When is a claim filed against the developer?
A claim may be made in the following cases:
- If the deadline for delivery of the object is violated, then you can demand compensation, penalties, penalties and payment of a fine. If the developer values his own reputation, there is a chance that this amount will be paid voluntarily.
- Dissatisfaction with quality, when it is necessary to eliminate shortcomings that arose due to the fault of the company, for example, if low-quality material was used, unprofessional construction was carried out, communications were not brought into the apartment. Such a claim is written in the name of the developer, regardless of who the contractor is - these are their internal nuances that do not concern the shareholder.
Sample complaint to the developer for violation of deadlines for delivery of the house and payment of a penalty
A significant part of the laws of our state is aimed at protecting the rights and interests of citizens. If we talk about cooperation between construction organizations and citizens in the process of constructing residential buildings on the basis of a shared participation agreement, the law protects the most vulnerable party, namely shareholders (Law “On Participation in Shared Construction” dated December 30, 2004 No. 214-FZ) .
When the developer does not meet the deadlines specified in the contract for the delivery of the facility and the transfer of apartments to residents, appropriate sanctions are provided for him (Article 6 of the Law “On Participation in Shared-Shared Construction”).
So, in paragraph 2 of Art. 6 states that a construction organization that fails to deliver the project on time is obliged to pay the shareholder a penalty for each day of missed work.
But at the same time, the contractor has the opportunity to officially change the delivery date of the house. To do this, it is necessary to obtain the consent of all shareholders and make changes to the agreement (clause 3 of article 6). An additional agreement is drawn up to an existing agreement. It specifies new construction completion dates. This agreement is given to the shareholders for review and signature. No one can force the future owner of the apartment to sign this agreement.
Note! If you sign the document, you will lose the opportunity to receive an apartment within the previously established deadlines and, accordingly, will not be able to demand payment of a penalty from the developer.
If you do not agree with the new deadlines, the construction company will have to fulfill its obligations, that is, deliver the project on time.
How is the amount of the penalty for failure to meet construction deadlines calculated?
The developer who did not fulfill the terms of the contract and did not transfer the residential premises to the shareholder within the prescribed period is obliged to pay a penalty.
The amount of the penalty is 1/300 of the refinancing rate of the Central Bank of Russia on the day of fulfillment of obligations from the contract price for each overdue day. If the shareholder is an individual, the amount of the penalty is doubled.
Thus, to calculate the penalty, the following data is taken:
- contract price (usually the price of the apartment);
- the number of days that have passed since the deadline for handing over the house (if the deadline is indicated by a date) or since the last day of the quarter specified as the deadline;
- refinancing rate, which is currently equal to 9% (from 06/19/2017).
Penalty amount for 1 day
Typically, the penalty is calculated for all overdue days. But first of all, you need to get the amount of the penalty for 1 day: 9% (refinancing rate) / 300 = 0.03%. As mentioned earlier, if the shareholder is an individual, multiply this indicator by 2. As a result, we get 0.06% (0.03% multiplied by 2).
Next, calculate the penalty for one day. To do this, multiply the cost of the contract by 0.06%. We obtain the total amount of the penalty by multiplying this amount by the number of overdue days. These days, real estate prices are quite high.
It follows from this that the cost of a shared participation agreement in construction will also be high. And since this indicator is taken into account when calculating the penalty, it becomes clear that its size will be quite significant.
If you think that the developer is only obliged to pay you a penalty, then you are mistaken . When filing a claim in court against a construction company, demand:
- reimburse unplanned expenses, for example, related to rental housing;
- impose penalties in connection with failure to comply with the requirements of the shareholder on a voluntary basis;
- compensation for moral damage;
- reimbursement of expenses associated with the consideration of the case in court.
ATTENTION! Look at the completed sample complaint to the developer for violation of deadlines for delivery of the house and payment of a penalty:
Complaint against the apartment developer
When a purchased apartment has shortcomings, the developer is obliged to eliminate them. For this to happen, you are required to write a claim listing the problems you encountered. It is important that this claim is registered with the firm as an appeal and that you receive a copy marked as accepted.
What is it for? In case of an unsatisfactory answer, this paper will allow you to better prepare for court hearings, because it forms part of the evidence base.
Complaint to the developer for elimination of deficiencies: sample
You can draw up a claim yourself; there is no template approved by law; the document is written in free form.
- In the header you indicate the details of the developer and your address for response.
- The main part should describe the problem as accurately as possible without colorful epithets, strictly to the point. It would be great if you refer to a clause in the contract or law under which the company is obliged to eliminate the deficiency. But this is not at all necessary.
- You can attach a copy of the contract to your claim, so the developer can solve your problem faster.
You can download a claim to the developer to eliminate deficiencies. This sample is just an example. To describe your situation as accurately as possible, we suggest you contact the site’s lawyers. Extensive experience in this topic will help you quickly resolve problems with the developer.
Dmitry Trataevsky Project lawyer
It is worth noting that it is recommended to hand the claim personally to an official of the developer, and the claim is made in 2 copies - one to the developer, the second with a note of acceptance, indicating the full name of the official who accepted the claim, his position and the date of acceptance. If it is not possible to fulfill these conditions for any reason, then the claim should be sent by mail, by registered mail with notification and a list of the attachments.
Complaint to the developer regarding the quality of windows
You can complain to the developer about any problem. This also applies to the quality of windows. If it does not meet the standards, write a claim to the construction company. It is she who is responsible for eliminating defects caused by poor material or incorrect installation of windows.
