Reorganization of the developer: how buyers of apartments in the Kemerovo LCD "Wings" to protect their rights

The Kemerovo region is one of the few regions of Russia where the problem of "deceived equity holders" is not acute: in addition to "Tibet-SV" there were no serious precedents for violating the rights of citizens who purchase real estate under an equity agreement. However, according to lawyers of KA "Yurproekt", the threat of such a violation of rights may appear in the near future in relation to buyers of residential and non-residential premises in the residential complex "Wings" in the city of Kemerovo.

What is happening with the construction of the residential complex "Wings" and what rights do "shareholders" have?

In 2014, the municipal enterprise of the city of Kemerovo "City Department of Capital Construction", also known as MP "GorUKS" (TIN: 4206011405), assumed the obligation to build an apartment building at the address: Kemerovo, Leninsky district, microdistrict 27, pr Komsomolsky, 29 (Residential complex "Wings").

In 2015–2016, United Construction Company LLC sold to citizens under assignment agreements the right to purchase shared construction objects in this Residential Complex. At the same time, it is important to understand that the responsibility for the timely transfer of apartments and the elimination of all shortcomings remained with the developer - GorUKS.

The apartments of the first stage of construction were transferred with delay. Apartments of the second stage have not been transferred so far. At the same time, the deadline for the transfer of the second stage was set under the equity participation agreement no later than June 30, 2017.

After the expiration of the deadline for the delivery of a residential building, instead of handing over apartments, MP GorUKS began to send letters with a proposal to amend the contract and extend the term for handing over apartments. Some of the participants in shared construction agreed to such conditions, while others did not. The signing / non-signing of an additional agreement on the postponement of the transfer of premises affects only the period for which, according to the law, a penalty (penalty) is calculated for the delay in the transfer of an object of shared construction.

In addition to the right to pay a penalty by the developer, participants in shared construction have the right to demand:

1. Elimination of deficiencies (if the apartment is eventually transferred with deviations from the characteristics defined in the equity agreement)

2. Compensation for losses (expenses for renting housing for the period of untimely transfer of the apartment)

3. Compensation for non-pecuniary damage (experience due to construction delays)

4. Payment of a fine by a court decision (for refusing to satisfy the above requirements without a trial) and court costs (lawyers' services, expenses for notarization of a power of attorney)

Perhaps that is why the Administration of the city of Kemerovo on October 30, 2018 decided to reorganize the municipal enterprise-developer. In November 2018, the buyers of the premises received notices of a reorganization in the form of a spin-off.

As stated in the notice, during the reorganization of SE GorUKS, a new organization will be created (spun off) - MP ZhSU, to which part of the rights and obligations of SE GorUKS will be transferred.

At the same time, a situation is possible when one of these organizations will have sufficient funds to satisfy the legitimate claims of participants in shared construction related to the violation of obligations by the developer, while the other does not.

Thus, such a legal procedure as reorganization can be very beneficial for the developer and, at the same time, have a negative impact on the rights of participants in shared construction.

What and in what terms should buyers of apartments in the residential complex "Wings" take?

However, already now each of the buyers of premises in the residential complex "Wings" can protect their rights. The law provides for participants in shared construction as creditors of the reorganized organization certain guarantees of their rights. To do this, it is necessary to take active actions within a clearly defined time frame.

1. The reorganized developer must publish a notice of its reorganization twice with a frequency of 1 time per month on the State Registration Bulletin website, as well as notify all its creditors. The first message was published on November 14, 2018.

2. After the first publication, creditors have the right within 30 days (that is, until 12/14/2018) to require the reorganized developer to fulfill its obligations ahead of schedule (applies to those who agreed to postpone the transfer of the object until 02/28/2019), as well as demand the fulfillment of obligations that have already expired (including payment of a penalty, moral damages and compensation for losses).

3. The developer is obliged to take into account all these requirements when distributing assets and liabilities between MP "GorUKS" and the allocated MP "ZhSU".

4. If the requirements of the creditor are not fulfilled and sufficient security for the performance of obligations is not offered a (for example, an independent irrevocable guarantee of the Administration of the city of Kemerovo), joint and several liability to the creditor is borne by MP "GorUKS", a separate enterprise of MP "ZhSU" and the Administration of the city of Kemerovo.

Algorithm of actions of participants in shared construction using the example

The foregoing also applies to citizens who have applied to us at the board, who have concluded equity participation agreements in the construction of the Wings residential complex and who have fully paid the money to ESK LLC under assignment agreements.

Some agreed once with a change in the terms of transferring the apartment to them (until 01/30/18) without any compensation from the developer - they signed an additional agreement. But those deadlines have already passed. And therefore, this group of citizens has the right until December 14, 2018 to demand from the developer MP "GorUKS" payments:

1. Penalties (penalties) for the delay in the transfer of the object, which is calculated from the day following the last date of the transfer of the premises (in our case, from 01/31/2018), until the day when the apartment is accepted by the “shareholder” according to the transfer act. This is a floating date - not earlier than the commissioning of a residential building, but in any case after the elimination of all shortcomings in the transferred apartment. Attention! By signing the act “retroactively”, the buyer deprives himself of the opportunity to demand compensation for the period when the developer has not yet fulfilled its obligations and eliminated the shortcomings. On the example of an apartment costing 1 & nbsp; 200 & nbsp; 000 rubles. (this is the cost of the premises under the equity participation agreement; the cost under the assignment agreement is not always taken into account by the courts) the amount of the penalty as of November 28, 2018 is 181 & nbsp; 200 rubles.

2. Moral damage - from 10 & nbsp; 000 to 30 & nbsp; 000 rubles

3. Losses (expenses for renting housing) - 10 & nbsp; 000 rubles / month

In case of refusal to voluntarily pay the amount of the penalty and compensate for non-pecuniary damage, the developer, by a court decision, will be obliged to pay a fine - 50% of the amount recovered from the developer. That is, in our example, this is an amount of about 245 & nbsp; 100 rubles. But these amounts can be reduced by the court. And also reimburse the incurred court costs (payment for the services of a lawyer and certification of a power of attorney).

Where do citizens go to protect their rights

Due to the significant scale of possible negative consequences (there may be violations of the rights of more than 100 families), we decided to look into this situation and help participants in shared construction protect their rights.

Attorneys and lawyers of KA "Yurproekt" accept appeals from citizens and legal entities who have bought premises from MP "GorUKS", and prepare appeals with claims to the developer and to the court at the address: Kemerovo, Pionersky Boulevard, 3, office 307 and by phone: 8 (3842) 49-08-48.

Information on the working conditions of KA "Jurproject" can be found during a free consultation at the company's office (by appointment) and on our website www.jurproject.ru

Watch video with an interview from the participants of the story on the KA channel " Yurproekt" on YouTube

Author

Dmitriy Alexandrovich Malinin

Chairman of the Bar Association "Jurproekt"