Buying a home in a building under construction is a risky business. But for most shareholders, a happy day still comes when the developer offers them to accept the finished apartment. And this means that soon it will be possible to register it as property, make repairs and live. But the joy can be overshadowed by significant shortcomings. How to accept an apartment? What to do if defects are detected?

Don't miss the deadline for accepting an apartment from the developer

But in most cases, within a period of up to six months, the developer notifies the shareholder by phone or by registered mail that he is ready to transfer the apartment. Having received the notification, he must begin accepting the apartment no later than seven working days. If he delays this for more than two months, the developer can legally sign a unilateral acceptance certificate without his participation. And then it will not be easy to force the developer to subsequently satisfy the claims that have arisen. Therefore, just in case, you need to monitor whether the process of accepting apartments in your building has begun - call the developer from time to time, visit his website, look at the forum of shareholders of your house, if it exists.

It may happen that first the developer tells you that the transfer is about to take place, and then he himself begins to stall for time under various pretexts. In this case, hand over to him against signature or send by registered mail a claim regarding his evasion of transfer. Then the developer will not be able to shift the blame onto you for late acceptance of the apartment.

Inspection sheet

So, you came to the reception. You need to obtain an inspection sheet from the developer in which you will record any deficiencies found. The developer is obliged to issue it, whether he wants to or not. This document may have a different name, but the essence is the same. No inspection sheet - no normal acceptance.

Photo: waferboard

The following is included in the inspection sheet:

• a list of deficiencies and construction defects that were identified, with links to SNiPs confirming them;
• deadlines for eliminating defects and information about who will be responsible for this.

The inspection sheet is made in two copies (for the developer and), which are signed after inspecting the apartment and registered with the developer.

How to accept an apartment?

You can take over an apartment from the developer yourself if you have sufficient knowledge and experience in this matter. If you have doubts, you are not confident in your abilities, it is better to enter into an agreement with an expert who will help you find construction defects and document them correctly. This service is inexpensive, from 50 rubles/sq.m., but it allows you to save significantly more. An experienced expert can find a dozen defects “hidden” from you. It is useful to find out what shortcomings you have found in yourself before accepting your apartment, because the likelihood that you may have similar deficiencies is high.

Let us remind you what they check first:

• screed, ceiling, walls - for the presence of irregularities, deviations from the vertical and horizontal more than required by SNiPs, ceiling height;
• special attention to installation joints and seams of external walls, the presence of leaks;
• the quality of door and window openings, the quality of installation of the front door and window units, their performance, fittings;
• cold water and hot water risers for leaks, valve performance;
• sewer risers and tees;
• heating batteries, their fastening and connection to the heating system;
• ventilation, presence of hood;
• electrical wiring, meter, machines, network voltage;
• If the apartment is rented with a complete renovation, the quality of this renovation is checked.

Photo: Lingonberry

It is also recommended to take careful measurements, even if at the time of acceptance the official BTI measurement results have already been included in the documentation. But it won't hurt to double check. Especially considering the fact that according to the DDU, the final payments between the shareholder and the developer are made based on the actual area of ​​the apartment.

On the acceptance of common property

In accordance with the law, you can demand that all engineering systems in the house be equipped and function properly. After all, with the elevators not working, you simply won’t be able to do anything on your, say, twentieth floor. Unfinished common halls, flights of stairs, lack of lighting in the entrances, and a non-working garbage chute will also cause you a lot of inconvenience. As well as the condition of the roof, basement, technical floor.

Before accepting the apartment under the deed, the shareholder and the developer sign an Additional Agreement to the DDU, which stipulates the additional payment by the shareholder of a specific amount to the price of the DDU or the return of funds to the shareholder by the developer, then actual payments are made under this additional agreement.

If you disagree with the BTI measurements, the shareholder can double-check everything himself or by contacting an expert organization. And the result may not coincide with the BTI data. Usually this does not give much, since it is extremely difficult to force the BTI to correct the numbers in the documentation for the house. But you can try. Precedents for changes in BTI measurement results have been recorded in practice.

Another nuance is taking into account areas and loggias. They can be taken into account by the developer according to the terms of the DDU without a reduction factor, or with the generally accepted factor of 0.3 for a balcony and 0.5 for a loggia, or with their own coefficients, or even not taken into account at all. The problem arises precisely when the shareholder is required to pay for the surplus, and then it turns out that it arose due to the inclusion of the balcony area in the total area of ​​the apartment without a reduction factor. This is mainly practiced in Moscow, where in 2006, in order to cut off part of the waiting list for housing, a law was passed according to which the area of ​​balconies and loggias is fully included in the total area of ​​the apartment. At the same time, in Art. 15 of the RF Housing Code directly states that the total area is determined “with the exception of balconies, loggias, verandas and terraces.” Despite this, in judicial practice there are both decisions in favor of the shareholder and in favor of the developer.

Act of Handover

The inspection sheet is a preliminary document. The main document according to which the apartment is transferred from the developer to the shareholder is the transfer and acceptance certificate. It states that the rights to real estate and the responsibility for its maintenance are transferred to the new owner, and is a mandatory document when registering property rights.

