be overdue in fulfilling his obligations, or have been corresponding with him for a long time.

When we study the documents, their contents, and responses to letters from the construction company, it turns out that the necessary requirement was never stated by the participant in shared construction.

And the content of such claims does not give rise to any legal consequences for the developer and the obligation to respond in any way.

We have to start all over again.

In whose name should the complaint be written?

Often construction companies have one name - their own commercial designation, but in fact the developers of different objects of this company (or as they usually call themselves “a group of companies”) are different legal entities in whose name construction permits have been issued.

It turns out that:

agreements with participants in shared construction are concluded on behalf of such legal entities. They must be responsible for the obligations under the concluded agreement.

What's the conclusion?

The claim to the developer must be written in the name of the legal entity with which you have entered into an agreement. Its details and correct name are usually indicated at the end of your contract, as the last paragraph.

Keep this in mind:

There is no need to indicate as the addressee the general director of the company or any of his employees - officials.
There is no need to state your requirements on the developer’s forms, according to his “standard form”, etc.
There is no need to indicate as the addressee the person the company employees indicate to you, who is not a party to your share participation agreement in the construction.
The claim is written in free form, with the exception of the wording of your requirement, that is, what you want to receive from the developer.

This will seem strange, but:

It depends only on you how and within what time frame the developer should respond to your appeal.

People often write like this:

“I entered into an agreement with you two years ago, you promised to give me the apartment three months ago, but the house has not yet been built. I ask you to look into the situation and take action.”

Or “...I ask you to speed up the transfer of the apartment.”

It is useless to write like this:

since such a requirement does not give rise to any legal consequences for a construction company.

He would have speeded up the transfer of apartments anyway if he could.

So what do you think he should do in response to such a claim?

Another tip:

If you are making a claim yourself, there is no need to pretend to be a lawyer who knows the laws and refer in the text to as many articles of laws as possible.

This does not affect the result:

It will not happen that the company’s lawyers will read the text of your appeal and be afraid of you as an expert in the law and will satisfy your demands, but the others who have not provided a link to the law will not be satisfied.

If the developer does not intend to voluntarily satisfy your request, he will not satisfy it, regardless of the content of your request.

So you won't make it any better.

Finally understand that:

At the stage of submitting a demand (claim), you do not pose any threat to the developer, i.e. no negative consequences will come to him, even if he refuses your demands.

Of the hundred people who submitted claims, if they are not satisfied voluntarily, only about 30% will go to court.

That's why:

Until a statement of claim has been filed in court, it is pointless for the developer to have any dialogue with you.

But you can only make it worse:

References to legal norms can only harm you, because... It will not be clear from the content of the claim on what legal basis you are making the claim, and in the event of litigation this will be of significant importance.

How to write a complaint to the developer

Despite the fact that the sample claim has not been approved, and this paper is not mandatory, there are a number of requirements when drawing up:

You must write down your details, including your current account and contract number, so that the developer can quickly resolve the problem.

Refer to the law or contract, which specifies the deadline for the delivery of the object; it is advisable that this be a specific point.

Write only to the point, there is no need to indulge in spatial stories about how long you have been saving money for this apartment and how bad you feel now.

Try to be consistent and give only a reasoned position, avoiding abuse, profanity, and offensive epithets.

Calculating the amount of the penalty is not only numbers, but also explanations that allow you to understand what the numbers mean.

Dmitry Trataevsky Project lawyer

As practice shows, it is better to include in a claim a calculation of all penalties provided for by law. It is also important to point out that on the basis of clause 6 of Art. 13 of the Law of the Russian Federation “On the Protection of Consumer Rights”, when the court satisfies the consumer’s requirements established by law, the court collects a fine of 50% from the manufacturer (performer, seller, authorized organization or authorized individual entrepreneur, importer) for failure to voluntarily satisfy the consumer’s requirements. from the amount awarded by the court in favor of the plaintiff.

How to properly submit a claim to the developer

There are mandatory and optional ways to serve a claim. The mandatory method must be used in any case, even if you have already served the claim using the second, optional method.

