Means ddu. What is an equity participation agreement (EPA). Pitfalls when concluding a pre-employment contract

You can buy an apartment in a new building using one of several existing schemes. Each such scheme provides for a specific agreement. Every real estate buyer needs to know how to correctly conclude an equity participation agreement and how to avoid mistakes.

Law on equity participation Federal Law 214

After the adoption of the law on shared participation in construction, Federal Law No. 214, a new type of agreement was introduced into civil legislation - an agreement on shared participation in construction. Before the adoption of this law, the obligations of the developer and the shareholder were determined using a variety of legal instruments. In practice, there are often cases of concluding agreements for joint activities, investment, provision of paid services, construction contracts, purchase and sale agreements and many others.

The DDU has existed as a legal document for quite a long time, but only in 2005 a law was passed that protects the rights of citizens from legal fraud. The entire list of protective rights is called the so-called share participation agreement FZ-214.

According to this law, the developer company is checked for bankruptcy, the accuracy of the completed documentation, and compliance with all terms of the contract between the parties.

We check the developer's documents

It is difficult to insure yourself against an unscrupulous developer, but it is possible. Before signing the contract, please request the following documents from the developer for review:

1. building permit;
2. certificate of ownership of the allocated land plot or lease agreement for it;
3. resolution of local authorities on the provision of this land plot for the construction of a residential building;
4. investment contract or any other similar document;
5. power of attorney – must be a notarized original. Required if a contract of mandate or agency agreement is concluded.

Regardless of what they tell you, the developer is responsible, and he is obliged to submit these documents. For example, concluding any contracts without a construction permit is a violation of the law.

Pay special attention to the dates on the documents. If a building permit was issued several years ago, and the construction period is about to expire and the building has not been erected, you should think twice before contacting this developer.

What to pay attention to when registering a preschool education

Any buyer of an apartment in a new building who has entered into an agreement for shared participation in the construction of an apartment building can be called a shareholder. The role of shareholder can also be performed by a legal entity that has contributed a certain amount for the construction of a house. The same DDU requirements, prescribed in the Federal Law No. 214, apply to both legal entities and individuals. This law does not provide precise wording and does not have a uniform form for the entire country.

The equity participation agreement does not have to be notarized, however, if both parties wish, this can be done. A notarized version of the contract gives the shareholder certain advantages when purchasing an apartment:

1. when certifying a transaction, the notary is obliged to check the correctness of the documentation of the developer;
2. A notarized agreement will in the future allow you to easily register ownership of the purchased apartment.

Registration of the DDU must be carried out with special attention. The main agreement is drawn up taking into account all the requirements of Federal Law No. 214. There are often cases when the developer offers to sign a preliminary version of the contract. This option is not registered with the Federal Reserve System, therefore there is a high probability of fraud: for example, the fact of a double sale of an apartment. In most cases, developers explain the signing of a preliminary version of the contract by the fact that preparing the necessary documentation takes a long period of time - about six months. Of course, not all developers are scammers, and many actually subsequently enter into a PDU in accordance with all the rules, but there are often cases when a company has serious violations, due to which the equity participation agreement cannot be executed under Federal Law-214.

Mandatory clauses of the contract

Excluding the nuances listed above, an agreement for shared participation in construction must be concluded in writing. There can be no verbal agreements. There are several more basic requirements, failure to comply with which may result in the DDU being declared invalid.

The following items must be specified in the DDU:

1. date of transfer of the apartment to the shareholder;
2. an accurate description of the apartment, technical plan, indication of the floor and apartment number;
3. warranty period: for communications and equipment is three years, for the apartment itself - at least five years;
4. real estate value, terms and payment schedule. The price changes only if the size of the apartment changes.

The developer notes in the contract that the document fully complies with 214-FZ and indicates information in which the shareholder can, if desired, familiarize himself with the project declaration.

Another important point: payment for shared participation in construction is made only after the state registration of the preschool educational institution has been completed in Rosreestr.

Shared construction in Russia existed even before the adoption of Federal Law No. 214. Such participation in construction was carried out mainly through investment agreements or joint activities. The mechanisms of cooperation in this type of agreement are not fully spelled out, which does not fully protect the rights of shareholders, leaving room for the activities of unscrupulous developers. The adoption of the law on participation in shared construction reduced the risks of shared construction for shareholders to almost zero, protecting their rights and protecting developers from fraud.