Photo: Emily May

There is no single form for this document, but there are required columns. The act must indicate:

• date and place of signing the act,
• details of the developer, passport details of the shareholder,
• postal address of the house, apartment number, its actual area,
• complaints about the quality of the apartment, deadlines for correcting defects,
• developer guarantees in accordance with the law,
• whether the apartment was transferred according to the deed or the transfer was postponed to a later date.

The acceptance certificate is signed after final mutual settlements under the DDU, elimination of defects or reaching an agreement with the developer.

After you sign the deed of transfer of the apartment with the developer, you dispose of it, and you also bear responsibility for its safety. So the first thing you need to do after signing the deed and receiving documents for the apartment is to pick up the keys and change the locks, or even the front door, as quickly as possible. Then you will receive registration of ownership of the apartment.

If the developer refuses to eliminate deficiencies

Acceptance of an apartment may easily not go as smoothly as you expected. For example, the developer will refuse to sign the inspection sheet, which would record his obligations to eliminate deficiencies. He will put pressure on you in various ways, forcing you to accept an apartment with defects. He may insist on signing the acceptance certificate in the version he needs and make it clear that he is not going to correct any shortcomings you discover. This happens quite often.

Photo: Flemming Rasmussen

Although the law is on the side of the shareholder, the developer’s calculation is quite understandable: the shareholder has been waiting for a long time for his new apartment, now he faces a costly one, and therefore he would rather sacrifice 50-100 thousand rubles than litigate and delay repairs and occupancy. Here everyone decides for themselves what is more important to them: to get an apartment as quickly as possible and begin repairs, or to force the developer to eliminate construction defects free of charge. An important role is played by how significant the defects are and how difficult it is to eliminate them. It is one thing to seal the gap between the wall and the ceiling or change the valve, and quite another to correct the design flaws of a poorly functioning ventilation system.

The following option is also possible for the shareholder: sign the acceptance certificate without comments, register the ownership, and after that, order a quality examination and demand compensation through the court. True, if the defects are obvious and should have been identified during acceptance, then for the court this will be a reason to interpret the signing of the deed as an agreement by the shareholder to accept the defects. Another thing is hidden defects. If you have them, your chances of winning your case in court increase.

Remember that the developer’s position is also vulnerable. Particularly unpleasant for him is the payment of a penalty in case of failure to fulfill the deadlines for transferring the apartment under the DDU. In this case, the law provides for penalties, which can accrue quite a lot if there is a long delay in delivery. In addition, the shareholder has the right to recover compensation from the developer in court for material damages incurred as a result of the delay in transferring the apartment to him, which can also result in a decent amount.

Sometimes, citing various circumstances, the developer asks not to indicate the date in the acceptance certificate, which leaves him the opportunity to enter an earlier date. For the shareholder, such a move is also fraught with the fact that he will have to pay from an earlier date, and also, in the event of a penalty for late delivery, the developer will minimize its amount. Therefore, there is no need to sign the acceptance certificate without specifying the date.

Photo: Dan DeLuca

What can a shareholder legally demand when defects are discovered?

But you need to understand that even with a positive court decision, it will be difficult to actually get money from the developer. But the trial itself can be very difficult and, with postponements and appeals, drag on for a long time.

Problems with collecting penalties and other payments from the developer in court

In the vast majority of cases, equity holders have one or another claim against the developer, which relates to both violation of deadlines for transfer under the DDU and issues regarding the quality of construction. But developers - both small and well-known construction companies - are extremely reluctant to pay compensation.

There are financing schemes through a group of interrelated organizations, when the developer receives funds for construction exclusively through loans. When the developer sells apartments, the money ends up with the lender under a service agreement or interest on the loan. As a result, there is nothing to charge the developer for penalties, fines and correction of construction defects.

You can take comfort in the fact that legislation is tightening the requirements for the developer from year to year, reducing the possibility of financial manipulation, which forces the developer to correct construction defects and pay penalties.

Alisa Orlova

A developer's guarantee is required when purchasing an apartment in a new building. In this text, we will look at the basic laws that govern this obligation, clarify the deadlines and tell you what to do if a situation arises when you have to file a claim with the developer to eliminate defects under the warranty.

In modern legislation, any purchase of an apartment in a building under construction (or rather, shared participation in construction) is regulated by the provisions of Federal Law-214 - the law on participation in shared construction of apartment buildings. Additionally, it is necessary to take into account the norms of civil law - Art. 469 – 478 Civil Code of the Russian Federation. The consumer protection law also helps in protecting the rights of the shareholder.

What do the developer's warranty obligations mean?

To understand what the developer’s guarantee covers, let’s study the seventh article of 214-FZ. Paragraph one clearly states the developer’s obligation to transfer the object (apartment) to the shareholder, and the quality of this object must comply not only with the points specified in the share participation agreement, but also with other technical regulations and urban planning standards.

Law No. 214 protects shareholders who have entered into a share participation agreement with the developer.

Therefore, if you are planning a purchase using bills, shares or other forms, then think twice. Indeed, in this case, the claim to the developer regarding an apartment building will be regulated precisely by the Civil Code of the Russian Federation, without assistance from the relevant federal law. See. And even in this case, you need to understand that each situation is individual, and carefully study judicial practice.

What guarantees can a shareholder expect?