Optional method of submitting a claim to the developer

In order to quickly understand the developer’s position on your issue and, if necessary, go to court, we recommend that you draw up a claim in two copies (or make a copy of the claim) and hand it to an authorized representative of the developer.

It is advisable that:

on your copy of the claim there is such an authorized representative of the developer

Mandatory method of submitting a claim to the developer

This method must be used in any case.

Its purpose is precisely to record the fact of your appeal to the developer with a claim so that you can subsequently prove this event in court.

To do this you need:

Send your claim by mail to the developer.

It must be sent by a valuable letter (with a description of the attachment) and with acknowledgment of delivery, or in another way that ensures that the contents of the postal item are recorded. In the description of the attachment, you must indicate that you are sending a claim and briefly indicate its essence.

For example:

“Claim for a refund of money for an apartment under agreement No.____ dated __. __. __ G.".

It is very important where you send the mail. You need to establish the developer's current legal address.

How to do it:

obtain a certified extract from the Unified State Register of Legal Entities from the tax service
obtain an uncertified extract from the Unified State Register of Legal Entities on the tax service website

Never do this:

Without checking the address, do not send a letter to the address specified in your contract with the developer. It may not contain a legal address.

And if it is legal, then it could change.

The extract from the Unified State Register of Legal Entities must be current as of the day the letter was sent.

And if the addresses do not match:

If the actual address of the developer’s office location does not coincide with the legal address according to the extract from the Unified State Register of Legal Entities, then the claim must be sent to both addresses - legal and actual.

Receipts for sending the claim and an inventory of the attachment must be kept.

A small life hack:

Place the receipt and inventory in an opaque envelope or other dark place.

This is necessary to protect against fading of the dye.

It is unknown whether you will need them in the future, and it may be a long time before you need them.

Why is it so difficult?

This method of serving a claim frees you and your lawyer, who will handle your case in court, from certain risks in proving your position.

In addition, proving the moment of filing a claim affects the collection of penalties and fines in your favor and their amount.

Everyone loves numbers:

If you wrote a claim to the developer a year before you went to court, but failed to prove this event in court, or the developer managed to challenge it, then you will deprive yourself of the right to receive a penalty for the whole year.

With an apartment price of 3 million rubles. the penalty will be 600,000 rubles.

In addition, you can lose a legal fine, which will amount to 300,000 rubles.

Deadline for the developer to satisfy the claim

The time period for satisfying a claim by the developer depends on the requirement that is stated in such a claim by the participant in shared construction.

Term 20 days

established by law to satisfy the shareholder’s demand for the return of funds in the event of his unilateral refusal to fulfill the agreement in connection with:

failure by the developer to fulfill the obligation to transfer the apartment within two months
dissatisfaction by the developer of the demand of a participant in shared construction for free elimination of defects within a reasonable time, for a proportionate reduction in the contract price, for reimbursement of its expenses for eliminating defects
a significant violation of the quality requirements for a shared construction project
violation by the developer of the deadline for notifying the participant in shared construction about the termination of the guarantee agreement
in other cases

Term 10 days

established by law for the return of funds by the developer in connection with the termination of a shared participation agreement in construction at the request of a participant in shared construction (in court) in the following cases:

when construction is suspended or terminated, or when it has become obvious that the apartment will not be transferred within the period established by the contract
when significant changes are made to the project declaration, including in terms of the size of the property
the purpose of common property and (or) non-residential premises has been changed
in other cases

Many people don't know about this:

From January 1, 2021, the law on participation in shared construction will include a rule according to which, if the developer properly fulfills its obligations to the participant in shared construction and meets the requirements for the developer, the participant in shared construction does not have the right to unilaterally refuse to fulfill the contract out of court.

Now about the deadline for eliminating deficiencies:

The deadline for satisfying the requirement to eliminate free of charge the detected deficiencies of a shared construction project is established by law as reasonable.

It's hard to believe, but:

A participant in shared construction, when sending a claim of this content to the developer, must independently set a period within which, at his request, the deficiencies must be eliminated.

Such a period must meet the requirement of reasonableness.

This means that the period must be sufficient to eliminate specific deficiencies, without being unreasonably long.

