How to recover forfeit from the developer: step-by-step instruction

. In case of non-compliance with the period of delivery of the facility, you can collect a penalty from the developer . The amount of compensation is 1/300 of the refinancing rate of the Central Bank, which was effective on the day of fulfillment of obligations. . Let's consider further how to recover a penalty on the Federal Law from the developer .

Specificity of calculations

, необходимо начинать расчет от даты нарушения установленного периода. In order to collect forfeit from the builder on business participation , it is necessary to begin the calculation from the date of violation of the established period. For example, if the agreement states that the object should be transferred on 01.10.2016, the calculations begin on 02.10.2016. In this case, the calculation is carried out before the date of execution of the acceptance certificate. This rule applies also in the case when the permit to put the building into operation was signed before it was drawn up. If a cession is made, under the terms of which the completion date of 01/01/2015, for example, is to look at what is stated in the share participation agreement. The last document may have a different calendar number. For example, the company undertakes to transfer the living space to the subject within a year from the end of the construction. Therefore, the compensation will be calculated from 02.01.2016.

Pre-trial settlement

передачи объекта в суде, необходимо соблюсти претензионный порядок. Before recovering a penalty from the developer for the delay in transferring the object to the court, it is necessary to comply with the claim procedure. What does it mean? Pre-trial procedure provides for the preparation of a claim and sending it directly to the developer. It indicates a violation committed by the company, a proposal is made to pay off the arrears. When registering a claim, special attention should be paid to the address of the recipient. It is indicated, as a rule, in the details of the agreement. However, experts recommend checking it on an extract from the Unified State Register of Legal Entities. You can get it if you have a company tax ID.

Features of sending

You can send a claim in two ways: in person or by mail. In the first case it is necessary to have 2 copies of the application. One is transferred directly to the developer, the second remains with the victim. On it the representative of the company should put a mark on registration. In particular, the date and signature of the official are put. The stamp is stamped or stamped. The usual period in which the developer must send an answer is 10 days. During this period, the company may decide to meet the requirements. However, it often happens that the firm refuses the applicant. через суд. In this case, it becomes possible to collect the maximum penalty through the court. By mail it is better to send a custom or valuable letter with an inventory. In this case, the ten-day period for the answer will be calculated from the date the claim was received by the addressee.

To whom to sue?

, необходимо четко определить, кто является ответчиком. In order to collect a penalty from the developer , it is necessary to clearly determine who is the defendant. In many cases, the victims are at this stage of complexity. As a general rule, the defendant will be the developer. However, not in all cases he is the subject with whom the agreement is concluded. Meanwhile, regardless of who is the second party - mutual fund, agent, etc. - the living space must be conveyed by the developer. Therefore, a claim is made against it. If there is any doubt as to who is acting as a developer, you should carefully study the building permit. It is issued to the company, which, in fact, is building the building.

Losses

потерпевший вправе требовать компенсации реального ущерба и неполученных доходов. Deciding to recover a penalty from the developer, according to the legislation, the victim has the right to demand compensation for real damage and lost income. The first is formed from the expenses that the applicant will incur or will have to pay to restore his violated right. Unearned income is the profit that a person could have under normal turnover conditions if the obligations were fulfilled. In determining the loss of profit, according to Article 393 of the Civil Code, measures taken by the creditor to obtain it are taken into account.

Rationale

The existence of damages must be documented. , вправе включить в расчет арендную плату за квартиру, которую он снимал до получения спорной жилплощади. Theoretically, the applicant, deciding to recover a penalty on the FZ from the developer , may include in the calculation of rent for the apartment, which he filmed before obtaining a disputed housing. In this case, it is necessary to attach an agreement on hiring, as well as a receipt of the owner about the receipt of money. If such documents are not available, the court may well refuse to include these expenses in damages. Meanwhile, in practice, even if they are available, it is not always possible to justify the requirements. In particular, the applicant may have a stamp on registration in his passport. At the same time he can live in a rented apartment. In this case it will be necessary to justify the reasons why the person occupied the rented premises. If an object is purchased at the expense of a loan and the agreement provides for an increased rate before the apartment is registered in the property, the difference between it and the ordinary interest can be included in the losses.

Package of documents

соглашению, необходимо собрать бумаги для предъявления их в суд вместе с иском. In order to collect a penalty from the builder under a business agreement, it is necessary to collect papers for submission to the court together with the claim. The package of documents includes copies of:

1. Contract of participation in construction. Applications are provided with it.
2. Payment papers certifying payment under the agreement.
3. Cession agreement (if it took place).
4. Claims, papers confirming its dispatch.
5. Documents certifying and justifying additional losses.
6. Correspondence with the company, if it was.

Making a claim

It is issued in accordance with the rules of the CCP. The claim specifies the court in which it is sent, information about the defendant and the applicant. The content indicates the facts of violation of obligations with references to the contract. In the petition, the requirements are given. A list of applications is then compiled. At the end, the date and signature of the applicant are put. Among the applications may be the calculation of penalties and damages. A lawsuit is filed to the court at the defendant's address. If the amount of the penalty is less than 50 thousand rubles, then the application is submitted to the magistrate at the location of the developer. This rule establishes Art. 23, part 1, paragraph 5 of the CCP.

Nuances

The court has the right to reduce the amount if it is disproportionate to the consequences that arose in connection with the breach of obligations. Reduction of the penalty is allowed in exceptional cases at the request of the respondent. The court, in turn, will have to specify the reasons for which the size will be reduced. This takes into account the degree of fulfillment of obligations by the respondent, the actual amount of damage caused in connection with the violation committed, other circumstances worthy of attention. . Thus, in some cases it will be possible only partially to recover the penalty from the builder .