The developer's warranty for a new home includes two types of obligations. Thus, within three years, you can file a claim with the developer to eliminate defects under warranty for various engineering structures and other technological equipment. The list itself implies the overall system or its components:

• ventilation shafts and equipment;
• elevator system and related equipment segments;
• communal heating system;
• Housing and communal services systems are structures through which water, gas and electricity are supplied to the house.

You need to understand that the developer, unless otherwise specified in the contract, is responsible for the in-house systems. Therefore, if, for example, there are problems with gas pipes in the yard, you will have to separately prove that the developer has anything to do with this.

After the completion of a new building, within five years, you can demand that the developer eliminate deficiencies under the guarantee of objects that affect the structure of the building.

• Defects and problems with walls - both outside and inside. This also includes the condition of the entrances.
• Problems with building facades - falling off cladding, poor-quality materials due to which the façade is constantly wet, and other problems.
• Problems with the building's load-bearing structures. The most common problems are with ceiling tiles and their sagging in apartments.
• Defects in the default double-glazed windows and iron doors installed in apartments.

In Art. 8 of Federal Law-214 clearly states that the shareholder must require the developer to sign a certificate of non-compliance of the property being handed over with the construction requirements of Part 1 and Part 7 of Federal Law-214.

Also, the shareholder must refuse to sign the transfer deed. Therefore, if the developer claims that he will fulfill contractual obligations later, but at the same time demands to accept your apartment, feel free to refuse. This will help you get the developer’s claims under the warranty enforced in court. Although if warranty claims arose after the apartment was accepted, it’s okay - but there will be more litigation.

What the developer does not guarantee

For a layman in the law, it can be difficult to figure out what is covered by a builder's warranty and what is not. It states that the developer is responsible for deficiencies of a capital nature. But there is one trick that real estate lawyers use.

After the house is commissioned, the management organization bears responsibility for its internal condition. There is a list of requirements for their work. So, management companies are responsible for:

• current wear and tear and reduction in performance characteristics of various in-house equipment and systems;
• for the proper use of common premises and property in common property;
• for broken equipment and structures that were accepted without complaint from the developer using an acceptance certificate for home property;
• for compliance with the recommendations of the instructions for installing household appliances and plumbing fixtures;
• for stopping emergency situations with heating and sewer systems, for proper operation of ventilation and drains.

In summary, if the identified deficiency is not included in the above points, then you can study the documentation and try to file a claim with the developer.

Terms of fulfillment of warranty obligations

There is a common misconception that the developer’s warranty is supposed to last for 5 years. Actually this is not true. As mentioned above, this period applies to common building structures. For engineering – 5 years. But the condition of the roof is 10 years.

If a claim is identified and the developer agrees to eliminate the deficiencies, then in accordance with clause 2 of Article 7 of 214-FZ, the developer must eliminate the deficiencies “within a reasonable time.” Unfortunately, what a reasonable period is is not specified in the law, so each case must be considered individually. Usually this is 30 days, but the period can be extended.

In order to find out the elimination period in each specific case, experts analyze similar services on the market. And they focus on the average period within which third-party organizations offer to complete such work.

How to properly file a claim?

We have already found out what the warranty for a new building covers and for how long. Therefore, do not be afraid to file, even if warranty claims arose after the delivery of the house, acceptance of the apartment and other actions related to your ownership ().

Discovered claims can be filed either by one tenant or by using a collective claim. You can act similarly in the case of filing a claim in court - anyway, the judge, if necessary, can combine several claims into one consideration.

The first thing you do after discovering flaws is capture them in photos or videos. File a claim with the developer. In the complaint, you describe in detail the shortcomings and how they were detected (). It is advisable to refer to a regulatory document confirming your requirements. For example, if you took over a house in the summer, and in the winter it turns out that the apartment is very cold, find a government decree in your region, which should indicate temperature standards for residential premises in an apartment building. The claim must be submitted to the developer independently or by sending mail with an inventory of the contents. On the second copy you need to get a note from the developer’s representative confirming the receipt of the claim with the current date.

The response period may be no later than 10 days. It’s best to write “In accordance with the Consumer Rights Protection Law, I request you to provide a response in writing within no more than 10 working days.”

You need to understand that the developer can refer to the civil code, answer you and ask for more time to verify the information - this is an adequate process, since the developer will need to check whether the detected deficiencies fall within his area of ​​responsibility, or whether this is the prerogative of the management company. If you first contact the management company - and this is exactly what you should do - and attach the management company’s response to the claim, then the developer will not have such an opportunity.

Having started interaction with the developer, we recommend drawing up an act in which you need to indicate all the shortcomings in the construction of an apartment building. If the developer refuses to sign it, it’s okay, just make two copies, sign for them and send one to the developer by mail, remembering to keep the receipt.

It is worth understanding that in accordance with Article 7 of Federal Law-214 you have the right to demand:

How to force builders to eliminate shortcomings?

If the developer refuses to voluntarily eliminate all defects identified by the apartment owners, we recommend that you immediately go to court. In addition to the above requirements, you can try to get a penalty from the developer.

It is worth considering that lawyers often confuse the rules for collecting penalties under Federal Law 214 for failure to meet construction deadlines and the rules for collecting penalties under the consumer protection law for failure to fulfill warranty obligations.