Accordingly, scammers began to look for other methods to circumvent the law. The most common method today is to replace the equity participation agreement with any other agreement - in most cases, a purchase and sale agreement and promissory note schemes.

Excluding the schemes listed above, the risks of this type of construction include bankruptcy of the developer, inconsistency of the quality of the constructed building with the standards and terms of the contract, and outright fraud. Careful selection of the developer will, if not completely eliminate such risks, then at least reduce them to a minimum.

Read the fine print carefully

The equity participation agreement includes several pages with a large number of clauses, which are quite difficult for a person uninitiated in the legal intricacies to understand. The first lines of the contract usually include information about the developer company or legal entity that enters into the contract on behalf of the developer. If the contract is concluded through a selling company, then a document must be attached to it that confirms the authority of the seller.

The data graph about the construction site includes characteristics of the building being constructed and its design. The preliminary design must be provided to the shareholder for review and be supported by a seal and signature. It is advisable that all clauses of the contract, including those written in small print, be checked by an independent lawyer or notary in order to avoid possible risks. Shareholders defrauded by development companies are not such a rarity these days, even after the introduction of Federal Law-214.

“Gray schemes”, how to avoid becoming deceived by a shareholder

It is currently quite difficult to buy a new building under Federal Law 214, since a small number of buildings are being built in accordance with this law. In most cases, developers resort to so-called “gray schemes”, which are basically sales and purchase agreements. It is unlikely that such schemes will be completely avoided, but possible risks can be minimized.

Gray schemes come in two main types:

1. Preliminary agreement. It is the most common version of the purchase and sale agreement from developers. In essence, it represents a kind of promise that the developer, after constructing a residential building and registering ownership of the apartments, will enter into a purchase and sale agreement with the buyers for the finished property. The developer usually uses this scheme to pay fewer taxes. Since the shareholder receives the apartment immediately, the main risk remains the time during which the registration of ownership of the housing will be carried out.

According to the preliminary agreement, the shareholder invests his funds to purchase an apartment for the developer, since after completion of construction the latter registers the property in his own name and only then transfers it to the shareholder.

If we consider such a transaction from a legal point of view, then it is not real, therefore, it is impossible to insist in court on receiving the completed housing. In addition, the developer has every right to sell the apartment to any other person by concluding a purchase and sale agreement with him.

2. Purchase of a bill of exchange for the amount of a new building. One of the types of preliminary agreement.

The promissory note does not include absolutely any information regarding the property. The essence of such a scheme lies in the need for the developer to instantly receive funds, and on the basis of a preliminary agreement it is impossible to do this, so the shareholder is offered to enter into a contract for the sale and purchase of promissory note.

The use of such a scheme with bills of exchange is a means of circumventing the law on the mandatory conclusion of an equity participation agreement. In most cases, the loan repayment period is at least three years. Considering that the building is being built in less than a year, and the shareholder will be able to return the money only after three years, this scheme is beneficial to the developer. In addition, in such a situation the developer has no obligations in terms of deadlines.

If you plan to purchase a bill, then it is best to purchase securities with a maturity of no more than one year.

Procedure for terminating a share participation agreement

The procedure for terminating an equity participation agreement can be carried out in several cases:

1. The developer does not comply with the terms specified in the contract for the construction and commissioning of the property. These deadlines are necessarily indicated in the DDU. If more than two months have passed from the date specified in the agreement, the shareholder may terminate the agreement unilaterally.

If the developer anticipates an increase in construction time, he must notify the shareholder about this at least two months in advance. In this case, the shareholder has two options: either terminate the contract or agree to new terms.

2. The quality of the commissioned facility does not comply with the stated standards and design documentation. If shortcomings of this kind are discovered, the shareholder has the right to demand that the developer either reduce the cost of the contract or eliminate the defects at his own expense. Claims regarding the quality of real estate can only be made during the warranty period specified in the DDU. If the developer refuses, the shareholder may terminate the contract unilaterally.

