The tendency of Ukrainian developers to violate their obligations has already become the talk of the town. Rarely what kind of house is for rent just in time, but also without any deviations from the original project or other surprises - this is generally from the category "in the afternoon with fire". We decided to figure out how the buyer to get some compensation from the developer. Alexander Vanja, Director of the Law Firm “European Legal Union”, and lawyer of the Donetsk Regional Bar Association, Marina Gavyada, helped us with this.
We knock out a stump for delay
The vast majority of people affected by prolonged delays in the construction of their homes do not receive any compensation from developers, and sometimes even an elementary apology. Many do not even try to get anything. Often the reason for this is objective circumstances: when the developer is “more likely dead than alive”, without a penny of money in the accounts, then no matter how hard you try it, you will most likely not get anything except the hassle.
On the other hand, each situation should be considered in a specific context and all possible options for withdrawing money even from half-dead construction companies should be analyzed.
Of course, if the delay was not too great, then it is possible to treat the problems of the developer with understanding. For example, according to the employees of HC "Kyivmiskbud", in the midst of the crisis, they had delays in the delivery of some facilities - up to six months. In all cases, there were no lawsuits and the payment of any compensation: people understood the situation, saw what was happening in the construction market, how many construction sites stopped, and were satisfied with the fact that they generally receive apartments, although a little later. According to experts in the sale of apartments of the company "Zhitlo-Invest", they also did not have any unpleasant consequences due to small delays in the delivery of the objects. But many companies make their customers wait for a year or more.
Look in the contract. If your developer is one of them and he is “rather alive,” then it’s necessary to look in the contract exactly what responsibility he placed there. If there is some kind of penalty, then do not hesitate to collect it every year. Attention! Through court, the penalty for more than a year is not levied. And many people unknowingly make a big mistake, delaying for a few years their appeal to the court.
For starters, you can issue a formal request addressed to the director of the company. Where to indicate that such and such numbers have entered into an agreement with the company on partial participation in the construction of such and such a house. The obligations to transfer money assumed under the contract were fulfilled in full. According to the contract, the developer has committed to transfer such an apartment to you. Deadline for the construction of such and such. But as of today, the aforementioned apartment has not been transferred to you by the act of acceptance. Further, the above contract has all the characteristics of a contract agreement, as defined by Art. 875 of the Civil Code of Ukraine. Article 883 of this Code stipulates that the contractor is responsible for the delay in transferring the object to the customer, in particular, pays the penalty established by the contract or law, and compensates for the loss in full. According to the contract, if the planned construction time is exceeded by more than so many months, the company must pay you a fine in such and such amount for each subsequent month.
Based on the foregoing, and guided by the provisions of articles 11, 526, 530, 610, 611, 875, 882, 883 of the Civil Code of Ukraine, Art. 20 of the Law of Ukraine "On citizens' appeals", you ask:
1. It is reasonable to provide information regarding the transfer of ownership of such an apartment to you at such and such address.
2. To pay you a penalty in the amount of so many percent of the amount of actually transferred funds, that is, so much hryvnia.
3. Inform you in writing about the result of consideration of the claim on the basis of the Law of Ukraine "On Citizens' Appeals". In accordance with Art. 20 of this law, the appeal is considered within a period of not more than one month from the date of its receipt, and those that do not require additional study - immediately, but not later than fifteen days from their receipt.
COURT. If you have not received a response from the developer that suits you, you can file a lawsuit in court. For this, of course, it is better to resort to the professional assistance of a lawyer. In the statement of claim, you describe the problem in the same way as in the claim to the developer, adding that you made a claim for payment of the penalty to the defendant, but it was ignored. And now you are asking to accept the claim for consideration and to recover from the defendant in your favor a penalty in such and such amount.
Going to court is troublesome, but promising high chances for success. According to lawyers, there are many examples in the register of court decisions where the court obliges the developer to pay the full amount of the penalty.