Moscow

There are several options for filing a claim. Like a claim, it can be sent by mail or presented in person. In the latter case, in turn, it is possible to leave the claim in the office or to transfer directly to the judge at the time of reception. In Moscow, this can be done after lunch on Monday or in the first part of the day on Tuesday. At the same time, it is advisable to first clarify the address of the defendant to the judge's site. This information can be found in the office. If the claim is filed for the first time, you should ask the judge to see its contents and attachments to it. If everything is arranged correctly, a hearing may be scheduled on the same day. In some cases, judges do not accept lawsuits for acceptance proceedings. However, they can still check it for procedural errors.

Recommendations

After the suit is handed over, it is advisable to call the office 7-10 days later and find out about the fate of the application. If it is accepted for production, the applicant will be told the date and time of the meeting. By law, the court sends the ruling by mail. However, a citizen can apply for a personal receipt. If the claim is left without motion, the court will indicate which mistakes have been made and set a deadline for their elimination. It is necessary to keep within the period specified in the definition, otherwise the application will be considered unsuitable.

Process Features

не получится. It is necessary to prepare for the fact that it is not possible to quickly collect a penalty from the developer . On average, the process takes about 2-3 months. The first - preliminary - meeting will prepare for the trial. The parties are invited to an interview. Some developers are trying to delay the process. They begin to petition for the involvement of third parties, adjournment of the meeting and so on. The plaintiff in this case must convince the judge that all these manipulations are aimed at delaying the consideration of the case.

End the process

During the consideration of the case, all circumstances are clarified, the arguments of the parties are heard. After that the court makes a decision. At the meeting, its resolutive part is read out, that is, in fact, the outcome of the process. Within 5-10 days the decision is made in the final form. It comes into force within 30 days. This period is allotted for appeal. If the defendant does not challenge the decision, the plaintiff may receive a writ of execution. With him, he goes to the bailiff service. Employee FSSP accepts documents and opens the enforcement proceedings.

Appeal

Usually, developers who do not intend to pay damages and damages will appeal the decision made in the first instance. In this case, it is often very protracted. For example, the defendant can file an appeal with errors. The court, in turn, leaves it without movement, assigning time for their correction. As a result, the proceedings can drag on for months. Not every applicant has the opportunity to walk around the courts and defend his rights. It would be possible to entrust the matter to a qualified lawyer, but not everyone has the money to pay for his services. Developers, in turn, offer a peaceful solution to the issue, paying only part of the penalty. Some of the plaintiffs are satisfied with this option. в полном размере, ему нужно подготовиться к дальнейшим заседаниям. If the victim decides still to recover the penalty from the developer in full, he needs to prepare for further meetings. First of all, an appeal must be prepared for the appeal. The arguments given by the defendant should be answered competently, in terms of the rules of law. It may require the help of a lawyer. You can contact a lawyer for help in composing a review.

Enforcement proceedings

должен будет судебный пристав. The forecaster will have to pay the penalty directly from the developer on the DDU . As it was said above, the documents issued by the court are submitted to the FSSP. Executive production includes 3 stages. The first prepares for compulsory collection. At this stage, questions are resolved regarding the possibility of adopting the IL for production, voluntary payment of the established amount, measures are being taken to search for the debtor, etc. The second stage is the actual enforcement. At the final stage, production is terminated due to its execution or non-performance.

conclusions

не всегда бывает просто. As you can see, it is not always easy to recover a penalty from the developer on the DDU . When analyzing judicial practice, it is difficult to say unequivocally what the success rate is. Much depends on the honesty of the developer himself, the legal literacy of the plaintiff. In the event of a controversial situation, it must be remembered that, before going to court, it is necessary to comply with the claim procedure. In such cases, it is mandatory. This means that if the plaintiff does not produce documents confirming the sending of the claim to the respondent, his claim will not be satisfied. When drafting a preliminary requirement, it is necessary to express clearly and clearly its position. At the same time, there is no need to threaten. The claim must be in the official language. It is necessary to avoid emotional statements, to state the requirements on the merits. In this case, the developer should be warned that in case of dissatisfaction with the claim materials will be sent to the court.

In practice, there are cases when the respondent agrees to fulfill the requirements. With mutual desire, the parties can always come to a compromise. If the matter has not been settled peacefully, we will have to go to court. When drafting an action, it is necessary to be guided by the rules of civil procedure legislation. In the application must be indicated all the required details, stand the date and signature. Particular attention should be paid to the number of copies of the claim and its annexes. There should be as many as the parties in the case, plus one for the court. When calculating a penalty, you should not overestimate its size. The court will determine the correlation between the amount of compensation and the seriousness of the violation committed. The law provides for the possibility to reduce the amount of foreclosure. Particular attention should be paid to the calculation of losses. All losses must be justified and documented. It is necessary to remember that the proof completely lies on the plaintiff. In addition, one should be prepared for the fact that the matter will not be resolved quickly, as many expect.

Conclusion

Developers are different, not all of them are able to admit guilt and bear responsibility. The defendant may well involve a lawyer in the case. If the plaintiff does not have the opportunity to use the services of a lawyer, it may be very difficult for him to defend his case. In this case, one should only hope for the justice of the court. However, do not be afraid to go to court and demand recovery. The Constitution guarantees the protection of the rights of citizens. This should be used. The main thing is to rely on the rules of law in our actions. . We need to carefully study the procedural rules, the terms of the agreement, the existing practice on cases, analyze how one or another participant of the HBC collected a penalty from the developer . It takes time and takes away strength, but often the result is worth it. On individual issues you can completely consult a qualified lawyer.