Termination of an equity participation agreement is carried out as follows: the developer is sent a registered letter notifying that the shareholder is unilaterally terminating the agreement. The contract is considered terminated from the moment the letter is sent. After sending a registered letter, the developer is obliged to return the spent funds to the shareholder within 20 calendar days, and he returns not only the amount paid according to the agreement, but also interest in the amount of 1-150 of the Central Bank refinancing rate.

Contract terms and force majeure

When drawing up a contract for shared participation in construction, special attention should be paid to the terms specified in the contract. First of all, the term of the DDU itself is looked at: it must be valid until the parties fulfill their obligations.

Another important deadline is the date of transfer of real estate from the developer to the shareholder. In most cases, the contract specifies the quarter during which the object is expected to be delivered. The law allows this, but this solution is not entirely favorable for the shareholder.

Often, the developer includes a clause in the contract stating that he is responsible for violation of deadlines only if it is his fault, which is a direct violation of Federal Law-214. Another option is to significantly expand the list of causes of force majeure. Force majeure usually includes natural disasters, wars, and terrorist attacks. Often, in the DDU, this item includes government acts, low seasonal temperatures and other factors.

State registration of an equity participation agreement

State registration of an equity participation agreement is carried out by the developer, but the law does not limit the shareholder in this endeavor, allowing him to carry out the procedure independently. The following documents must be submitted to Rosreestr:

1. application for state registration of the agreement;
2. receipt of payment of state duty;
3. documents confirming the powers of the parties to the transaction or a legal entity representing one of the parties;
4. legal documents;
5. an individual is required to present an identification document;
6. a legal entity submits constituent documents or their notarized copies;
7. documents for the object of the contract - a project, characteristics of a house or apartment indicating its location.

The contract for shared participation in construction must include the following clauses:

1. warranty period for the facility under construction;
2. the cost of the contract, terms and procedure for payment of funds;
3. deadlines for putting the facility into operation by the shareholder;
4. characteristics of the property, including design documentation and permission to rent out an apartment building or any other property to a shareholder.

Buying a new apartment is a serious and responsible step. Before purchasing housing in a house under construction, you need to carefully weigh and think about everything. The sale of residential premises requires the conclusion of a DDU (214-FZ). What should you pay attention to when signing this document? This will be discussed in our article.

The first lines of the contract

Before committing yourself to a specific construction company, you should carefully study the DDU (214-FZ). What to pay attention to from the very beginning? First of all, it is necessary to establish who is registered in the document as the developer. The text must indicate the full name of the construction company. More detailed information would also be useful - the date and place of registration of the developer, data on the certificate of inclusion of the enterprise in the Unified State Register of Legal Entities, etc.

The agreement must be concluded on behalf of the developer specified in the construction permit and the lease or purchase and sale agreement for the land plot for the construction of the facility. In this case, the general director can act on behalf of the enterprise. It is his signature that must appear on the document. If the contract is signed by another manager, then unforeseen difficulties may arise during legal proceedings. Another employee has the opportunity to represent the interests of the company only by power of attorney, and it must be attached to the DDU.

What will the conversation be about?

The subject of the agreement must be indicated absolutely clearly, without the possibility of discrepancies. Equity participation in the construction of a residential building involves receiving a specific property within a predetermined period. This is exactly what needs to be recorded in the document. Any other issues - participation in investment activities, joint financing of construction, assignment of premises after the facility is put into operation - have nothing to do with the subject of the DDU. Law 214-FZ directly indicates this. Moreover, it does not matter whether the title of the document says “agreement for participation in shared construction” or not.

Detailed description is the key to success

Participation in prescribes that the DDU must contain all possible characteristics of the object. It must indicate the building address of the land plot, the proposed apartment number, and the floor on which it is located. In addition, a clause on financial guarantees that the developer provides to its customers is mandatory.

The document must also specify the warranty period for the property and its engineering services. As a rule, the warranty for residential premises lasts for 5 years, for its equipment - 3 years. The developer cannot legally shorten the period of liability for the transferred object.