Clause 5 of Article 28 of the latest law clearly states that the consumer can demand compensation for damages for violation of deadlines for completing work (this is more than 45 days after filing a claim). The penalty is charged for each day. And its size is determined from the price of the service. Often in claims they put 3% of the full price, multiplied by 1/300 of the refinancing rate of the Central Bank of the Russian Federation. It’s better not to split hairs here - the judge will still calculate the penalty according to the law, based on your specific case.

In judicial practice, there are cases when residents were helped by examinations performed by third-party unbiased organizations that proved the developer’s dishonesty. If the trial is won, the apartment owners will receive the money spent on experts back, along with other court costs (Part 1 of Article 98 of the Code of Civil Procedure of the Russian Federation).

Lawyer at the Legal Defense Board. Specializes in handling cases related to appealing illegal actions of officials, housing disputes, and collecting penalties from developers. Extensive experience in working under 214 Federal Laws.

Receiving the keys to a long-awaited apartment is a joyful event. But it can be overshadowed by shortcomings made by the developer. How can I influence the company and compensate for repair costs?

Reading time: 9 minutes

Receiving the keys to a long-awaited apartment is an unusual event in a person’s life. However, the family hearth may refuse to burn when a draft blows from all the cracks and the door hangs on one hinge. Construction defects and imperfections are something that can seriously overshadow the joy of moving into your own home. The situation is unpleasant, but, alas, not uncommon. New residents may encounter leaking taps and radiators, heaving floors, and cracked walls. Naturally, questions arise: when and how will deficiencies be eliminated, and how to force the developer to eliminate construction defects?

Acceptance of an apartment - what you need to pay attention to. Apartments with and without finishing

What should you pay attention to?

The interests of investors are protected by laws regulating relations between developers and buyers of new buildings. In particular, this is the law “On the Protection of Consumer Rights”, paragraphs 1 and 7 of Chapter 30 of the Civil Code of the Russian Federation, which provide for the procedure for accepting an apartment, as well as the federal law concerning issues of shared-equity construction.

The transfer of the apartment takes place in the presence of a commission, which includes the shareholder, a representative of the developer and a representative of the HOA, if one has already been created by that time. Before signing the transfer deed, the shareholder must inspect and declare all identified construction defects that require elimination.

The list of possible defects can be quite extensive, and its content largely depends on whether the apartment is rented with or without finishing.

It is easier to evaluate the quality of construction work in, since everything is “in sight” here. It is recommended to make sure that the front door, window and balcony double-glazed windows are installed correctly, that there are no cracks or curvatures in the walls and ceilings, that there is working ventilation, sewerage, water supply and heating radiators. It is also important to make sure that the electrical wiring is installed correctly and whether it is connected to the electricity meter.

When inspecting a furnished apartment, you must remember that it must be completely ready for move-in. First of all, pay attention to the quality of laying tiles in the bathroom and kitchen, wallpapering walls, installing interior doors, working plumbing, etc.

Real estate market experts advise equity holders to be extremely responsible when accepting an apartment. The state of euphoria from the proximity of the moment of transfer should not prevent you from noticing possible construction flaws. Of course, the developer is interested in the client not paying attention to the shortcomings or considering them insignificant. When inspecting an apartment, methods of psychological pressure are often applied to shareholders - they are rushed, distracted, and assured that marriage is not a marriage, but “that’s how it should be.”

If the buyer does not have the necessary qualifications to independently identify construction defects, it is better to invite an independent expert who will be able to detect even hidden defects and professionally substantiate claims against the developer, referring to current standards. If the shortcomings “come out” later, then it will be more difficult to prove the guilt of the builders.

Defects “delayed” - elimination of defects after the fact

According to Federal Law 214, the statute of limitations for correcting deficiencies at the expense of the developer is 5 years

However, not all defects are detected during a superficial inspection. A leaking roof and seams between slabs, and deficiencies in the heating system only appear with the arrival of autumn rains and the beginning of the heating season. But even in this case, the company is obliged to eliminate the defect free of charge. Like any product, a new building has a warranty period, during which defects are eliminated free of charge. In the case of facilities built in accordance with Federal Law-214, this period is 5 years.

This applies not only to apartments, but also to common property - facades, roofing, stairs, entrance lobbies. On the other hand, the developer is not responsible for defects that arise as a result of natural wear and tear or repairs of the property by the owner. To prove that the defect is the result of the negligence of builders, you need to obtain official opinions from competent organizations - repair services, management companies, independent experts, etc.

We fix defects

If the quality of construction and installation of engineering systems suits the shareholder, he puts his signature on the transfer deed and receives the keys to the apartment. If a defect is detected, a defective statement or other act is drawn up, in which all the shortcomings are recorded. It must be signed by a representative of the developer company.

Often, shareholders are asked to sign an acceptance certificate in advance, and in return they are issued a letter of guarantee in which they undertake to eliminate all defects. Practice shows that these obligations are not always fulfilled, and if they are fulfilled, it is extremely reluctant.

Ways to eliminate deficiencies. What is "reasonable time"?

According to Law No. 214-FZ, the shareholder has the right, at his own discretion, to demand from the company:

• eliminate defects free of charge within a reasonable time;
• reduce the cost of the contract by a proportionate amount;
• reimburse the costs of eliminating deficiencies incurred by the shareholder.