When setting a deadline, a balance of interests between the developer and the participant in shared construction must be observed, and the technical side of the issue must also be taken into account - what period is necessary to eliminate specific deficiencies.

And how to take it into account?

When drawing up a claim to eliminate the shortcomings of a shared construction project, we usually consult with construction experts.

This is how we take into account the technical side of the issue and determine a reasonable period.

What to do if the developer does not respond to the claim or refuses

When the deadline for considering your claim and satisfying the requirements contained in it has passed, the question arises of what to do: wait further, demand a written refusal from the developer, write a second claim, complain to the Housing Committee, Rospotrebnadzor, etc.

There is one thing to understand and remember here. If the developer has not satisfied your requirements contained in the claim within the period established by law for satisfying the relevant requirement, this is essentially a refusal to satisfy your claim.

Only the fact that the requirement has been satisfied has legal significance, and if this does not happen, then there is no need to wait or receive anything additional from the developer. Then you are simply wasting time. The developer already knows about your requirements for him. If he had plans to satisfy your demands, you would have already known about it.

If the developer nevertheless responded to you and sent a written refusal, we recommend that you show it to us and consult; perhaps the content of such a refusal will require certain actions to be taken at the pre-trial stage.

In both cases, it is already necessary to prepare documents for filing with the court if you really want to get what you demanded from the developer in the claim.

Is it possible not to write a claim, but to immediately file a lawsuit?

It is possible, but not in all cases, since the grounds, for example, for terminating a shared participation agreement at the request of a participant in shared construction may provide for a procedure for mandatory sending the corresponding request to the developer before filing a claim in court.

In addition, filing a claim before going to court may affect the amount of compensation collected by the court, as well as the collection of a fine under consumer protection legislation.

You can get a judge who refuses to collect a fine if a claim was not sent to the developer before going to court, although from the point of view of the law this is incorrect.

For these reasons, we usually prepare and send a claim to the developer with a legal basis for the stated claim, providing ourselves with appropriate evidence for the filing of the claim for trial.

Who can file a claim against the developer?

The shareholder who has entered into an agreement must familiarize himself with the apartment’s delivery deadline so that if it is missed, he can file a claim. Practice shows that such complaints often go unheeded, and you have to go to court, calculating a penalty. Whether to write a claim or not is up to you; this step is not necessary before preparing for litigation, but this way you will already begin to collect evidence, one of which will be a claim and notification of receipt of the letter by the developer.

Dmitry Trataevsky Project lawyer

It is worth remembering that filing a claim with the developer in the event of a violation of obligations under the contract by the latter is the right of a participant in shared construction. Federal Law of December 30, 2004 N 214-FZ (as amended on July 13, 2015) “On participation in shared construction of apartment buildings and other real estate and on amendments to certain legislative acts of the Russian Federation” and the Law of the Russian Federation “On the Protection of Consumer Rights” does not contain a requirement to present a claim before going to court. However, the existence of a claim will be a serious argument for the court to satisfy the shareholder’s demands.

Sample complaint to the developer for violation of deadlines for delivery of the house and payment of a penalty

____________________________________________ (indicate the name, OGRN of the developer) From __________________________________________ (indicate your full name) Address:_______________________________________ (indicate the address for sending a response) Tel.:________________________________________ (indicate the telephone number for communication)

CLAIM for violation of the deadline for transfer of the apartment and payment of a penalty

Between me and ________________________________ (indicate the name of the developer) __. __.20__, agreement No. __________ was concluded for participation in the shared construction of an apartment building.

In accordance with the terms of the concluded agreement, the developer undertakes to transfer the apartment to the participant in shared construction no later than __. __ .20__ according to the acceptance certificate.

To date, the apartment has not been transferred to me, the construction of the house has not been completed, and the developer has not received permission to put the facility into operation.

In accordance with clause 2 of Article 6 of the Federal Law “On participation in shared construction of apartment buildings and other real estate objects and on amendments to certain legislative acts of the Russian Federation”, in connection with the violation of the deadline for transferring the apartment to me, I demand to pay a penalty at the rate of 1/300 of the rate refinancing by the Central Bank of the Russian Federation from the contract price in double the amount for each day of delay, which currently amounts to __________ rubles.

