Unscrupulous Developer And Zhsk, How To Be And What To Do?

Unfair developers, in order to avoid responsibility to those who have invested their money in the construction and acquisition of housing, are increasingly using the new "old" scheme for bypassing the Federal Law "On Participation in Shared Construction" - the creation of a Housing and Construction Cooperative.

The essence of HBC is that citizens, having combined their money (share contributions), organizing HBC or joining it, through the board of HBC and its chairman, I participate in the construction of housing for my own needs.

Everything seems to be simple, it remains to wait for the cherished square meters.

But suddenly, like a bolt from the blue: "The construction is frozen, there is no money, the developer is bankrupt, the citizens are shareholders - goodbye, and better:" Farewell, for we have forgiven you! ".

If you are reading this article - either you have already heard it, or suspicions are creeping in you or you are thinking about joining the HBC.

And there are questions: "And what happened? And where is the desired home? And where is the money? ".

Let's try to understand this question.

Whatever this happens, we recommend that you pay attention to the non-following and remember that not everything is lost.

"Gray" schemes for the withdrawal of funds through HBC.

The developer (who organizes all construction), owning or leasing a land plot for construction, attracts investors, i.e. those who will pay for the construction, and contractors - who directly builds, starting with the issuing of permits and before putting the house in Operation. Contractor often acts and a conscientious organization, moreover, has a certain authority in the circles of builders.

The developer through frontmen organizes HBC. Why HBC and not a "trip"? And because the responsibility of the Developer for FN "On participation in shared construction" in this case does not occur, even the Law on the Protection of Consumer Rights does not apply, since the relations of a member of HBC and HBC are regulated only by the Charter of HBC and the provisions of the Housing Code on housing Building cooperatives.

As a result, the money of the shareholders through the housing and communal services goes to other organizations, and the HCC itself answers to the members of the cooperative only with the property that they themselves contributed and, or they ask you for more contributions, or the HBC is declared bankrupt (sometimes liquidated).

On what it is necessary to pay attention.

It may well not be observed the procedure for creating the HBC itself or (and) accepting members of the HBC.

In accordance with Art. 121 LCDs of the Russian Federation, to become a member of HBC, it is necessary to observe the following conditions:

1). Apply for membership in a housing cooperative.

2). Approval of the decision to admit members of a housing cooperative to a general meeting of members of the cooperative (conference).

3). To pay an entrance fee.

Not observance of at least one of the conditions is the basis of the fact that you will not be a member of the cooperative. In this case, if a share contribution is made, the share agreement is concluded, then the legal relationship falls under the construction contract and, accordingly, under the Law on the Protection of Consumer Rights. This may be a re-qualification of the agreement on making share contributions to the contractor's agreement or in general the invalidity (nullity) of the transaction (recognizing the voidable transaction as invalid and applying the consequences of its invalidity, applying the consequences of the invalidity of a void transaction).

In this case, you have a chance to "press" the HBC as a contractor and involve the Developer as a joint debtor on the contractor's side and claim unjust enrichment.

It is necessary to apply carefully "Reclaiming property from someone else's illegal possession" - a vindication lawsuit. On it it is possible to claim only an individual-specific thing (for example, an apartment, a house), but not monetary funds.

Often, a member of the cooperative draws up a power of attorney to the chairman of the housing and communal services company to conduct activities in pursuance of the objectives of the HBC (negotiation, conclusion of contracts on behalf of HCC, otherwise). On the one hand, this is an opportunity to carry out economic activity promptly without convening a general meeting, on the other hand - you can not trace with whom, on what terms the contracts are concluded. The Chairman of the HBC and the Board can do anything.

Is it possible to terminate such contracts or to declare them null and void (insignificant)?

Let's clarify what a power of attorney is.

A power of attorney is a written authorization issued by one person to another person for representation before a third party.

The power of attorney for the performance of transactions requiring a notarial form must be notarized, except in cases provided for by law.

In our case, it is mandatory to notarize the power of attorney, or certified by a person having such authority.

In the absence of authority to act on behalf of another person or if such powers are exceeded, the transaction is considered concluded on behalf of and in the interests of the person who committed it, unless the other person (represented) subsequently directly approves the transaction.

If the power of attorney is filed improperly, and you subsequently did not approve the transaction, then the transaction (contract) is considered not concluded. Accordingly, the parties to the transaction must refund everything received for such a transaction.

And do not forget about the limitation period.

In the event of the liquidation of the housing cooperative, the provisions of the Civil Code are applied, in accordance with which all property of the cooperative, after settlement with creditors, is transferred to the participants of the housing and communal services in proportion to their shares. All contracts of HBCs with other persons are terminated, accordingly, all unperformed transactions are returned to the cooperative and, subsequently, to its founders (participants).

Well, if you are a member of the HBC and it is properly executed, if the construction is stopped or for other reasons, you can assert your rights by re-electing the Board and the Chairman of the Board. If it is impossible to re-elect the management of the HBC, you can leave the cooperative and demand the return of your share, including from third parties.

I will clarify, everything stated above is of a recommendatory nature, and each case must be considered separately.