The “reasonable time frame” referred to in the DDU is a rather loose concept, so it is better to clarify the date of correction of defects immediately, at the time of discovery, and document it. Usually builders have from two weeks to a month to complete this, depending on the nature of the defect. But even if the deadlines were not recorded in writing, to eliminate construction deficiencies there is a time frame established by law - 45 days. If the defects are not eliminated during this time, you can start harassing the builders and threatening them with legal action. For each day of delay, the developer can receive a penalty, which, according to Federal Law No. 214, is 1% of the cost of the apartment. True, courts often consider this amount excessive and underestimate it.

Elimination of deficiencies by the developer is preferable to the other two points, which will almost certainly lead the parties to court.

Responsible developers try not to bring the matter to court - lawsuits have a bad impact on the company's reputation, so it is preferable for them to voluntarily eliminate the defect.

How to influence the developer?

The buyer can count on receiving material compensation from the company that caused a construction defect

But many companies take an unconstructive position and prefer to play for time in the hope that the shareholder will not want to waste his time and nerves and will carry out the repairs on his own. If you do not intend to give in and are determined to see the matter through to the end, then you must be prepared for litigation. Therefore, you need to carefully document the history of communication and correspondence with representatives of the developer, so that in court you can convincingly argue your position.

Law No. 214-FZ contains a provision that does not allow companies to delay eliminating defects indefinitely. The developer is obliged to transfer the housing to the shareholder no later than the date indicated in the DDU. Typically, the company allows six months from the date of commissioning of the house to hand over the keys to buyers. But if the shareholder refuses to accept an apartment with deficiencies, and the developer delays resolving the issue, then the situation may go beyond the agreed time frame. In this case, the buyer can count on receiving financial compensation from the company. You need to draw up and send a written claim to the developer, and if the builders do not respond to it within a month, get ready for a lawsuit. Before starting litigation, you should calculate the amount of the penalty that will be recovered from the defendant. This measure quite effectively disciplines irresponsible builders.

The most that a shareholder can demand from the developer, if he does not fulfill his obligations to eliminate deficiencies or does not compensate for repair costs within the agreed time frame, is to return the money paid for the apartment and interest for the use of them. The amount of compensation is established by law at 1/300 of the refinancing rate of the Central Bank of the Russian Federation. But, of course, such an outcome is undesirable for both sides of the conflict. This means we need to negotiate.

1. The developer is obliged to transfer to the participant in shared construction a shared construction project, the quality of which complies with the terms of the contract, the requirements of technical regulations, design documentation and urban planning regulations, as well as other mandatory requirements.

(see text in previous

1.1. When transferring a shared construction project, the developer is obliged to hand over to the participant in shared construction an instruction manual for the operation of the shared construction project, containing the necessary and reliable information about the rules and conditions for its effective and safe use, the service life of the shared construction project and its finishing elements, engineering systems. technical support, structural elements, products (hereinafter referred to as the operating instructions for the shared construction facility).

(Part 1.1 introduced by Federal Law dated July 3, 2016 N 304-FZ)

2. If a shared construction project is built (created) by a developer with deviations from the terms of the contract and (or) the mandatory requirements specified in Part 1 of this article, which led to a deterioration in the quality of such an object, or with other shortcomings that make it unsuitable for the intended purpose agreement of use, a participant in shared construction, unless otherwise provided by the agreement, at his own discretion, has the right to demand from the developer:

(as amended by Federal Law dated July 18, 2006 N 111-FZ)

(see text in previous

1) elimination of deficiencies free of charge within a reasonable time;

2) a proportionate reduction in the contract price;

3) reimbursement of their expenses for eliminating deficiencies.

3. In the event of a significant violation of the quality requirements for a shared construction project or failure to eliminate identified deficiencies within a reasonable period established by the participant in shared construction, the participant in shared construction unilaterally has the right to refuse to fulfill the contract and demand from the developer the return of funds and payment of interest in accordance with Part 2 of the article 9 of this Federal Law.

(as amended by Federal Law dated July 18, 2006 N 111-FZ)

(see text in previous

4. The terms of the agreement to release the developer from liability for defects in the shared construction project are void.

5. The warranty period for a shared construction project, with the exception of technological and engineering equipment included in such a shared construction project, is established by agreement and cannot be less than five years. The specified warranty period is calculated from the date of transfer of the shared construction object, with the exception of technological and engineering equipment included in such shared construction object, to the participant in shared construction, unless otherwise provided by the contract.

(as amended by Federal Law dated June 17, 2010 N 119-FZ)

(see text in previous)

5.1. The warranty period for technological and engineering equipment included in the shared construction project transferred to participants in shared construction is established by the contract and cannot be less than three years. The specified warranty period is calculated from the date of signing the first transfer deed or other document on the transfer of a shared construction project.

(Part 5.1 introduced by Federal Law dated June 17, 2010 N 119-FZ)

6. A participant in shared construction has the right to file a claim in court or present a written claim to the developer in connection with the inadequate quality of the shared construction project, indicating the identified shortcomings (defects), provided that such shortcomings (defects) were identified during the warranty period. The developer is obliged to eliminate the identified shortcomings (defects) within the period agreed upon by the developer with the participant in shared construction. If the developer refuses to satisfy the specified requirements out of court in whole or in part, or in the event of failure to satisfy the specified requirements in whole or in part within the specified period, the participant in shared construction has the right to file a claim in court.