Question about the cost of the apartment

The share participation agreement must contain an accurate technical description of the future housing. It must indicate the area of ​​the apartment, the size of the balcony, loggia or terrace, taking into account the reduction factor. Construction companies traditionally try to include in the DDU a clause stating that if, according to the results of BTI measurements, the area of ​​the residential premises turns out to be less than specified in the contract, then the shareholder is obliged to pay extra for the additional area or the developer will return part of the money for unfinished square meters. Sometimes the document states that, regardless of the final result, no one owes anyone anything.

Experienced lawyers remind you that Law 214-FZ does not prohibit the inclusion of a price revision clause in the contract. However, in accordance with the consumer rights law, the buyer has the right to demand money from the developer for the missing area, while the construction company cannot receive anything for the extra square meters. In judicial practice, this issue is considered differently.

Detailed “portrait” of the apartment

When concluding, it is better for the buyer to pay special attention to the details. For example, the developer must include in the DDU a detailed technical description of the property. The document specifies in detail all the attributes - window units, entrance and interior doors, floor screed, wall and ceiling decoration, etc. If the residential premises are transferred with a fine finish, then the contract must indicate everything, even the class of wallpaper on the walls. 214-FZ does not directly say this about participation in shared construction, but the developer’s oral obligations cannot be presented in court. Therefore, be vigilant and demand that the DDU contains a complete technical description of the apartment.

Sometimes a construction company seeks to add a clause to the contract stating the right to make changes to the project declaration, layout and engineering characteristics of the facility without the consent of the shareholder. However, from the point of view of the law, this is unacceptable: the buyer must receive complete information about the product being purchased.

When can we expect fulfillment of obligations?

The deadlines for fulfilling all stated obligations in the DDU (214-FZ) must be clearly stated. What should you pay attention to when studying this section of the contract? First of all, it must indicate the validity period of the document itself. Moreover, it should follow from the wording that it is valid until the parties fulfill all obligations.

In addition, the DDU must indicate the date of transfer of the apartment to the customer. A construction company often stipulates not a specific period, but a quarter in which it plans to hand over the keys to the residential premises to the shareholder. This is not considered a violation of the law, but it does cause some inconvenience to the client. The fact is that the protection of his interests in case of violation of deadlines is clearly stated in 214-FZ. The summary of the legislative act includes a very important point - the customer can terminate the contract only two months after the expiration of the date of transfer of the object specified in it. This means that the consumer will have to wait until the end of the quarter, and then another 2 months, to present their claims to the developer.

Moreover, the construction company is actively looking for an opportunity to circumvent 214-FZ. Penalties for missing deadlines can be a heavy burden on the shoulders of the developer, so he always tries to hedge his bets. For example, it includes in the contract a condition according to which it bears financial responsibility only in the event of its own fault or unreasonably expands the list of force majeure circumstances. Therefore, be careful! Traditionally, force majeure involves terrorist attacks, military action or natural disasters. Changes in legislation, unfavorable weather conditions and inaction of counterparties do not apply to this.

Quality is another pitfall of DDU

214-FZ on participation in shared construction prescribes that if there are any deficiencies in the apartment, the company is obliged to eliminate them or pay appropriate compensation to customers.

Some developers try to anticipate possible misunderstandings and include in the DDU a clause stating that permission to put into operation is equivalent to confirmation of the object’s compliance with design documentation. In this way, the developer is trying to minimize his responsibility for the poor quality of housing. This clause still does not exclude the possibility of a claim from the owner, but it may cause problems during the trial.

How to save your money?

The monetary side of the transaction is the most important point of the DDU (214-FZ). What should you pay attention to in this matter? Firstly, the contract must clearly state the value of the property. It is better if it is indicated in rubles. Unfortunately, the price per square meter is often determined in conventional units, without fixing a specific exchange rate in the document. This significantly worsens the terms of the contract.

Secondly, the DDU (a sample can be found in any law office, we provide one below) must stipulate within what time frame and at what cost the payment will be made. This could be your own savings or a mortgage loan, for example. And you should carefully study the point according to which the customer’s obligations under the contract will be considered fulfilled. Developers insist that this happens after funds are credited to the construction company's account. As a result, the investor is at great risk. After all, the transfer of money through the bank takes place over several days, and all this time the buyer is in limbo. The solution to this problem is quite simple - the share participation agreement must include a clause stating that obligations to developers are considered fulfilled at the moment of depositing funds into the bank.

