We decided to figure out how to get the builder to the buyer any compensation. This helped us legal director of "The European Union legal Alexander Vanzha and lawyer Donetsk Regional Bar Marina Gavyada, wrote today.
Related article: The price of land, or how I bought the plotEMBOSSING penalty for DELAY
The vast majority of people affected by the long delay time of construction of their homes do not receive any compensation from developers, and sometimes even elementary apology. Many do not even try anything to get. Often the reason for that objective circumstances: when the developer has "more dead than alive," without a penny of money in the accounts, how much with him either contend thou, most likely, but the hassle, get nothing.
On the other hand, each situation must be considered in the particular context and analyze all possible withdrawals, even at "half dead" construction companies.
Of course, if the delay was not too large, it is possible to treat problems of the developer and with understanding. For example, according to employees HC Kievgorstroy ", in the midst of the crisis they have been delays with the delivery of some items - up to six months. In all cases, there were no lawsuits and pay any compensation: people understood the situation, see what's happening in the construction market, as many freeze construction projects, and were pleased by the fact that generally get an apartment, albeit a little later.
Experts say the implementation of apartments company Zhitlo-Invest ", they also had no adverse consequences in connection with minor delays with the delivery of objects. But many companies are forced to wait for their buyers, and more.
Behold the CONTRACT. If your builder from among them and he "probably alive", then here it is necessary to look at the contract, what kind of responsibility he was there to put myself. If you allow some kind of penalty, it does not hesitate, it is necessary to collect each year.
Attention! A court fine of more than one year are not collected. And many people are unknowingly committing a big mistake by delaying a few years, its appeal to the court.
For starters, you can issue a formal request to the Director of the company. Where to point out that such a date entered into a contract with the company for partial participation in the construction of such a house. Assumed under the treaty obligation to transfer the money you have completed in full. Under the contract the developer pledged to give you such and such an apartment.
Completion date so and so. But today you are above the apartment in the property under the Acceptance of transfer has not passed. Further, the above contract has all the hallmarks of the work contract, defined Art. 875 of the Civil Code of Ukraine.
Article 883 of the Code provides that the contractor is responsible for the delay of handover to the customer, in particular, pay a fine stipulated in the contract or by law, and compensates for losses in full. According to the contract in case of exceeding the planned construction time by more than a certain number of months, the company must pay you a penalty in a certain amount for each subsequent month.
Based on the foregoing and the provisions of Articles 11, 526, 530, 610, 611, 875, 882, 883 Civil Code of Ukraine, art. 20 of the Law of Ukraine "On appeals of citizens", you ask:
1. Reasonably provide information regarding the transfer of your ownership of the Acceptance of transfer of such a flat in such an address.
2. You pay a penalty in the amount of so many percent of the amount actually remitted, that is so much hryvnia.
3. Inform you in writing of the examination requirement under the Law of Ukraine "On citizens." In accordance with Art. 20 of the Act, the treatment is considered a period not exceeding one month from the date of its receipt, and those that do not require further study - immediately but not later than fifteen days of receiving them.
Plead. If you have not received from the developer would satisfy you to respond to the request, you can apply to the court. To do this, of course, it is better to resort to professional assistance of a lawyer. The petition you describe the problem as well as the requirement for the developer, adding that you accessed with a demand for payment of a penalty to the defendant, but it was ignored. And now you ask to take a claim to consideration and to recover from the defendant in your favor a penalty in a certain amount.
Appeals to the court - troublesome, but supposedly more high chance of success. According to lawyers in the registry of judgments are many examples where the court requires the developer to pay the fine in full.
Unfortunately, in most cases, developers are being prescribed in the contracts for their "art" just a paltry fines, which give such a small amount of the penalty for which the fuss and not worth it. But even here you should not let the violator of its obligations to the world.
FAITHFUL Rent. You can try to get him to compensation for material losses incurred. Let alone someone who expects "overdue" housing in rented apartments, so as the saying goes, God himself commanded.