REMOVAL OF DAMAGES
Unfortunately, in most cases, developers in contracts prescribe for their "art" just miserable penalties, which give such small sums of penalties, for the sake of which and the garden should not be fenced. But here you should not let the violator of his obligations with the world.
RETURN RENT. You can try to get compensation from him for material losses incurred. So those who expect "expired" housing in rented apartments, this, as they say, God himself commanded. For this, in your statement of claim, add a paragraph to the court stating that as a result of the defendant’s late fulfillment of the terms of the contract, you suffered property losses: according to such a lease of immovable property in a certain period of time. During this time your family lived in a rented apartment (house), you spent money in such and such amount. Which are compensable to you by the defendant on the basis of article 883 of the Civil Code of Ukraine.
And at the end of the application add a request to recover from the defendant in your favor material damage in such a amount according to the lease of residential premises. Of course, in order to receive such compensation, you must have a rental agreement. At the same time it is not necessary that he be notarized - it is enough that the owner of the apartment and the tenant have the signatures.
In the presence of such a contract and competent conduct of the case, the courts, as a rule, take the side of the victim.
... OR AN INCOMPLETE PROFIT. Moreover, it was possible to receive financial compensation for people who suffered because they could not rent this apartment. So, in one case, the developer delayed the rental of the house for almost a year. One of the investors was registered as a private entrepreneur, officially engaged in renting an apartment. He planned this apartment for personal living. But to obtain compensation, a legal position was built that he was going to hand it over from the moment of delivery of the house (in confirmation of which a preliminary agreement with the tenant was presented), but because of the delay the deal fell through and he suffered losses. A claim was made for compensation of lost profits in the equivalent of $ 500 for each month of delay. And the court has satisfied this requirement.
COMPENSATE MORAL DAMAGE
Recovery from the developer of compensation for moral damage gives a wide scope for creativity. Clause 2 of Part 2 of Article 23 of the Civil Code of Ukraine provides that moral damage is: in the mental suffering that an individual experienced in connection with illegal behavior regarding 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. It takes into account the deterioration of the abilities of the victim or the deprivation of his ability to realize them, the degree of guilt of the person who caused moral damage if the fault is a basis for compensation, and also taking into account other circumstances that are of significant importance. When determining the amount of compensation, the requirements of rationality and justice are taken into account - this is exactly written down in the law, and you cannot guess what the judge considers reasonable and fair.
WITH STOCK. All this is so vague that, as the lawyers say, out of 20 people who filed lawsuits over the delay in building the same house, everyone can receive completely different compensation for moral damage. Moreover, the range can reach, for example, from 5 thousand UAH. up to 50 thousand UAH Similarly, to predict what the court will be generous for just for you, not a single conscientious lawyer will undertake. There are only some general considerations that can be oriented. For example, if an unfinished apartment - the tenth in your collection, and all your damage is in the chagrin of the fact that you are upset because of the inability to rent it out - then this is one case. Here, you are unlikely to be able to soften the court, and compensation is likely to be minimal.
So, in the case described above with the entrepreneur, the court refused to satisfy his claim for compensation for moral damage. Arguing it this way: you are either an entrepreneur who didn’t get a profit, or an unhappy private person who suffered moral damage. And it is quite another thing if you can prove that because of the delay in getting an apartment, your whole life literally flew off: with nerves, scandals, ruined by family happiness and troubles at work. In addition, it is necessary to take into account the tendency of courts to "cut" the amount of compensation for moral damage. So, if you are determined to receive 10 thousand UAH, you need to request with a fair margin, for example, 50 thousand UAH.
ON HEALTH. It is safer when moral damage can be directly attributed to the deterioration of the victim’s state of health. For example, in your statement of claim you can add that you suffered moral damage, the compensation of which you assess in such and such amount. The damage caused to you was expressed in spiritual experiences and the deterioration of your health (nervous overload and stress), which is caused by the uncertainty of living in a rented apartment (as an option - from the evil mother-in-law / mother-in-law).