Who bears the associated costs?

It is important to clarify the question of which party will pay the costs of registering a property with the Rosreestr Office. In addition, it is necessary to decide from what point the buyer must pay utility bills.

Often, developers try to include in the DDU a clause according to which the customer pays bills for water and light from the moment the residential building is put into operation. However, the transfer of the apartment under the deed can take place only after a few months. It turns out that, before moving into the new apartment, the owner will have to pay for utilities. There is nothing fair about this, so we urge you to carefully study this clause of the contract.

How to terminate a DDU?

Equity participation involves not only the conclusion of an agreement, but also a possible waiver of obligations to the developer. If this happens at the initiative of the customer, then he must pay a penalty. When signing the contract, you should pay attention to its size. Typically it varies between 1-15 percent of the value of the property. The strict limits of punishment for participants in shared construction in this case are not specified in 214-FZ. The summary of the legislative act suggests that this issue is left to the discretion of the parties. Remember about possible financial losses when terminating the contract and pay attention to the amount of the penalty - this will help you save.

In conclusion, I would like to note that it is not at all necessary for the shareholder to insist that all clauses of the agreement be described in detail. During the trial, the consumer protection law will be taken into account, which fully protects the interests of individuals.

The equity participation agreement in housing construction (DDU) in 2019 is drawn up in accordance with the requirements of Russian legislation. Knowing the existing features, you can exclude the possibility of recognizing the transaction as void.

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Despite the fact that such an agreement is a type of legal agreement, it is not regulated by the Civil Code.

To be able to protect your interests from the possibility of falling victim to unscrupulous developers, you must refer to the norms of Russian legislation.

Important aspects

An equity participation agreement (EPA) in construction has many nuances that are extremely important to know about in order to minimize the risks of being unable to protect your interests if necessary.

For this reason, it would be advisable to study general theoretical information and Russian legislation.

Definitions

An agreement on shared participation in construction is an agreement on investment activities, thanks to which the developer of the organization has the opportunity to attract money from shareholders (act as investors) for the purpose of constructing residential property.

Upon completion of construction, the property in the new building passes to the shareholders.

For those citizens who have expressed a desire to buy real estate for themselves on favorable terms, the equity participation agreement has some advantages, namely:

• the cost at the initial stages of construction is significantly lower than on the secondary market;
• you can repay debt obligations in;
• It is possible to choose any layout and characteristics of a particular housing.

Through the registration procedure, the government body checks its integrity.

Parties to the agreement

The parties to the agreement under consideration are:

• developer as a construction company;
• shareholder

The developer has the right to act as any legal entity, regardless of the adopted organizational and legal form, which has undertaken the obligation to fulfill numerous conditions, namely:

It must be remembered that according to the legislation of the Russian Federation, individuals and legal entities can act as shareholders.

Current standards

The main legislative act is rightfully. It displays all the key information and features regarding the formation of an agreement for shared participation in construction.

Features of concluding a deal

In the process of concluding a transaction on the issue of taking part in shared construction, you need to take into account the specifics.

In particular, you need to know the rules for drawing up an agreement and the procedure for its registration under the legislation of the Russian Federation. Let's take a closer look at the available features.

Essential conditions

The equity participation agreement is considered simultaneously:

• consensual;
• remunerative;
• bilateral.

According to Federal Law No. 214, in particular Art. 4 the contract must stipulate the following essential conditions:

If the sample agreement for shared participation in the construction of an apartment building ignores the above conditions, then it is considered as not concluded.

To minimize the risk of the contract being invalidated, it is recommended to seek help from a qualified lawyer.

This type of contract must be concluded exclusively in writing.

After its formation, it must be registered with a government agency and is considered signed from the period of completion of this procedure.

The ownership right of a participant in shared construction is also subject to mandatory registration in accordance with the Federal Law “On State Registration of Rights to Real Estate in Russia” No. 122 of July 1997.

What you should pay attention to

Like any other type of agreement, the DDU also has its own characteristics, which are extremely important to pay attention to.

