Following the adoption of the Federal Law № 214-FZ "On the equity participation in the construction of apartment buildings and other real estate ...", a number of reasons, according to which the Act or could not be fully implemented by the developers, or to create for them a very great difficulties . The result of bypass of the legislation was new (not relevant laws) scheme to attract cash equity holders - Preliminary agreement. On what should I look for when buying a new building on the preliminary agreement says the lawyer Oleg Sukhov, a leading lawyer of the First Metropolitan Legal Center:
First. In the preliminary contract does not specify time frame for completion of construction at home and does not specify the date on which the apartment for use by the buyer, in this connection, the latter does not know when it built a house when he could qualify for an apartment to move into it, and so on.
In addition, to be completed at home and the date of transfer of flat interest holders is of paramount importance for the presentation builder claims for a penalty or claim of termination, if the developer fails to comply with its obligations or violates them. Worth noting that such conditions in the relationship between the share participant and builder are mandatory and integral to the Law FZ-214.
Second. It is necessary to be aware that the preliminary agreement does not give rise of property rights for the purchased property, such as the Treaty of equity or investment agreement, which can be directly through the registration service to register the ownership of the property. Preliminary agreement only gives the right side to claim the conclusion of the basic contract of sale and then only after such a right to be registered for the builder. If the ownership of the property developer will not register themselves, then the grounds for concluding the main contract of sale will not occur. Thus, paying the cost of the preliminary agreement, interest holders in full depends on the developer, his ability and desire to draw on a title to the constructed housing, and then the desire to renew the Developer this property to buyers.
In bypassing this law "dependence" was established jurisprudence, under which preliminary agreements were characterized as sham transactions to allow registration of ownership through the courts directly to the holders, bypassing the Developer (this practice occurs in many courts in Moscow and Moscow Region: Savyolovsky District Court, Gagarin, Khoroshevsky district courts in Moscow, other).
Third. The preliminary contract is not subject to compulsory state registration Rosreestra a treaty equity interest holders that no guarantee against the possible risks of double sales. When registering, the Treaty of a joint construction in the registration service, the second sale of the object in a new longer possible. To exclude these risks, when the apartment and twice and thrice, or even more often realized developers, even large ones, even in high-end homes, and was admitted to the Law 214-FZ, which obligates the Developer Agreement to register the equity and only after that register to take Cash provided by equity holders. Registration service is one for every single region, and admits no possibility to register several contracts on a single object. It is not a registered contract of a joint construction has no legal force and is not concluded. With respect to prior contracts that are never taken into account, the builder of these contracts may be signed by an unlimited number, and, accordingly, to take under these funds from several buyers.
Fourth. Preliminary agreement does not characterize the residential or residential property that is realized builder. This is only preliminary data symbol space, which can be changed in the process of building a house in area facilities, and Planners, height, and in many ways. According to the agreement of a joint construction property is determined in advance and agreed by the project documents and registers of the agreement in the registration office with the exact number, size, number of rooms and square. Ie changing characteristics, number of storeys specified premises is no longer possible.
Fifth. Penalties - loss or forfeit. Contract of a joint construction directly involves when and how the penalty shall be collected in connection with the improper performance of obligations the builder. Furthermore, Law 214-FZ provides for the right to recover damages. Moreover, to the Treaty of participatory construction directly to the Act on Consumer Protection, including in part the recovery of damages and penalties.
The preliminary contract is not governed by separate legislation, moreover, the treaty itself does not provide for penalties to reimburse the Buyer forfeits and losses. And only when, if the court accepted the arguments of the Buyer and will apply to relations connected with the execution of the preliminary contract, the Law on Protection of Consumer Rights, the Purchaser have any grounds for recovery of damages and losses (as, for example, in the Basmanny District Court . Moscow). I repeat, directly Preliminary agreement does not provide for the application of the sanctions against the Developer.
Sixth. Validity of the preliminary contract. In accordance with the civil law Preliminary contract is concluded for one year, if the treaty specified term is not defined. If during this term of the contract, neither party does not apply to the other side of the requirements for the conclusion of the main sales contract, preliminary contract is void. Together with the termination of the preliminary contract is terminated and the duty to the Developer enter into a share participant main contract purchase - sale and, accordingly, to transfer the apartment. Contract of a joint construction provides that the interest holders to transfer the apartment during the term of this contract and until the apartment is not transferred and registered in the holders, the Treaty of a joint construction does not terminate.
Seventh. Preliminary agreement on the practice is not only developers, but any other investment and construction companies, which may not have the right to dispose of the premises, for example, without charge, by default, otherwise. This practice often leads to problematic registration or recognition of ownership implemented by prior agreement property or even preclude such a design. With regard to the Treaty of a joint construction, the contract only to the specified builder may enter into a contract, and assignment of claims, issued by third parties is possible only if the full payment of the Treaty as a joint construction, and, accordingly, assignment agreements, and all of these contracts are subject to state registration in Rosreestra. With this design of contractual relations, the acquisition of the property new construction eliminates many risks.
In conclusion we can say that buying an apartment in the newly constructed by the preliminary contract - a purchase with an increased risk, so such transactions should be especially careful and try not to enter into a relationship with a builder without being accompanied by an experienced lawyer.
Vadim talked Gorzhankin Browser Realto.ru