In addition, the defendant did not fulfill the terms of the contract in due time, namely by violating the terms of putting the object into operation and transferring the ownership of the dwelling to you, moreover, by refusing to pay you a contractual penalty in a voluntary manner. These circumstances have significantly violated the vital plans of your family. As a result, the state of health worsened greatly and you had to go to the hospital, where the diagnosis of adaptation disorder was established (or which one you like better) and treatment was prescribed.
Of course, all this must be confirmed by a certificate from the hospital that, given the specifics of our most free medicine in the world, there should not be a big problem. The main thing is that in this way it is really possible to obtain compensation, and there are also examples of such solutions.
"METER IS MORE, METER IS LESS"
Rare house we rent in full compliance with the project. In the vast majority of new apartments there are deviations from the project area in a larger or smaller direction.
TRUST, BUT MEASURE. In contracts with developers, as a rule, it is provided that, according to the results of measurements of the BTI, there is an adjustment of the apartment's area and a corresponding recalculation of monetary obligations. But the staff of BTI make mistakes that can be expensive. For example, an error in the width of a room 6 meters long was only 4 cm. As a result, we get an error in determining the area: 6m x 0.04 m = 0.24 square meters. m, that at a price of 1 square. m 10 000 UAH. gives 2400.00 UAH. losses. Therefore, to guarantee everything you need to measure yourself.
In addition, according to the definitions contained in DBN B2.2.-15-2005, the total area of an apartment is the total area of housing and utility rooms, taking into account loggias, balconies of verandas, and terraces, which are taken into account with the coefficient according to Appendix B. And these coefficients these are: - for balconies and terraces - 0.3; - loggias - 0.5;
- glazed balconies - 0.8;
- verandas, glazed loggias and cold storerooms - 1.0.
However, developers often ignore these factors.
NEDOVES AND TRANSFER. There are two types of problems with space: the developer has not sufficient space, but is not in a hurry to compensate for this shortage; the developer favored the investor with unnecessary meters, and now he asks for additional money for them. With the "shortage" you can behave like a situation with a delay in putting the house. First try to agree amicably. If not, write a formal claim to the company, and then go to a lawsuit. In case of surplus space, you can also apply to the court in order to oblige the developer to bring the apartment into line with the project. But the whole red tape can take a year, and then a half. And all this time the apartment will "hang", because without documents from the developer you can not issue it as a property. Therefore, lawyers recommend to seek a solution to the issue, not bringing the case to court.
For example, in one house, the developer moved the wall in the common hall to 5 meters, which gave buyers of flats an additional 12 square meters. m corridor. Buyers are welcome at 12 thousand UAH. for the quarter. m was to nothing. They decided not to submit to the court, but this opportunity was present as an argument in the dialogue with the developer. We agreed on a compromise - to take the 12 square meters. m for half price. In another case, in Donetsk, investors were pleased with the unexpected and not free loggia. Which, moreover, was sheathed with plastic, for which they also wanted extra money. The happy owner of a new apartment did not want to pay for these gifts. Fortunately, this developer has not changed the national tradition to delay the delivery of the house. Therefore, it was possible to agree amicably with him: buyers do not start the process of extrusion of compensation described above, but he does not stick with offers to pay extra for a loggia with plastic.
"METERS, YES NOT THESE"
More complex situations arise when the total area of the apartment corresponds to the project (or has reasonable deviations), but the actual areas of the dwellings have significant differences with the design. Ie, for example, at the expense of a living room, a corridor, a storage room, etc. are increased. In this situation, the person has the right to either withdraw from the contract (which, as a rule, is unwise) or demand a corresponding price reduction.
NEED EXPERTISE. Price reductions can be achieved either by negotiation or in a court of law, when the question of reducing the cost of an apartment, which is caused by a change in the project, is brought before the forensic building examination. That is, first it is determined what the cost of the apartment would be if it were the same as in the project, and then the cost of the one that actually turned out. This difference can be demanded and compensated. And at the same time moral damage - how much arrogance and creative inspiration is enough.