In particular, we are talking about such nuances as:

It is extremely important to pay attention to these features in order to minimize the risks of the transaction being declared void due to the dishonesty of the developers.

When is a preliminary version necessary?

A preliminary agreement is another type of contractual relationship that does not provide guarantees to shareholders in obtaining their own real estate and cannot be used when registering.

The preliminary agreement is not subject to registration, which is why there are no guarantees that the promised property will not be sold to other persons.

There are often situations in which developers literally demand that their proposals be accepted for signing.

For example, a convenient location of the facility under construction, good layout, favorable cost.

In this situation, the main goal of a participant in shared construction is to significantly minimize personal risks.

Most conscientious construction companies will not put forward requirements for their clients to sign such an agreement, but will only offer to pay an initial payment as confirmation of the obligations assumed by the shareholders.

If you decide to sign a preliminary agreement, you must seriously study its contents.

There is no standard form for such a document, but Russian legislation indicates that the agreement must comply with the main one.

If the requirements of Russian legislation are ignored, the preliminary agreement may be declared invalid.

The terms of the preliminary agreement deserve special attention, which must include:

The organizations with which the preliminary agreements were signed and the developer itself, which is one of the parties to the agreement, must act as the same legal entity.

It is important to remember that the preliminary agreement must be signed exclusively by the general director, and not by a manager or other official.

State registration of an agreement on shared participation in construction

A standard agreement for shared participation in the construction of an apartment building is subject to mandatory registration at the territorial representative office of Rosreestr.

Video: everything about the agreement for participation in shared construction

Upon completion of the procedure, the document acquires legal significance. It is possible to conclude an agreement for those objects, the construction of which is confirmed by a permit issued from authorized departments no earlier than April 1, 2005.

According to Russian legislation, the mechanism for registering an agreement is as follows:

1. Collection of necessary documentation.
2. Paying a fee.
3. Submission of collected documentation to the territorial representative office of Rosreestr. Based on their acceptance, a document will be issued, which indicates information about the date of receipt of the information, as well as the personal signature of the government agency.
4. At the final stage, a registered document will be issued.
5. The agreement is registered for the first shareholder within 18 calendar days, and no more for subsequent ones. When receiving a registered document, you must have an internal passport and a receipt with you.

In order to register a share participation agreement, it is necessary to prepare the following documents:

• a signed agreement together with various additions and annexes;
• an application, which is drawn up according to the generally accepted rules of Russian legislation on registration;
• an application from the direct shareholder to register the agreement;
• internal passport of the Russian Federation + copies of all completed pages - in case of personal application;
• in case of submission of documents by authorized persons, a notarized document must be additionally attached;
• notarized permission from the spouse to purchase real estate by;
• documents containing brief information about the property;
• receipt of payment of state duty.

If the applicant is minor children, then this must be done for them. Additionally, you need to prepare documentary evidence of the status of guardians.

From the direct developer you must additionally provide:

• project declaration;
• permission from authorized bodies for construction;
• or else.

The specified list of documentation is exhaustive, and there is no need to provide other documents.

Sample document drafting

If the norms of Federal Law 214 are ignored, the contract may be declared invalid.

Termination procedure (cancellation)

In the event of any disputes or circumstances, there is a possibility of termination of the equity participation agreement.

The main reasons for termination may be established facts of failure to fulfill the obligations assumed by one of the parties. The initiative itself can come from both parties to the transaction.

To terminate a contract unilaterally, one of the conditions must be present, namely:

• the contract is overdue for at least several months;
• the constructed real estate has significant deficiencies;
• the delivery period has been delayed by at least several months.

Additionally, it is necessary to pay attention to the fact that shareholders have the opportunity to file a claim if the construction company arbitrarily, without prior notice, made amendments to the project documentation or to the terms of the main contract.

Underwater rocks

There are also some pitfalls in an equity participation agreement in construction. This especially applies to the question

In particular, the assignment can be formalized if the shareholders have fully repaid their debt obligations to the developer in accordance with the signed agreement and have expressed a desire to sell the property.

In most cases, the cost of this type of real estate is significantly higher. The assignment of rights is often referred to as.

It is necessary to pay attention to the fact that the assignment can only be completed before the apartment building is put into operation.