(Part 6 as amended by Federal Law dated July 3, 2016 N 304-FZ)

(see text in previous)

7. The developer is not responsible for shortcomings (defects) of a shared construction project discovered during the warranty period if he proves that they occurred as a result of normal wear and tear of such a shared construction project or its finishing elements, engineering support systems, and structural elements. , products, violation of the requirements of technical regulations, urban planning regulations, other mandatory requirements for the process of operation of a shared construction project or its finishing elements, engineering support systems, structural elements, products, or due to improper repairs carried out by the participant in shared construction or third parties involved by him, as well as if the shortcomings (defects) of the shared construction object arose as a result of violations of the rules and conditions for the effective and safe use of the shared construction object, its finishing elements, engineering systems included in the instructions provided to the participant in the shared construction technical support, structural elements, products.

(part 7 ed.

Federal Law of July 3, 2016 N 304-FZ)

Deadline for elimination of deficiencies by the developer

text in previous)

8. For violation of the deadline for eliminating shortcomings (defects) of a shared construction project, provided for in Part 6 of this article, the developer pays the citizen - participant in shared construction, purchasing residential premises for personal, family, household and other needs not related to business activities, for each day of delay a penalty (fine) in the amount determined by paragraph 1 of Article 23 of the Law of the Russian Federation of February 7, 1992 N 2300-1 “On the Protection of Consumer Rights”. If the deficiency (defect) of the specified residential premises, which is the object of shared construction, is not the basis for recognizing such residential premises as unsuitable for habitation, the amount of the penalty (penalty) is calculated as the percentage established by paragraph 1 of Article 23 of the Law of the Russian Federation of February 7, 1992 N 2300 -1 “On the protection of consumer rights”, from the cost of expenses necessary to eliminate such a deficiency (defect).

(Part 8 introduced by Federal Law dated July 3, 2016 N 304-FZ)

How to force the developer to fix all the defects in the apartment

Since the beginning of 2012, the hotline of the Moscow Department of Urban Development Policy has received 230 complaints about construction defects in Moscow new buildings. And we are talking only about municipal houses.

In Moscow as a whole, according to the capital’s mayor Sergei Sobyanin, 88% of houses built from 2009 to 2011 were commissioned with defects and deficiencies. In principle, developers can be forced to correct deficiencies or return money. But you need to be patient, document everything, demand confirmation of delivery of letters, and most importantly, do not sign the acceptance certificate for the apartment until the defects are eliminated, emphasize experts from the analytical center “Real Estate Market Indicators IRN.RU”.

As officials and experts note, in recent years the situation with the quality of construction has improved somewhat. If we talk about municipal housing, in 2011 the number of complaints about construction defects decreased by 24.2% compared to 2010.

“In recent years, the quality of construction has definitely improved,” says Pavel Lepish, CEO of Domus Finance. — If you remember the real estate market 10-15 years ago and the construction boom that characterized that period of time, the defect rate was higher. Most developers were focused on quantity rather than quality. The buildings were erected in the shortest possible time, often in violation of technology.”

The expert attributes the improvement in the quality of construction to the fact that more and more developers are switching to selling apartments under 214-FZ, which strictly regulates the process of delivery and acceptance of apartments. “And buyers have recently become more picky and demanding about their future housing. Therefore, now, against the backdrop of growing competition, developers have become more focused on the quality of construction of their buildings,” he notes. However, the problem has not yet been completely resolved, and various types of defects are found in new buildings in Moscow.

Poisonous walls

According to the Moscow Department of Urban Development Policy, more than half of the complaints concern poor-quality installation of windows and poor sealing of seams in large-panel houses. About a quarter of those who called the hotline are dissatisfied with flaws in the finishing; Muscovites also complain about defects in engineering systems and roof leaks.

“In our opinion, of course, the most glaring deficiencies are those that pose a threat of harm to the life and health of citizens,” says the head of the “Earth. Real estate. Construction" of the legal group "Yakovlev and Partners" Nina Evstratova. “Unfortunately, we periodically hear about such shortcomings, for example, a balcony collapsed, a piece of a wall fell off, a crack appeared in the wall (that is, problems with the foundation).”

Last year there was an “ammonia scandal” in St. Petersburg. Residents of several new buildings complained of a constant smell of ammonia, which intensified as the temperature rose. In one of the apartments, according to the results of laboratory tests, an excess of the permissible level of ammonia in the air was recorded by 17.6 times. It later turned out that the walls had become poisonous due to the rush of developers. In order not to interrupt construction during the cold period, they added various impurities to the concrete.

On the forums of residents of new buildings, there are often complaints about other defects, for example, cracks in the walls. Small cracks are allowed even according to GOST, as they appear due to the natural process of shrinkage of the building. However, if the width of the crack exceeds 0.5 mm, or even more so if the crack is through, the alarm should be sounded. This means that mistakes made during the construction of the foundation or pouring concrete can lead to very serious consequences in the future - even collapse.

Also, among the defects in new buildings, new residents often mention problems with windows (difficult to open, do not close tightly) and ventilation. Both of these defects are easy to check. It is enough to open and close the windows, and to check the air exchange system you need to attach a sheet of paper to the hood - it should not fall.