The same approach can be used when there are other irregularities in the project, for example, using lower quality and cheaper material for internal walls. But it’s not a fact that an independent appraiser would conclude that these changes really reduced the cost of an apartment. Therefore, if these changes do not seriously interfere with life, it may be wiser to leave everything as it is.
Penalty is a penalty, which is calculated as a percentage of the amount of untimely fulfillment of a monetary obligation for each day of delay in execution (Art. 549 of the Civil Code).
In many economic contracts there is a clause which provides for penalties in the event of a failure of one of the parties to fulfill their obligations. Many of you, for sure, used or saw in the contracts a clause about this content:
“In case of a violation by the Supplier of the goods delivery time for more than 10 days, the Supplier shall pay the penalty to the Buyer for each calendar day of delay in payment in the amount of the NBU double discount rate of the total amount of the Agreement.”
The opportunity to provide in the contract such responsibility gives the Civil Code of Ukraine, namely Art. 230, which states:
"Penalty
As well as art. 546:
"Viskannya zobov'yaznnya mozhe za nepepechuvatsya penitentiary, surety, guarantor, outpost, pritromannyam, the waiter ..."
Suppose that in the process of economic relations for one of the subjects there was a debt in the amount of the principal debt - 98 000.00 UAH. The period of arrears is from December 16, 2010 to December 28, 2010, which is 13 days.
To calculate the interest it is necessary to know the size of the double NBU discount rate. For the period that we are considering, it was 7.75, multiplied by two and we get the size of the rate for the calculation - 15.5.
Now we have all the necessary data. Формула, по которой выполняется расчет пени , будет выглядеть следующим образом:
98 000,00 грн : 100% х 15,5 (двойная учетная ставка НБУ) : 365 (дней в году) х 13 (всего просроченных дней) = 541, 01 грн.
Если за период нашего расчета двойная учетная ставка поменяла свое значение, то расчет нужно вести по каждому периоду действия новой учетной ставки и просуммировать результаты. Рассмотрим на примере. Период возникновения задолженности – с 07.08.2010 г. по 28.12.2010 г. За это время произошло одно изменение учетной ставки – с 10.08.2010 г. Расчет пени будет выглядеть несколько иначе, чем в предыдущем случае, но внутри периода действия учетной ставки методика расчета остается прежней.
Расчет пени за период с 07.08.2010 г. по 09.08.2010 г.:
98 000,00 грн : 100% х 17 (двойная учетная ставка НБУ) : 365 (дней в году) х 3 (всего просроченных дней) = 136, 93 грн.
Расчет пени за период с 10.08.2010 г. по 28.12.2010 г.:
98 000,00 грн : 100% х 15,5 (двойная учетная ставка НБУ) : 365 (дней в году) х 141 (всего просроченных дней) = 5 867, 92 грн.
Таким образом, размер пени за весь период с 07.08.2010 г. по 28.12.2010 г. составит:
136, 93 грн + 5 867, 92 грн = 6 004, 85 грн.
Согласно п. 6 статьи 232 Хозяйственного кодекса Украины:
« Нарахування штрафних санкцій за прострочення виконання зобов'язання, якщо інше не встановлено законом або договором, припиняється через шість місяців від дня, коли зобов'язання мало бути виконано»
Таким образом, если у вас в договоре не предусмотрено иное, то расчет пени за период превышающий шесть месяцев, например, с 11.08.2010 г. по 26.02.2011 г., несмотря на количество просроченных дней – 200, будет выглядеть так:
98 000,00 грн : 100% х 15,5 (двойная учетная ставка НБУ) : 365 (дней в году) х 180 (всего просроченных дней) = 8 323, 29 грн.
Мы рассмотрели принципиальные моменты в методике расчета пени. А теперь представьте ситуацию, когда:
The task, as you understand, ceases to be trivial and turns into long calculations with checking and re-checking the results. All work can take a very long time.
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