A. Gabbasov Shares in housing construction is widespread in our country. Construction and investment companies raise funds equity holders (investors), and these funds are building a house, then this house become the property interest holders. It is very convenient, because the buyers have the ability to pay for an apartment in installments until completion. In addition, the constantly rising price of real estate is an excellent way to invest free cash flow, because after the completion of the apartment house in it rise in price substantially. It seemed to be simple, clear and mutually beneficial. Today, however, the media shared construction often sanctified in a negative way, due to the fact that thousands of real estate investors were cheated by unscrupulous developers, without receiving their housing. To protect the participatory construction of unscrupulous contractors, the Federal Law № 214-FZ "On Participation in the shared construction of apartment buildings and other real estate" on 30.12.2004. This Act introduced more stringent requirements with respect to the developers, in connection with which most of them are perceived negatively law. Currently, the law is the basic legal act regulating relations in the field of participatory construction. If you intend to purchase a house in a new building through participatory construction, you might want to read the guidelines that can help avoid problems with unscrupulous developers. Conclude a contract of shared construction So, what to consider when entering into a contract of shared construction: First, choose a builder and object construction. No need to be a professional lawyer or a realtor, to understand one simple thing: the most objective assessment of the developer or investor - this is already implemented their facilities. If your city for many years running a construction company that has successfully implemented a number of real estate is a good argument to conclude a treaty. The absence of the company has realized projects in the construction field - at least a moment of reflection about the company's ability to complete the project. Notice the title of the treaty. Law on joint construction applies to contracts for a joint construction. If you are offered a contract, which is called "investment contract", "investment contract for the construction of residential houses", etc., and you are such an agreement called the "Investor" means the developer in such a way attempts to avoid the spread of the contract requirements of the laws "On joint construction "and" consumer protection "that you can have a negative moment. And although the jurisprudence shows that if the construction was carried out for personal use, the above laws apply to such contracts, it is better not to risk it. You want to buy an apartment and not become a party to the proceedings. Before you enter into a contract, ask the builder to produce a building permit, as well as find out where and how they will be published or posted a project declaration. The latter is his direct responsibility on the basis of 1 tbsp. 3 of the joint construction. Read the Declaration of the project. Remember that the contract for participation in the joint construction is concluded from the moment of state registration. Contract must contain the following conditions: the definition (description) to be surrendered to the object of shared construction, the term of the transfer of equity builder object construction, the contract price, terms and payment, warranty period for the object of participatory construction. In the absence of even one of these four conditions of the contract will be concluded. Shared construction contract in accordance with the Federal Law of 30.12.2004 № 214 "On Participation in the shared construction of apartment buildings and other real estate and on amending some legislative acts of the Russian Federation", which came into force from 14.04.2005 r ., the contract of the equity in the construction shall be in writing, subject to state registration and is made from the time of such registration. Requirements for the contract specified in paragraph 4 of Article 4 of the Federal Law № 214-FZ of 30.12.2004, which clearly stipulates that it must contain: the definition to be surrendered to a particular object share stroitelstvav according to the documentation developer after receiving permission to enter into service apartment building, and (or) other property; period developer transfer facility shared construction participatory construction, the contract price, terms and procedure of payment, warranty period for the object of participatory construction. The state registration of the contract of a joint construction, the developer signed with the first participatory construction is carried out on the basis of statements of the parties the contract (the builder, participatory construction). Along with the documents needed for registration, the developer must submit: building permits, project declaration, a plan created by a real estate object, which must specify its location, the amount being produced in the real estate residential and nonresidential facilities and the planned area of ??each of these premises. Protecting the rights of participatory construction For the protection of human participants in share of construction in the first place, should understand how the legal nature of a right to interest holders in the apartment: the original or derivative. If the original interest holders entitled to it regardless of other agreements that are in the chain between the share participant and builder. Accordingly, if a citizen has performed its obligation to pay, he has the right to demand the transfer of the apartment, regardless of whether the participants performed a chain of other agreements with its obligations. If the right is derivative interest holders, the legal fate of the contracts, which are associated with the emergence of this law is of great importance. In this case, the citizen's right to receive an apartment may not arise if, for example, a member of one of the contracts has not fulfilled the obligation to pay. For clarity, the following example. A citizen enters into a contract with the shared construction company B, in which the Company B for a fee, agrees to transfer a citizen in his own apartment. However, the society itself, the rights to an apartment, too, yet, so company B enters into a contract a contract with the society - the developer, according to which society B shall perform contract work for the society as well as payment for the rights are transferred to the apartment. Society B does not fulfill the obligation to perform work, respectively, the rights to the apartment it has not received. However, a citizen of a fulfilled its obligation to pay in full. If the right of the original interest holders, the citizen has a claim to transfer the apartment. If the right derivative, a citizen may demand compensation for damages only from the direct counterparty to the contract - from society B. Litigation matter is ambiguous, however, tend to define the right interest holders as the original. Share construction and mortgage deserves special attention and the contract of mortgage lending for the purchase of housing. Under this contract after the state registration of title deed until the loan acquired apartment is located in a pledge from a lender agreement lending participatory construction. Lending participatory construction requires more legislative regulation in order to protect the rights of citizens in borrowing. Unfortunately, there are rare situations where a mortgage loan agreement contains provisions that introduce a citizen in error, and in fact it leads to an inability to repay the loan and, accordingly, the loss of the apartment. Mortgage is a fairly widely used tool in the joint construction. Act 214 of the Federal Law leaves regulation of mortgage lending to special legislation. Statistics show that shared construction is one of the most popular areas of public relations. Nevertheless, are often deceived not only the interest holders, and developers - mainly contracts to attract additional forces to the erection of the construction (contract work, services). Assignment of contractual rights of a joint construction. Contract and becoming a party to share construction, some citizens fall into a situation where they can no longer fully pay all payments provided under the contract (in the case of installments). What to do in this situation? What are the ways to solve the problem there? According to the article. 11 of the Federal Law "On Participation in the joint construction" you can assign its rights under the contract to another person. Since the contract price is not paid in full, an assignment is only possible with the simultaneous transfer the debt to equity of the new construction in the manner prescribed by the Civil Code. This means that you will obtain the consent of the developer as a creditor under a contract of a joint construction in regard to the performance of the obligation to pay the contract price. In this case, the agreement on assignment of the contract and the transfer of debt should be the same as the treaty itself, is registered in the state registration of real estate and transactions with it. Please note that the period during which the law permits utupka participatory construction of claims under the contract begins only after the state registration of the agreement of a joint construction and ends at the time of signing the parties deed of transfer or other document of the object of participatory construction. In case of violation of the timing of payments under the contract of a joint construction, the size of the legal penalty is equal to 1 / 150 of refinancing rate of Central Bank of Russia effective on the date of the obligation of the overdue payment for each day of delay. Moreover, the systematic violation of the participatory construction timing of payments (namely, the delay of more than three times within 12 months, or make payment for more than 3 months) is the basis for making the developer claims to terminate the contract in court.
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