It is worth remembering that buyers acquire not only real estate, but also obligations under the equity participation agreement.

When considering the option of purchasing a home share participation agreement(DDU) a potential “buyer” should take into account the difference that this transaction will not constitute a sale as such.

Main difference is that under the DDU it is not the apartment itself that is purchased, but right of claim on it in the future, while the subject of the purchase and sale agreement is real estate - an apartment.

If, during the purchase and sale, the purchased housing is transferred to the buyer immediately after the fact, then with the DDU it is necessary to wait for the completion of construction, the commissioning of the house and the transfer of the property by the developer. Only after completing the specified stages, the “buyer” will have the right to ownership for purchased housing.

Since 2019, all developers are required to switch to working with special banking escrow accounts. Therefore, he will not be able to use the DDU as a basis for purchasing an apartment. The developer does not have the right to use the funds of the shareholders until the house will not be put into operation.

What is a DDU agreement when buying an apartment?

Often, purchasing real estate and participating in the construction of an apartment building are understood as one and the same way of acquiring real estate ownership.

For a more complete understanding of the differences between purchase and sale agreements and equity participation agreements, a comparative table is provided below.

Risks of purchasing an apartment under a shared participation agreement in construction

When purchasing a property at the construction stage, you need to pay attention to what contract is being signed between the parties. Participation in shared construction is established.

Due to the fact that only this agreement is a document of title, the conclusion preliminary share participation agreement(PDDU) does not entail the acquisition of rights to an apartment in the future.

Within the meaning of the law, any preliminary agreement acts as an obligation to conclude a main agreement (for example, on the transfer of property or provision of services) in the future on the terms and within the terms provided for by the preliminary agreement (Article 429 of the Civil Code of the Russian Federation).

With the adoption of amendments to Federal Law No. 214, the activities of the developer began to be controlled more strictly by the state. The financial risk of shareholders has decreased - funds coming from citizens and legal entities. persons are stored in special escrow accounts. The developer will have access to them only after the building is put into operation and state registration of ownership of at least one apartment.

While the money is stored in escrow accounts, it is insured by a specially created Citizens' Rights Defense Fund- participants in shared construction. It guarantees protection against financial losses in the event of bankruptcy of the developer. On the Foundation's website you can also view information about housing under construction or information about the developer.

For shared participation in the construction of an apartment building, it is possible risks of various nature:

• financial;
• regarding the quality of the apartment;
• registration of property rights;
• increasing the time frame for putting a house into operation, etc.

Failure to meet construction deadlines

One of the most common risks of equity participation in construction is an apartment building. The construction process may drag on for several months or stop altogether.

The reasons may include circumstances related to the following:

• The developer does not have enough own funds for completion of construction. In this connection, he relies on the use of funds acquired from the sale of apartments, but does not take into account the economic factors affecting the value of real estate.
• The funds paid by shareholders are used for completion of construction of other facilities.
• Contractors do not fulfill their obligations for various reasons, which causes problems with the supply of building materials.

To prevent such a case, the parties must, when agreeing on the terms of the contract, indicate a calendar date(or quarter) completion of construction and delivery of the house.

Thus, the shareholder, otherwise, will have the right to demand:

• (clause 2 of article 6 of Federal Law-214);
• or if the transfer of the apartment is delayed for more than 2 months or construction is stopped (clause 1, part 1.1, article 9 of Federal Law-214).

If the developer is delayed in putting the facility into operation, he will have to pay the penalty, even if he warns shareholders in advance.

Changes in the developer's project declaration

The project declaration is a mandatory document in the construction of an apartment building, in which the first part contains information about the developer, and the second - construction project.

During the registration process, the shared construction object is checked for the absence of other contracts registered for it.

Registration of ownership of a shared construction project

Problems that arise for a shareholder when registering property rights may be caused by the following:

• the developer did not fulfill his obligations to state investors obligations;
• developer did not prepare documents necessary for registering property rights.

If for any reason the developer does not transfer permission to put into operation an apartment building, state registration of the shareholder's ownership rights is impossible (the apartment is an unfinished construction project).

In this case, it is necessary to demand recognition of property rights judicially on the basis of available documents: equity participation agreement, payment documents, apartment acceptance certificate.

