The scheme of participation of private investors in the joint construction is widespread in the Russian real estate market for over ten years ago - because of the high cost of borrowing from banks, as well as due to the severe credit conditions.
The active involvement of individuals to invest housing began in the early 2000's, and a mechanism developed successfully, although there have been cases of fraudulent behavior on the part of developers. However, the high risks weakening the influx of willing is unimportant, since the number of defrauded real estate investors do not exceed 10-12%. It should be noted that the bulk of its developers did not intend to cheat. However, if there is a loophole in the law, there will always be willing to use it. Institute of equity was legally introduced in the Russian practice at the end of 2004, after the adoption of the "housing package". Federal law "On Participation in the joint construction" (214-FL) was the most discussed document to professional real estate market throughout 2005. But his strict rules are not followed by most developers for two main reasons:
- Found a workaround;
- Federal authorities have not established an appropriate oversight body whose main function is to monitor cases of non-compliance with the law.
Gray schemes have reduced the risks of developers and extended the potential for the misuse money, real estate investors. All developers are required to implement the flats on the 214-FL, that is, by contract of a joint construction (DDU). But more often used preliminary contracts or bills of exchange scheme, which is the result of the principle of freedom of contract. Today, according to experts at 214-FL is constructed of 25-30% of the housing. There is every reason to believe that the economy-at least here, as among the defrauded real estate investors are practically no buyers of expensive real estate (business category, the more elitki). Indirectly, this indicates a systematic fraud, but direct evidence of such activity there. After the amendment of 214-FZ of the share of apartments on which construction is carried out using DDU, began to increase. In addition, the sale of apartments can be conducted through housing construction, housing and savings cooperatives (HBC and WNC), as well as through special housing certificates. These arrangements provided for by law.
Even when entering preschool are risks - failure to developer obligations, recognition of rights to land void of objects unconnected to major utilities, and other such force majeure, or close to them the circumstances. Participation in the joint construction on the site, provided on a leasehold basis, with serious legal risk, because the legislation contains provisions that are contrary to each other. Besides, is not defined, there is a developer the right to ownership of the object before or after its completion, although the law provides that before the transfer of an apartment building party risk of loss rests with the developer. In connection with this problem can not be excluded from the registration of property rights to housing. In addition, the landlord may declare the early termination of the lease (even longer - for 49 years), including during construction.
To minimize risk, interest holders should know the basic provisions of 214-FZ. At the conclusion of preschool is desirable to consult qualified lawyers. The law outlines the responsibilities of both the developer and private investor. The Party does not fulfill or improperly fulfilled its obligations required to pay the statutory and contract penalties (fines) and fully compensate the damages (Article 10). One of the important conditions of the contract is the term handover participatory construction. In accordance with Clause 2, Art. 6 in the case of non-life developer shall pay a penalty (fine) at a rate of 1 / 300 CBR refinancing rate, effective on the date of the obligation of the contract price for each day of delay. If the participatory construction is a citizen, the penalty shall be paid double time.
In general, maximum security interest holders in the state law only the federal government. Until the end of 2012 the Government intends to fully address the question defrauded real estate investors. Recall that, according to the Ministry of Regional Development, in our country, more than 900 distressed equity construction sites in 67 regions (from 83). That is, the problem is nationwide, since every year we have built approximately 700 thousand apartments, including 350-400 thousand - with the involvement of private individuals. By defrauded real estate investors is about 84 thousand people (5-10% annually apartments to be built). Coordinates the work of the Coordinating Council of the Ministry of Regional Development. In the near future to consider the following mechanisms for solving problems:
- Involvement of citizens (equity holders) to completion in case of a high degree of readiness of the facility;
- Allocation of plots for individual construction as compensation;
- The possibility of using regions of budgetary credits;
- The possibility of lending to property developers Sberbank of Russia;
- Require developers to prove their financial viability and technical capacity to build apartment blocks in the case of fund-raising of citizens;
- The possibility of introducing compulsory insurance of liability of the builder.
In addition, regional authorities shall take the following measures to increase the investment attractiveness of the troubled construction projects:
- Reduction or complete elimination of the cost of connection to utility services;
- Optimization of design and construction documents;
- Change the plot area to increase its investment performance;
- Partial or complete refusal to share apartments, which were assumed to be transferred to municipal or regional ownership.
To successfully address the problem of control subsystem market has radically eliminate the possibility of disposal of other people's money inappropriately. Offers a lot of options for protection, in particular the following:
- Register in the 214-FZ, which the developer can only be a company with a certain amount of share capital (similar to how these issues are resolved in the banking sector);
- To introduce compulsory insurance as a whole project, and each contract of shares;
- To provide government guarantees of repayment in bankruptcy builder (similar to deposit insurance);
- Introduce criminal liability for officers of construction companies and real estate investors for entering into contracts other than in accordance with 214-FZ.
At the present time to discuss the introduction of compulsory insurance for construction companies. According to experts RWAY, this does not solve the problem of misuse of funds. As international experience shows, the most radical way to protect the interests of equity holders is the introduction of the institution of targeted accounts. With high probability the gaps in domestic legislation are not only connected with a young Russian market, but are systemic in nature.
Krapina Alexander, CEO of analytical agency RWAY