All responsibility, in this case, lies with the developer. Neither the organization that installed the window units nor the shareholder bears any responsibility.
The response to a complaint should be to resolve the problem as soon as possible. In addition to eliminating deficiencies, demand compensation from the developer for transferring to you residential premises, the quality of which does not comply with the conditions of the LDU, as well as legislative documents.
ATTENTION! Look at the completed sample complaint to the developer regarding the quality of windows:
Claim against the developer for a penalty
In addition to correcting the defect, you may request that a penalty be paid, especially if the quality problem is significant and causes you discomfort and inconvenience. In this case, the claim is accompanied by a calculation of the amount of compensation and a bank account where the recovery should be transferred.
According to Article 7 of the Federal Law of December 30, 2004 N 214-FZ (as amended on July 13, 2015) “On participation in shared-equity construction of apartment buildings and other real estate and on amendments to certain legislative acts of the Russian Federation” (as amended and additional, entered into force on October 1, 2015), 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. In the event that 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, leading to a deterioration in the quality of such a project, or with other shortcomings that make it unsuitable for the use specified in the contract , a participant in shared construction, unless otherwise provided by the agreement, at his own discretion, has the right to demand from 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.
In the event of a significant violation of the requirements for the quality of 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 a return of funds and payment of interest in accordance with Part 2 of Article 9 of this Federal Law.
It is unlikely that the developer will want to resolve the issue peacefully, then you can file a claim in court, however, no one can guarantee that the amount will not decrease during the meetings.
CLAIM
"___"____________ 20___ I and _______________________________ entered into 2 Agreements for the delivery of building materials and the construction of a house, entitled “Agreement of Assignment” and “Agreement for the provision of services for the construction of a country house.” From the texts of the contracts it follows that these are construction contracts.
The obligations assumed under the Contracts were fulfilled by me in full, within the time limits established by the contract.
At the same time, the obligations assumed by the Contractor were fulfilled improperly: there are multiple defects. The beams, floorboards and linings are infected with fungus and have turned black. There are also other shortcomings indicated in the consumer’s first application to your organization.
The above is considered poor quality performance of work by the Contractor under contracts.
In accordance with Art. 4 of the above Law, the contractor is obliged to perform work for the consumer, the quality of which corresponds to the contract. If there are no conditions in the contract regarding the quality of work, the contractor is obliged to perform work suitable for the purposes for which work of this kind is usually used.
Oral and written appeals regarding the elimination of deficiencies in the work performed and non-compliance with construction deadlines did not lead to a positive result.
According to the provisions of Art. 13 of the Law “On Protection of Consumer Rights” dated 02/07/1992. No. 2300-1, for violation of consumer rights, the manufacturer (performer, seller, authorized organization or authorized individual entrepreneur, importer) bears responsibility under the law or contract. The Law of the Russian Federation “On the Protection of Consumer Rights” provides for a penalty in the amount of 3 percent of the price of the work for each day of delay for violation of deadlines for fulfilling consumer requirements to eliminate defects in work (Article 31).
Based on the above, guided by the legislation of the Russian Federation and the Law of the Russian Federation “On the Protection of Consumer Rights”
ASK:
- eliminate the shortcomings of the work performed, set out in the consumer’s claim statement before “___”____________ 20___, including replacing low-quality timber, or treating it with an antiseptic, as well as replacing unsuitable building materials with high-quality ones.
Art. 15 of the Law on PPP establishes that a consumer whose rights are violated is compensated for moral damage caused by such a violation. Considering the circumstances, namely the possibility of a pre-trial settlement of this issue, the consumer is not currently claiming compensation for moral damage caused.
Please inform me of the decision taken regarding this complaint at the above address.
In case of failure to comply with the above requirements or evasion of their fulfillment within the time limits established by law, I will file claims in court for compensation for all losses caused, penalties for delay in voluntary satisfaction of consumer demands, penalties under Art. 395 of the Civil Code of the Russian Federation, on the recovery of compensation for moral damage, a fine in the amount of fifty percent of the amount awarded in favor of the consumer, provided for in paragraph 6 of Article 13 of the Law of the Russian Federation “On the Protection of Consumer Rights”, in addition, a state duty may be collected from your organization and performance fee.
Applications:
A copy of the claim statement.
Date Signature
Download the document “Claim with a requirement to eliminate defects in work”
Claim for windows to the developer: sample
A complaint regarding windows, if the quality does not suit you, is written in the same way as any other complaint to the developer. He is obliged to eliminate the defect if this occurred due to poor quality materials or incorrect work. If the developer sends you a complaint to the company that installed the windows, know that this is not correct, the developer bears all responsibility.
The defect in the apartment should be eliminated in a short time if you contact the developer by writing a complaint. In addition, you can demand payment of compensation for the fact that the delivered object does not comply with the terms of the contract and legal norms.
You can download a claim against the developer regarding windows. This sample is just an example. To describe your situation as accurately as possible, we suggest you contact the site’s lawyers. They will help you draw up a claim based on your requirements.
In what cases is it necessary to write a claim to the developer?
The main complaints of apartment owners in new buildings:
- not all work has been completed;
- the quality of work leaves much to be desired, there was a defect;
- the dimensions of the apartment (height, length, width of the rooms) do not correspond to the housing plan;
- the transfer of housing into operation occurred later than planned;
- contrary to the original plan of the new house, office space, shops, cafes, restaurants, etc. were added to it.
If these reasons for the residents’ dissatisfaction are justified, then this situation threatens the developer not only with claims and termination of the contract, but also with a solution to the problem situation in court.