However, there are important indicators that require mandatory verification and are invisible to the naked eye. This is, for example, sealing the joints of walls and balcony slabs, hydro- and thermal insulation. Defects in these systems can lead to dampness, the formation of fungus and mold, and freezing of walls. Experts recommend involving specialists - professional builders or independent consultants.

State checks

How can you defend your right to quality housing? The legal consequences and algorithm of behavior when construction defects are discovered depend on the agreement under which the apartment was purchased. “So, a citizen’s acquisition of real estate from a developer in a house that has been built and put into operation is carried out under sales and purchase agreements, and the acquisition of residential premises in objects under construction is carried out under equity participation agreements,” says Elena Gavrikova, head of the legal department of the development company City-XXI century."

In the first case, the relationship between the developer and the buyer is regulated by the Civil Code and the Law “On the Protection of Consumer Rights”, and when purchasing under the DDU - 214-FZ “On participation in shared construction”. For example, when buying and selling, the buyer can refuse the transaction if any defect is discovered, and when purchasing under the DDU - only if there are significant defects or after the expiration of the period for eliminating less serious defects.

Let's see for ourselves

“The proper quality of a construction project means the quality (condition) that the parties agreed upon in the contract (contractual quality), as well as the quality that is established by the state and determined on the basis of mandatory requirements (state quality). State quality is confirmed by the act of putting the house into operation,” says the senior lawyer of the “Earth. Real estate. Construction" of the law firm "Cliff" Vadim Cherdantsev. The buyer checks the contractual quality himself during the acceptance and transfer of the apartment. Therefore, you should not sign the apartment acceptance certificate if you are not satisfied with the quality of construction.

“If defects are detected, that is, deviations in the quality of the construction project, the citizen should legally correctly record the fact of the presence of defects,” recommends Vadim Cherdantsev. — The most reliable way would be to conduct a special examination (construction examination). Defects can also be photographed, filmed, or described in paper form in the presence of a group of people - a privately created commission. It is advisable to record defects as reliably and accurately as possible.”

After the defects have been recorded, a written notification of the discovery of defects must be sent to the developer. In this case, the buyer has the right to demand gratuitous elimination of defects within a reasonable time (no more than 45 days), a proportionate reduction in the price of the apartment, or reimbursement of his expenses for eliminating defects. When purchasing a finished apartment under a sales contract, a person also has the right to refuse the apartment and demand a refund of the amount paid for it. According to the DDU, the shareholder can make such a requirement to the developer only in the event of a significant violation of the requirements for the quality of construction or failure to eliminate the identified deficiencies within the prescribed period.

By the way, according to the law “On the Protection of Consumer Rights”, in case of violation of the deadlines allotted for correcting deficiencies, the developer is obliged to pay the buyer a penalty in the amount of 1% of the price of the apartment for each day of delay. This rule applies to real estate acquired under a purchase and sale agreement.

How to force the developer to eliminate defects?

If the apartment was purchased under the DDU, the shareholder can demand compensation only upon termination of the contract - interest on the amount paid for the apartment in the amount of one three hundredth of the refinancing rate of the Central Bank of the Russian Federation in effect on the day of fulfillment of the obligation to return the funds.

The specified interest is accrued from the day the participant in shared construction contributes funds until the day they are returned by the developer to the participant in shared construction.

“In addition to the fact that the developer must eliminate identified deficiencies or reimburse expenses, the buyer has the right to demand compensation for losses caused to him. Developers generally do not voluntarily compensate for losses, but only by court decision,” notes Nina Evstratova.

If the developer refuses to correct the defects or return the money, you must file a claim in court, not forgetting to attach to it all available evidence of the purchase of the home and the presence of construction defects and deficiencies.

Didn't see it right away

Even if the buyer did not notice any defects when signing the apartment acceptance certificate, this does not mean that the developer is no longer responsible for them. “Home buyers should remember that according to 214-FZ or the Russian Law “On the Protection of Consumer Rights,” the minimum warranty period for an apartment is 5 years,” emphasizes Evgeniy Shirstov, senior lawyer in the real estate and investment practice of the law firm Kachkin and Partners. — At the same time, it is important that the contract spells out in detail the terms of this guarantee, as well as the responsibility of the developer. The buyer may demand the elimination of detected deficiencies, reimbursement of the costs of their independent elimination, a proportionate reduction in the cost of the apartment, or termination of the purchase and sale agreement and the return of the money paid for the apartment, if such deficiencies are significant.”

“However, it should be noted that the developer is not responsible for shortcomings (defects) of the shared construction project discovered within the warranty period if he proves that they occurred due to normal wear and tear, violation of the requirements of technical regulations, urban planning regulations, as well as other mandatory requirements for the process its operation or as a result of its improper repairs carried out by the participant in shared construction or by third parties attracted by him,” notes Elena Gavrikova.

For example, if one of the neighbors, bypassing the law, made even a small opening in a load-bearing wall, this can lead to the formation of cracks throughout the house. And in this case, of course, it is not the developer who is to blame, but the owner of the apartment who carried out the illegal redevelopment. It is from such a negligent owner that all victims should demand compensation for losses.

