Constantly depreciating hryvnia leads to an increase in the cost of square meters of housing under construction in Ukraine.
And after it, the number of those who refuse to buy an apartment at a new price has increased - people simply did not have enough money to pay new contributions to builders. Because they began to terminate investment agreements. Most often, two categories of investors did this: those who were not ready for the fact that an apartment would cost one and a half times more, and also those who did not manage to convert currency savings in time.
Those buyers, whose main savings and income were calculated in hryvnia, after rising prices for squares realized that they simply do not have the opportunity to continue payments by installments.
However, the developers claim that there are not so many people who want to leave the project before it is commissioned.
“We find alternative offers in objects, we try to keep the client. In fact, the contract breaks are few, ”the head of the marketing and sales department of the company of one of the construction companies told us.
Experts believe that the main argument for staying in the project for the buyer is inflation.
“If investors terminate contracts that concluded a year or two ago, then large losses are obvious. Therefore, buyers do not really want to do this if there is at least a minimal chance of getting an apartment, ”the construction company lawyer commented on the situation.
At the same time, they note that the number of people willing to exit the investment and return their funds will grow. At least in the capital.
In connection with the decisions of the Kyiv City State Administration to stop the construction of a number of residential complexes at the beginning of 2015, there was a tendency for private investors to exit investment projects.
In the current legislation for builders, no one has approved uniform rules on how an investor should exit the project. Everything is governed by the contracts of each construction company with customers.
Legally prescribed only general postulates. Investment agreements (including those concluded with the Construction Financing Funds and the Real Estate Operations Funds, which have the exclusive right to raise money for individuals to build housing) are allowed to be terminated by agreement of the parties, unilaterally (if such a possibility is provided by the contract or law) and by court order .
Some contracts do not indicate the possibility of the investor unilaterally terminating the contract and receive his investments. In this case, withdrawal from the project is considered a dispute, which is resolved only in court.
Most often, individual investors use the first way (by agreement of the parties) or by assigning the right to claim. Simply put, selling your unfinished housing along with the money invested in it to another person who is able to pay the rest of the amount for housing and will receive an apartment in the property when it is completed.
In theory, a person who does not have enough money for more expensive housing, there is another opportunity - to choose another apartment from the developer. Smaller and cheaper.
Some contracts also provide for the possibility of termination of the contract solely on the initiative of the developer, if the investor has not fulfilled the financial obligations under the contract. Moreover, in this case, he is also charged a fine at the double NBU discount rate (60% per annum) on the amount of unfulfilled obligations for each day of delay.
That is, if the investor has entered into a contract and owes the developer, for example, 50 thousand UAH, then in case of late payment he is charged a penalty in the amount of 60% per annum for each day of delay. And if the developer decides to terminate the contract, because the investor has accumulated debts, the penalty is deducted from the amount that the investor has already deposited. That is, he will get his money back on his hands, minus all the sanctions.
In this case, for a unilateral termination of the contract, the developer is often enough to send a letter to the investor.
“If the transaction is subject to state registration (for example, at a notary), then the agreement on termination of the contract must“ pass through a notary ”. If not, a simple letter is enough, ”said Alexander Bosenko.
Most of all, members of cooperatives may suffer if a contract is terminated. According to the Law of Ukraine “On Cooperation”, upon early termination of the contract, the share contributions for housing are returned to the member of the cooperative in accordance with its charter.
“As a rule, the charters of residential construction cooperatives (HBC) stipulate that in the event of an voluntary withdrawal or exclusion of an associate member from a cooperative, the share value is returned within two years after the application is submitted. Moreover, the value of a share is determined by the cooperative at the time of filing an application for withdrawal, and not at the time of its return, ”explained the lawyer of Dominion Law Group, Irina Stolyarchuk.
That is, if you invested money in the hryvnia, and inflation for two years amounted to a double-digit number, then by the time you get the money back you can only get a used car for it. Moreover, if the statute does not provide for the responsibility of the cooperative for the late return of the share (and this is possible), then it is senseless to demand justice.
“The rights of the investor in the cooperative are not actually protected. In the event that the developer fails to fulfill his obligations at the construction stage and later HBC at the service stage, judicial protection of a cooperative member is often practically impossible due to the fact that HBC simply do not hand out the documents necessary for the court to its members, ”said Stolyarchuk.
Another point: in accordance with Art. 19 of the Law of Ukraine "On Cooperation", it is the cooperative that owns the building, so he can take a loan from a bank, transferring as collateral an object under construction or property rights to it - those apartments for which people contributed their money. At the same time, until the full repayment of the loan, the cooperative cannot transfer the apartment to its customers without the consent of the bank - for registration of property rights. So, without the consent of the bank, it is also impossible to get out of the cooperative and get your money back.