What are the dangers of assigning an apartment in a new building under the DDU?

Assignment of rights (assignment agreement) to an apartment is possible when the share participation agreement is registered in Rosreestr and before the transfer of the apartment to the shareholder (signing of the apartment acceptance certificate).

To the reasons for implementation assignment of rights relate:

• failure to deliver the house on time;
• poor quality of housing;
• bankruptcy of the developer;
• Receiving a profit.

A feature of the assignment agreement is that the new owner has the right to make demands for the correction of poor-quality housing only to the developer, but not to the previous owner, since this was not part of his duties (Article 390 of the Civil Code of the Russian Federation).

Thus, it is impossible to terminate the assignment agreement and return the money paid - there is only one way out: wait for the delivery of the property, register ownership of the apartment and sell it under a sales contract.

To ensure that the assignment is not subsequently recognized invalid and no problems arise in the future, the “acquirer” of rights should carefully read the terms of the equity participation agreement for:

• paying the price agreement in full by the previous owner (confirmed by documents on the offset of mutual claims with the developer);
• necessity written consent of the developer for assignment. If such a condition is not observed in the contract, then it is still necessary to notify the developer in writing about the assignment.
• if , then it will be required bank permission.

As with the desire to purchase an apartment under a shared participation agreement, when assigning rights, there is a possible risk of double sale of the property. To prevent this, you should not enter into a preliminary purchase and sale agreement. The contract for the assignment of rights of claim is subject to mandatory state registration.

If the shareholder decides to sell the apartment through assignment under the DDU, all rights and obligations under the escrow account are transferred to the new shareholder.

Our leading real estate lawyer will explain the conditions of shared construction and the mandatory clauses of the contract for shared participation in construction for you today. You can ask your questions online or by calling our toll-free number.

Not every person knows what shared construction is. Meanwhile, for many it becomes the only opportunity to finally acquire their own living space. This method of buying a home has both pros and cons. But if you look at the question in general, you can paraphrase the well-known expression: “he who does not take risks has no corner of his own.”

What is it?

Shared construction means construction, which is based on an agreement on participation in it (DDU). Simply put, this is an agreement between the parties, according to which the developer undertakes to build, obtain permission to put into operation, and commission an apartment building within a specified time frame. This party can only be a legal entity. The developer is either the owner of the site allocated for the construction of the facility or leases it. But the funds needed to build the house are raised from outside.

The investor of this event is a shareholder; he also has his own obligations, namely, he pays the amount agreed in advance, which goes towards construction, and at the end of the established relationship he accepts the object ready for operation. Participants in the DDU can be both individuals and legal entities. According to the agreement, they receive ownership of the constructed object.

What is a contract

Shared construction agreement is necessarily a written document and is subject to mandatory registration with Rosreestr - only after this the DDU is considered concluded. If the participant purchases an apartment on a mortgage, then this agreement also necessarily requires state registration. But shareholders are also given another right - payment in installments, which, as a rule, is given until the end of construction. In the latter case, there is no need to overpay interest to the bank, because the installment plan is provided by the DDU party itself.

In shared participation, participants do not have to worry about the fate of the object, for example, its accidental destruction, until the moment of delivery according to the deed, because in this case the risks are borne by the developer. If the shareholder dies, his heirs take over his rights. Any violation of the agreement gives the party the right to seek protection in court. If we are talking about essential conditions that were either changed or not specified in documents at all, then in general we can talk about the invalidity of the transaction. At the same time, participants who purchased housing not for running a business, but for personal needs, are guided by the Federal Law “On the Protection of Consumer Rights” in protecting their rights.

Even if this is not recorded in any way or does not correspond to the DDU, the guarantees prescribed in the Federal Law “On participation in shared-equity construction of apartment buildings and other real estate” apply to shared participation. After acceptance of the apartment, within 5 years, if the buyer discovers deviations from the conditions agreed upon in the contract related to the quality of the product, its shortcomings, he may demand their elimination, reduce the sales price, or have the right to eliminate them and only then demand reimbursement of expenses. The developer is given a reasonable period of time for this, and the shareholder will not have to pay for anything.