For what, in his statement of claim in court, add a paragraph that as a result of late delivery by the defendant of contract you have incurred losses of material nature: for such a lease of immovable property in a certain period of time. During this time, your family living in a rented apartment (house) you have spent money in a certain amount. You are eligible for compensation by the defendant under article 883 of the Civil Code of Ukraine.
And at the end of the application adding the request to collect from the defendant in your favor material damage in a certain amount under the contract of lease of premises. Of course, to receive such compensation, must have hands on the lease. It is not necessary that it be notarized - enough, the signatures of landlord and tenant.
In the presence of such a treaty and competent conduct of the case the courts tend to side with the victim.
... OR ANTICIPATED PROFITS. Moreover, financial compensation could be obtained, and people who have suffered due to the fact that they could not take the apartment for rent. Thus, in one case, the developer for almost a year delayed the delivery of houses to rent. One of the investors was designed as a private businessman, formally engaged renting the apartments.
He planned this apartment for a personal residence. But for compensation has been built legal position that he was going to rent it since putting the house (in confirmation of which was granted a preliminary agreement with the tenant), but because of a delay deal fell through, and he suffered losses. Was sued for compensation for lost profit equivalent to $ 500 for each month of delay. And the court has satisfied this requirement.
Compensate for moral damage
Collecting with the builder of non-pecuniary damage gives wide scope for creativity. Item 2 of Part 2 of Article 23 of the Civil Code stipulates that non-pecuniary damage is: the mental anguish that the individual has experienced in connection with unlawful conduct with respect to himself, his family members or close relatives.
In accordance with Part 3 of this Article, the amount of monetary compensation for moral damage is determined by the court depending on the nature of the offense, the depth of physical and mental suffering. Takes into account the deterioration of ability of the victim or his denial of the possibility of their implementation, the degree of guilt of the person who inflicted moral damage, if the fault is the basis for reimbursement, as well as taking into account other factors, which are essential.
In determining the amount of compensation taken into account the requirements of reasonableness and fairness - that is written in the law, let alone that the judge deems reasonable and fair, is not a priori guess.
With inventory. All this is so vague that, as lawyers say, of the 20 people who filed lawsuits over the delay in construction of the same house, everyone can get a completely different non-pecuniary damage. Moreover, the range can reach, for example, from 5 thousand UAH. to 50 ths. Exactly the same predicted to become generous that the court is for you, not undertake any conscientious lawyer. There are just some general ideas on which to focus. For example, if unfinished apartment - the tenth in your collection, and all your damage is in distress from the fact that you are upset because of the inability to lease it - this is one case. Here you will soften the court is unlikely, and compensation will likely be minimal.
Thus, in the case described above with the entrepreneur court dismissed his claim for compensation for moral damage and more. Arguing this way: you're either an entrepreneur who received less income, or an unfortunate individual who has suffered pecuniary loss.
It's quite another thing if you can prove that because of a delay in getting an apartment your whole life just flew upside down: the nerves, the scandals, the destruction of family happiness and troubles at work. In addition, we must take into account the tendency of courts "cut" the amount of compensation for moral damage. So, if you get 10 thousand UAH., Request must be with a fair margin, for example, 50 thousand UAH.
HEALTH. Reliable, when moral hazard can be directly attributed to the deteriorating health of the victim. For example, you are in his statement of claim can add what you have suffered moral damage compensation to which you assess in a certain amount. Caused damage put you in the emotional experiences and the deterioration of your health (neural overload and stress), which is due to the uncertainty of living in a rented apartment (as an option - a wicked mother in law / mother in law).
Also - late delivery by the defendant with the contract, namely, breach of terms of the introduction of the object and transfer you to the ownership of premises, moreover, refused to voluntarily pay you the penalty provided in the contract. Given the circumstances significantly violated the vital plans of your family. As a result, health has deteriorated and you had to go to the hospital, where he was diagnosed with "adjustment disorder" (or what you like) and received treatment.