Contract termination by agreement of the parties occurs as follows: the investor warns the developer in writing about the termination of the contract, signs a bilateral agreement indicating the date of return of funds and waits for his money.
How much he will lose on this and what he will additionally pay for depends on the terms of the contract.
“For example, in contracts for participation in the construction financing fund (CFF) there is usually such a clause as payment to the manager for filing a waiver from participating in the construction financing. The price of the issue is 5% of the value of the investment object at the rate of the price per square meter on the day of the submission of the application for refusal to participate, ”Shostya explained.
And still there are penalties for the developer to terminate the contract: from 3% to 30% of the apartment value at the time of application. Kievgorstroy, for example, returns to the buyer on its current account all the funds actually deposited under the contract minus 5% as a fine.
According to the developers, the money is returned at different times: for UDP - for 60 days, for Kovalskaya it is registered up to 90 days.
“But in 99% of the money is credited to the investor’s current account in the shortest possible time. Namely, within 15 banking days ”, - assured the marketing manager of PSG“ Kovalskaya ”Yulia Turko.
Sometimes in contracts it is provided that in case of termination of the contract due to the fault or initiative of the investor, the money is returned only after the apartment is re-sold to a new buyer or after construction is completed. This is especially characteristic of CFF contracts.
“At the same time, in most cases, without the assistance of the developer, it is almost impossible to independently learn information about the re-sale of the apartment,” Alexander Bosenko admitted.
That is, even with the successful completion of the project, the waiting for money can last for six months or longer.
In order not to give up the search for a new buyer at the mercy of the developer, the possibility was invented of changing the party under the contract to a third party (it’s also a concession to the right of claim). It is governed by art. 512–519 Civil Code. In order to carry out such a procedure, it is necessary in writing to inform the developer about the intentions to withdraw from the investment project by assigning your right - this is the first step. The second is to get consent from the developer for such a maneuver. The third is to find a new buyer and sign an agreement to change the party under the contract. The last is to pay the developer a remuneration for the change of ownership (if it is stated in the contract).
Investor Kievgorstroy, for example, if he did not pay the entire cost of housing, for the registration of the contract of assignment of rights and obligations must lay out the company as a reward 2% of the value of the object of assignment. If the buyer has fully paid for the apartment or the assignment is made to the relatives of the buyer (to one of the spouses, to parents, to children), then the contract of assignment of rights and obligations is made free of charge.
At Kovalskaya PSG, the transfer price to direct relatives is 1% of the value of the object, to all the rest 5%.
But in the market as a whole, if the rights are assigned to persons of the first kinship group (children, spouse or parents), then the developer’s remuneration is paid in the amount of 0.1 to 1% of the contract price, and to outsiders - an average of 3%.
After that, the new creditor (buyer) receives the documents under the contract (the contract itself, payment confirmation, etc.), pays the developer the due amount, and the builder returns the money to the primary investor leaving the project.
But with UDP, the rights transfer mechanism is valid only when the apartment is fully purchased.
“In this case, the company-developer terminates the contract with the former investor, and concludes the contract with the new owner,” explained UDP PR-manager Galina Martynenko.
This option is the most comfortable for the developer, who does not have to give money, and for the buyer, who still gets a new home. And you can change as a smaller (or cheaper), and a larger (or more expensive) living space in any of the objects of the developer.
In Kievgorstroy, for example, if the buyer wants to change cheaper housing to more expensive (more than 100 thousand UAH), he is exempt from paying a company fee.
If the difference is less than 100 thousand UAH, the buyer pays the company as a reward for 1% of the value of the “old” apartment.
And if the value of the property for which they want to change is less than the cost of the original, compensation to the developer will be 2% of the value of the apartment, which was refused.
To reduce the risks in the first place - financial, you need to carefully approach the drafting of the contract and prescribe in it the maximum number of possible situations and exit from them in their own interests. At the very least, try to talk with the developer away from the model agreement.
“In the contract itself, provide favorable terms for the return of money, penalties for the developer, mandatory accounting of the inflation index, etc.,” advises Alexander Bosenko.
By the way, many treaties provide for sanctions for termination, and it is impossible to protest them in court, so you need to change them before signing.
Also, lawyers warn that from the moment of termination of the contract you lose the right to demand an apartment from the developer, but you get the risk of not receiving the money back.
That is, in order not to remain without both, the agreement on termination of the contract should indicate that it comes into force only after the developer has returned the funds to the investor. “Thus, you retain the right to demand housing from the developer until he fully pays you the money,” said Bosenko.
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