Assignment of penalties and fines under an equity participation agreement

Equity participation in construction is a sore subject for our society. Earlier we already wrote about the next tightening of the screws in this area. But so far, no state control measures are capable of solving the problem in principle: even in relatively successful situations - when equity holders eventually get their apartments - violation of construction deadlines is more the rule than the exception.

Of course, the legislator seeks to somehow punish negligent developers. Thus, the Law on participation in shared construction No. 214-FZ provides that for the delay in the transfer of an apartment to a shareholder-citizen, the developer is obliged to pay a penalty (penalty) in the amount of 2/300 of the refinancing rate of the Central Bank of the Russian Federation of the contract price for each day of delay (part 2 of article 6 ).

In addition, if the apartment is purchased not for business, but for personal purposes, then the citizen has an additional right provided for by the Law on the Protection of Consumer Rights: he can collect a fine in the amount of 50% of the amount awarded to him from the developer.

Of course, in general, equity holders do not want to go to court and deal with the developer on their own. Most of them try to seek the services of lawyers. And here, consumers usually have a choice of two options:

1. Conclude a traditional contract for the provision of legal services

1. fixed prepayment + percentage of the result - the amount recovered in favor of the equity holder based on the results of the case;
2. only a percentage (most often, more than in the first case) of the result.

Let us immediately clarify at the same time that the conditions with an advance payment are legal and do not mean that the lawyer only wants to receive your money, after which he will not perform his work qualitatively.

Nevertheless, consumers are sometimes repelled from this option, firstly, by the need to make an advance payment for legal services, and, secondly, the consumer will be able to receive money in court at best in a few months. Therefore, the second option becomes quite popular.

2. The law firm buys from the equity holder the right to collect penalties and fines from the developer

In this situation, the consumer, under the contract of assignment of the right to claim, receives a certain amount from lawyers - albeit less than he is due, but guaranteed and immediately. Lawyers then sue the developer on their own and earn the difference between the amount paid by the developer as a result of litigation to the lawyer and the amount paid by the lawyer to the client.

Regarding the second option - the redemption of the right to collect money from the developer - there were doubts for a long time. Not only the equity holders themselves, but also the courts were wary of such schemes and were not completely sure of their legality.

All doubts in this part were dispelled by the Supreme Court of the Russian Federation. In the Review of Judicial Practice of the Supreme Court of the Russian Federation No. 3 (2015)

However, until the last moment, one question remained unresolved - whether state registration of an agreement on the assignment of rights to a penalty fee and a fine under an equity participation agreement is necessary. In one of the recent cases, the Supreme Court of the Russian Federation came to the conclusion that the contract for the assignment of rights to collect penalties and fines should be registered.

Therefore, if you wish to transfer to another person the right to collect penalties and fines under an agreement on participation in shared construction, such an agreement (agreement of assignment of the right to claim or assignment) must be registered with Rosreestr.

However, there can also be nuances here: if the law firm promised to pay you the amount immediately, then when signing the contract, the money for the assignment should be paid immediately. But most often, through the use of an assignment agreement, lawyers guarantee themselves the receipt of remuneration from their clients: they receive the amount of money collected from the developer in full and pay the agreed percentage to their client. Therefore, when concluding an assignment agreement, it is important to carefully read the procedure for payment and transfer to a law firm of rights under an assignment agreement to demand a debt from the developer.

Therefore, when choosing the path in which you will go to demand from the developer the penalties and fines due to you by law, be very careful - promises before the contract and the terms of the contract can vary greatly.

In addition, we would like to inform you that the lawyers of KA "Yurproekt" provide citizens, individual entrepreneurs and legal entities with legal assistance in the matter of collecting the amounts of penalties, fines, debts under equity participation agreements in connection with its termination and compensation for moral damage. You can familiarize yourself with the conditions for the provision of legal assistance in the "Services" section.

Author

Daria Vladimirovna Tretyakova

Head of representative office in Moscow