Of course, all this must be confirmed certificate from the hospital, which, given the specificity of our most free medicine in the world, a big problem to make it should not. The main thing is that in this way really is possible to achieve compensation, and examples of such solutions also exist.
METRO MORE THAN METRO "
Rare house we rent in full compliance with the project. In the vast majority of new apartments there are deviations from the project area to a greater or smaller side.
Trust, but measure it. The contracts with developers, as a rule, it is anticipated that the results of measurements BTI corrects the flat area and the corresponding recalculated liabilities. But ICE officials make mistakes that can cost dearly. For example, the error in the width of the room length of 6 m was only 4 cm The result is an error in the determination of area: 6m x 0.04 meters = 0.24 square meters. m, at a cost of 1 sq. km. m 10 000 UAH. gives 2400.00 USD. losses. Therefore, to ensure all necessary remeasure yourself.
In addition, the definitions contained in the DBN V2.2.-15-2005, the total area of the apartment - is the total area of housing and ancillary facilities in the light of loggias, balconies, verandahs, and terraces, which are counted with a coefficient according to appendix B and the coefficients of these as follows: - for balconies and terraces - 0,3 - lodges - 0,5;
- Glassed-in balconies - 0,8;
- Porches, glassed-in loggia and cold storages - 1.0.
However, developers often ignore these factors.
"Underweight" and "superiority". Problems with the squares of two types: the developer nedodal areas, but to compensate for this shortage is in no hurry; developer favored investor to unnecessary parameters, and is now asking for them extra money.
At the "shortage" can behave similarly to the situation with the delay in delivery at home. First, try to negotiate amicably. If not - write a formal request to the company, and then - to handle the lawsuit in court. In the case of surplus space in the court, too, can apply to require the developer to bring the apartment into compliance with the project. But on the whole red tape can take a year or even half. And all this time, the apartment will be "hanging", because without documents from the developer to issue it in a property you can not. Therefore, the lawyers recommended to seek solution to the issue without bringing the matter to court.
For example, in one house builder has transferred to the 5 meter wall in the general lobby, than gave the apartment buyers an additional 12 square meters. m corridor. Buyers are welcome to 12 ths. per square. m was no good. In the court decided not to file, but this option as an argument in a dialogue with the developer was present. Agreed on a compromise - to take these 12 square meters. m for half price. In another case, in Donetsk, investors cheered the unexpected and nebesplatnoy loggia. Which, moreover, sheathed with plastics, for which also wanted more money.
Happy owner of a new apartment to pay for these gifts are not wanted. Fortunately, the developer has not changed the national tradition delay with the delivery of houses. Therefore, it was able to negotiate an amicable: buyers do not start the above process of squeezing him compensation, but he does not stick to the proposals to pay extra for a loggia with plastic.
Metro, but not the same "
More complex situations arise when the total area of apartments and appropriate to the project (or has reasonable deviation), but the actual area of residential premises are significant discrepancies with the project. That is, for example, through the living room increased the corridor, storeroom, etc. In this situation the person has the right or to cancel the contract (which is usually unwise), or require a corresponding reduction in prices.
NEEDED EXPERTISE. Price reduction could be achieved either by negotiation or in court when judicial review of construction expertise to raise the issue of reducing the cost of the apartment, which is caused by changes in the project. That is first determined what would be the cost of an apartment, whether it is the same as in the draft, and then - the cost of the one that actually turned out. It is this difference can be and to require compensation. But at the same time and non-pecuniary damage - how much is enough chutzpah and creative inspiration.
The same approach can be used when there are other violations in the project, for example, use for the interior walls of lower quality and cheaper material. But this is not the fact that an independent expert valuer will conclude that these changes actually reduced the cost of an apartment. Therefore, if these changes could seriously not live in the way, perhaps wiser to leave everything as is.