But what should you do if the warranty period has passed, and for example, after a year, the bathtub of his upstairs neighbor falls on a person’s head? “If problems in the apartment appeared after the warranty period had expired, then holding the developer accountable becomes more difficult and will depend on the circumstances of the case,” says Evgeny Shirstov. “We can talk about the developer’s responsibility for shortcomings if a forensic examination establishes that such shortcomings existed initially, even at the time of transfer of the apartment to the buyer, but appeared later.” Lawyers do not have statistics on the results of consideration of such cases in court, but they unanimously say that it is difficult to predict the outcome of litigation.

Thus, the earlier a defect is detected, the easier it is to achieve the truth. Therefore, specialists from the analytical center “Real Estate Market Indicators IRN.RU” recommend not to rush to sign the apartment acceptance certificate, no matter how much pressure the developer puts on you and no matter how much you want to quickly move into a long-awaited, albeit defective, apartment.

In accordance with Articles 7 and 8 of the Federal Law dated
12/30/2004 N 214-FZ (as amended on 07/23/2013) “On participation in shared construction
apartment buildings and other real estate objects and on making changes to
some legislative acts of the Russian Federation"

The transfer of a shared construction object by the developer and its acceptance by a participant in shared construction are carried out according to a transfer deed or other transfer document signed by the parties.

The developer is obliged to transfer to the participant
shared construction object of shared construction, the quality of which
complies with the terms of the contract, the requirements of technical regulations, design
documentation and town planning regulations, as well as other mandatory
requirements.

Before signing a transfer deed or other document on the transfer of a shared construction project, a participant in shared construction has the right to require the developer to draw up an act indicating the non-compliance of the shared construction project with the requirements specified in Part 1 of Article 7 of this Federal Law, and refuse to sign the transfer deed or other document on the transfer of a shared construction project before the developer fulfills the obligations provided for in Part 2 of Article 7 of this Federal Law.

That is, if the quality of the object does not correspond to the contract or technical document, then if deficiencies are discovered, you have the right to refuse to sign the acceptance certificate

If the share object

construction was built (created) by the developer with deviations from the conditions
agreement and (or) specified in part 1
of this article of mandatory requirements, leading to deterioration in quality
such an object, or with other shortcomings that make it unsuitable for
stipulated by the contract of use, a participant in shared construction, if
otherwise not established by the contract, at his own discretion has the right to demand from
developer:

4. The terms of the agreement to release the developer from liability for defects in the shared construction project are void.

5.1. Warranty period for technological and engineering
equipment included in the equipment transferred to participants in shared construction
shared construction object, is established by agreement and cannot amount to
less than three years. The specified warranty period is calculated from the date of signing
the first transfer deed or other document on the transfer of the share object
construction.

(Part
5.1 introduced by Federal Law dated June 17, 2010 N 119-FZ)

A participant in shared construction has the right to present
claims to the developer in connection with the inadequate quality of the shared property
construction
provided that such quality is revealed during the warranty period.

That is, if, then you have the right within 3 years after admission
object is being built. present one of the requirements to the developer:

1) elimination of deficiencies free of charge within a reasonable time;

2) a proportionate reduction in the contract price;

3) reimbursement of their expenses for eliminating deficiencies.

At the same time, the terms of the agreement on releasing the developer from liability for shortcomings of the shared construction project are void.

If you sent a claim to the developer with the required reimbursement of its expenses for eliminating deficiencies, then the developer is obliged to comply with your request or give a reasoned refusal.

By virtue of Art. 9 of the law.

A participant in shared construction unilaterally has the right to refuse to fulfill the contract in the following cases:

1) failure by the developer to fulfill the obligation to transfer the shared construction project within a period exceeding the period established by the contract for the transfer of such a facility by two months;

2) failure by the developer to fulfill the obligations provided for in Part 2 of Article 7 of this Federal Law;

3) a significant violation of the quality requirements for a shared construction project;

4. In the event of a unilateral refusal by one of the parties to fulfill the contract, the contract is considered terminated from the day the notice of unilateral refusal to perform the contract is sent to the other party. The specified notification must be sent by registered mail with a list of attachments.

That is, if your request is not satisfied, you have the right to unilaterally refuse to fulfill the contract.

Thus, now you should receive a response from the developer and terminate the contract or file a lawsuit.

The alternative is court. proceedings is mediation.

According to Art. 2 and clause 2.clause 7 of Art. 7, Federal Law of July 27, 2010 N
193-FZ “On an alternative procedure for resolving disputes with the participation of
mediator (mediation procedure)"

mediator, mediators -
independent individual, independent individuals engaged by the parties
as mediators in dispute resolution to assist in developing
the parties to the decision on the merits of the dispute;

The mediation procedure can be used when occurrence
dispute both before going to court or arbitration, and after the start of litigation
proceedings or arbitration, including on the proposal
judge or arbitrator.

A proposal to resort to mediation may
be done at the request of one of the parties by the mediator.

That is, if a dispute arises between you and the developer, you have the right to resolve the issue with the help of a mediator without going to court.

A proposal to resolve the issue, order and agree on all deadlines can be made by the mediator in the form of an email.

I can
provide mediation and application services, as well as
provide advice on successfully resolving the issue out of court. ok.
Sincerely, F. Tamara