"According to practice, the main reason for the interest holders decided to terminate the contract is a significant delay in construction schedule. In addition, to scare a potential buyer can about the negative financial position of the builder or the seller's breach of contract, its execution, - said Sergey Kushmenyuk, General director of investment real estate agency "Condrey." - however, terminate the contract and get the money back is often quite difficult, and in some cases and does not seems possible. Therefore, to provide a situation where you suddenly become not need an apartment, you got better before. "
Related article: Developers manipulate of construction materialsPrevention of potential trouble
When purchasing an apartment in a new basic facts that need to pay attention to the buyer are:
1. Title documents for the construction: the decision of local authorities to provide land for development, additional authority to the said legal act, an investment contract for construction, land lease agreement (the 214-FZ "On Participation in the joint construction of apartment buildings and other real estate and amendments to some legislative acts "), the project declaration containing all necessary information on a newly built house and the builder.
2. The organization, which builds and sells apartments. Sale may make himself the builder, it is preferable for the buyer, and co-investor, conceding his right. In the latter case on a mandatory basis to verify payment and assign the right of a competent person, realizing that right buyer.
3. Contract or several contracts, under which apartment for sale (the contract should include all material terms: the characteristics of the apartment, its location, date of completion of construction of the house, the date of transfer of the apartment to the buyer, the cost of the apartment, other than such jurisdiction, penalties).
If the apartment is implemented organization having the right to do that has a good reputation, participating in various investment projects, and the contract meets the above requirements, a refund in this case will make a lot easier than when the company was created only for the sale of apartments in the same house or parts of apartments on a single investment project.
Organization, just realizing the apartment, you should check the financial viability and debt, for example, through lawyers to seek information on possible financial claims by creditors. The more of these claims, the less likely to return the money if need be, respectively, a contractual relationship with a company better not to start.
For what reasons can claim the money
Terminate the contract may be by dissolution or annulment. Both the first and second versions can be implemented only if statutory grounds:
- In material breach of contract by the other party;
- With significant changes in circumstances;
- In other cases provided for in this Civil Code and other laws or by contract;
- If the contract does not comply with the law;
- If the agreement to cover other transaction;
- If the contract is signed by an unauthorized person;
- If a reservation is concluded under the influence of deception, delusion, in unfavorable side conditions.
Without a serious reason to terminate the contract or apply to court for not recognizing it as invalid. As practice shows, in the pretrial order, no construction company did not return received from the buyer's money, have to pass two stages of the trial (the first instance, the revocation) and enforcement proceedings.
Despite the fact that the law does not provide for specified mandatory pre-dispute-with claims stage of the proceedings, it is desirable to still go to court for formal reasons not to refuse to accept the claim for consideration. The complaint should specify the reduced terms of the refund, for example, 10 days (according to general rules of civil procedure - 30 days).
If the elapsed time indicated in the contract completion at home or the apartment to the buyer, the grounds for termination of the contract, return of funds, as well as a penalty there. If the time frame for completion of construction does not come, but it is obvious that in time the apartment is not granted to the buyer, also there are grounds for termination of the contract with all its consequences. The grounds for termination of the contract may be a change in the area or lay-flat floor, a project of the house or the surrounding area, cost object, and many other things that the buyer has a special or significant.
Recognize the agreement null and void and return the funds may, when such a contract does not comply with applicable law or does not contain mandatory conditions that for each contract law are set separately - in general, we are talking about the subject of the contract value terms. Also, the contract is null and void on general grounds provided by the Civil Code, for example, misrepresentation, deceit, pretense, or the hollowness of the transaction, which in practice occurs quite often.
It is worth to remember and understand that if the developer (a seller) in accordance with the law and the agreement complies with all its obligations, to terminate the contract would not be possible.
How much money to ask
Entitled to a refund for purchased flats, as indicated above, have customers, whose rights were violated when prison (invalidity of the transaction) or the execution of the contract (termination of the transaction).
If the interest holders intend to buy flats, the current legislation provides only for an agreement on a joint construction. All other contracts to sell interest-holders of premises (preliminary contracts, contracts of investment, other) do not correspond to current legislation, and therefore null and void from the moment of their detention. However, civil law provides for freedom of contract, and many judges have come precisely because of this principle and are denied many lawsuits aimed at ending the relationship with the developer, to sell the apartment is not on the 214-FZ.
Also, do not forget that when you return the company paid cash can be thought of as the very sum payment, that is, nominal, and on penalty - penal sanctions provided by law or contract. If the fault of the seller interest holders have suffered loss, for example, by paying interest on a mortgage or renting a home, an increase of the price, otherwise, such additional costs or penalties as non-refundable. Refundable interest holders, and all court costs (government duty, attorney expenses, other), if the interest holders recover money in court.
The practice of returning the money for new buildings
It is recommended to start a refund to the buyer with the preparation and filing with the developer or seller. The claims should all carefully and in detail to register, as well as specify the details for the return of funds and repayment periods (7 - 10 days). It is important to properly formulate the requirements as they relate to damages and penalties. Submit two copies of the claims is to receive a mark on one of delivery. If you put a mark refused, the claim must be sent by registered mail with notification.
If within the period specified in the claim, the money is not returned, the buyer will have to go to court before making a claim with all necessary documents (applications), to pay the state fee, make calculations, etc.
If the court makes the case for, in the judicial process to prove the validity of the claim and prove the existence of documents that were attached to the lawsuit, or those who need to claim at the request of the court. According to the results of the trial the buyer gets a court decision and a writ of execution, and it was for him and the process of returning the money awarded.
Return the money paid for the flats is a complex process. It should be understood that to win a court does not mean getting cash awards. In practice, precedents, the company can not cope with the burden of debt hanging on it and declare bankruptcy, which leads to the impossibility of obtaining money lenders (interest-holders, who paid for an apartment).
To guarantee the interest-holders back their money advice one: buy a house in a large reputable company with good reputation and multimillion-dollar share capital and only 214-FZ. The investment contract and the contract equity insured public or large private insurance company. Also, remember - all contracts for the purchase and sale of apartments in new buildings must undergo mandatory state registration.
Oleg Sukhov, Principal Consultant Ltd First Capital Legal Center