If the penalty is not paid to me voluntarily, I will be forced to go to court to protect my violated rights and collect the penalty, as well as monetary compensation for moral damage caused to me, legal expenses and a fine in accordance with paragraph 6 of Article 13 of the Law of the Russian Federation "On the protection of consumer rights."

In addition, in the event that the apartment is not transferred to me no later than __. __. 20__ I will be forced, in accordance with clause 1 of Article 9 of the Federal Law on participation in shared construction, to unilaterally refuse to fulfill the agreement concluded between us and demand the return of the amount of money paid under it in the amount of _______ rubles, as well as compensation for my losses in the form of the difference between the contract price and the market value of a similar apartment, determined by conducting an appraisal examination.

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Claim against the developer if there is a violation of the deadline for delivery of the house.

The Law of the Russian Federation of 02/07/1992 N 2300-1 “On the Protection of Consumer Rights” does not provide for a mandatory claim procedure for resolving a dispute. There is also no provision for mandatory compliance with the pre-trial procedure for resolving a dispute in the field of shared participation in construction. Thus, in order to go to court, it is not necessary to first send letters to the developer with claims.

But there is one big exception to this order. You need to carefully read the agreement for participation in shared construction. Usually it contains a clause indicating that disputes and disagreements that may arise during the execution of the contract will be resolved by the parties through negotiations. In addition, it is worth paying attention to how long it takes for the party that received the claim with documents substantiating the claims to send a reasoned response (for example, within 10 calendar days from the date of receipt of the claim).

If you file a claim in court against a developer for the protection of consumer rights in connection with a violation of the deadlines for delivery of a house without a mandatory pre-trial settlement, such a claim will be left without consideration. Of course, subject to the presence of a corresponding condition in the contract.

Where and how to send a claim.

The claim should be sent to the place of state registration of the legal entity, which, by virtue of Article 54 of the Civil Code of the Russian Federation, is its location, unless otherwise specified in the agreement on shared participation in the construction of an apartment building.

Very “cunning” developers, in order to evade responsibility, refer to the fact that the claim was not sent to them, and therefore was not sent. Therefore, in order to prove your case in court, all correspondence should be sent by registered mail with delivery receipt. In the event that the developer avoids receiving the letter at the post office, it will be returned to the sender after the expiration of the storage period, which will also serve as evidence of compliance with the pre-trial procedure.

Sample claim to the developer for elimination of defects under warranty

CLAIM for elimination of defects under warranty

The warranty period for the object is 5 years from the date of transfer of the apartment to me. The apartment was transferred to me according to the transfer and acceptance certificate on __.__.20__.

During the warranty period, I discovered the following construction defects: (indicate in detail what the defects are, their locations), for example: the heated towel rail in the bathroom and heating radiators in all living rooms of the apartment do not correspond in quality to those agreed upon by us in the agreement for participation in shared construction , on the wall in a large room with an area of 18.3 sq.m. cracking of the plaster was detected.

In accordance with paragraph 2 of Article 7 of the Federal Law “On participation in shared construction of apartment buildings and other real estate and on amendments to certain legislative acts of the Russian Federation”, in connection with the discovery of deficiencies in the apartment transferred to me, I demand that they be eliminated free of charge within a reasonable time .

I believe that for these shortcomings, a reasonable period for their elimination will be no more than 10 working days.

If these shortcomings are not eliminated by you within a reasonable time, I will be forced to go to court to protect my violated rights and reimbursement of my expenses for eliminating the shortcomings, as well as monetary compensation for moral damage caused to me, legal costs and a fine in accordance with paragraph .6 Article 13 of the Law of the Russian Federation “On the Protection of Consumer Rights”.

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Basic Rules

Although the application to the court does not have a strict form, it is drawn up in accordance with the rules of office work. Samples of filing claims can be found on information boards and the court’s website.

The application must contain:

Name of the court.
Applicant details – full name, address, passport, telephone.
Defendant's details.
Document's name.
Circumstances of the case.
Links to laws.
Claim.
Number and signature.

Supporting documents are attached to the claim.