In addition, the public law company "Foundation for the Protection of the Rights of Citizens of Shared Construction Participants" has other important advantages:
Main tasks and functions The main task of the created structure is to protect the rights of participants in shared construction. In case of bankruptcy, losses are compensated by contributions previously transferred by the developer.
Essentially, this single fund developers will work by analogy with the Deposit Insurance Agency (DIA), which guarantees the return of funds to people who have placed their money on bank deposits. In general, we can say that equity holders who entered into a DDU after January 2017 have new mechanism protecting your investments.
The funds accumulated in this fund will be used exclusively to pay compensation to deceived shareholders in the event of the Developer's bankruptcy, or to finance the completion of construction. In the latter case, this may be financial aid or a loan to a new developer who will assume obligations to complete the construction of the problematic object.
It is prohibited to use the funds of the fund for other purposes. For new equity holders, this means a significant reduction in the risk of investing in the purchase of apartments in new buildings.
Firstly, there is a real chance to complete the house, even when the Builder went bankrupt. Secondly, the very mechanism of compensation payments to equity holders has become much simpler and clearer (compared to liability insurance).
Thirdly, these funds will be managed not by private insurance companies, but by the state structure.
Info
In order for the shareholder to have the opportunity to protect himself in the event of bankruptcy of the developer or the occurrence of other unforeseen circumstances, the legislation on participation in shared construction provides for the mandatory registration of a DDU in government agency. Requirements for developers Very serious conditions in relation to developers are enshrined in Federal Law No. 218.
The official name of the developer must contain the name - "specialized developer". Any commercial activity for specialized construction organizations engaged in the construction of residential and non-residential real estate under the DDU is prohibited.
On July 21, 2017, the State Duma adopted a law on the state fund for the protection of the rights of equity holders. Construction companies are subject to stringent requirements.
But will it help the families of equity holders to become owners of new apartments. In Russia, the construction of residential facilities with the help of public investment has been legally regulated since 2004. Conclusion of an agreement equity participation(DDU) gives families a chance to get cheaper housing market value. However, they risk losing hope for housing and being left without savings if the builders fail to fulfill their obligations. In 2014, for the first time, the state intervened in the business of shared construction in order to protect the interests of citizens - investors housing construction. Prior to registering a DDU with Rosreestr, a construction company was obliged to insure liability from an insurer or take a surety from a bank.
This item caused a friendly misunderstanding of both builders and experts, since any construction begins with these costs.
Compensation for losses Losses to equity holders in the event of bankruptcy of a construction company are reimbursed from the compensation fund for shared construction in a certain order.
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Content
Issues of support for deceived equity holders are very often raised at the most high levels. To support this category of citizens, in 2017, a compensation fund was officially created to protect the rights of citizens participating in shared construction.
Did you know that… Since January 2017, a state compensation fund for shared construction has been created in Russia. The people also call it the developer compensation fund or the fund for protecting the rights of equity holders.
What it is? Who should be happy about this? Legislators argue that this should please equity holders - i.e. participants in shared housing construction in apartment buildings. After all, the main task of the construction compensation fund is to pay compensation to equity holders under Equity Participation Agreements (DDU), in the event of the Developer's bankruptcy.
What about the builder's insurance? It means insurance civil liability A builder that has been active so far? This insurance (for more details about it, see the link above), was launched in 2014, and for several years has shown its inconsistency. More precisely - inconvenience and complexity in implementation.
The Fund for the Protection of the Rights of Citizens - Participants in Shared Construction is registered in the form of a public company and begins its work, AHML said. The registration of the fund in the form of a public company was completed on 20 October. At the expense of the fund, compensation will be paid to participants in shared construction or construction of unfinished real estate will be financed. The fund will be financed by contributions from developers in the amount of 1.2 percent of each share agreement after the date of state registration of the fund.
Non-payment by the developer of the contribution to the fund of equity holders is the basis for the suspension of state registration of the agreement for participation in shared construction. detailed information about the procedure and features of making contributions by developers and registration of DDU is posted on the website of the fund.
The Office of Rosreestr for the Kursk Region informs about the creation of the Fund for the Protection of the Rights of Citizens - Participants in Shared Construction. On October 20, 2017, the Fund for the Protection of the Rights of Citizens - Participants in Equity Construction began its work. The creation and functioning of this Fund is regulated by Federal Law No. 218-FZ dated July 29, 2017 “On a public law company to protect the rights of citizens participating in shared construction in case of insolvency (bankruptcy) of developers and on amending certain legislative acts Russian Federation". In pursuance of the provisions of the Law, the Government of the Russian Federation issued a number of resolutions on the work of the Fund.
The Fund for the Protection of the Rights of Citizens - Participants in Equity Construction was registered as a public company on October 20 and began its work.
The State Shared Construction Fund has replaced the developer liability insurance mechanism and is designed to protect the rights of equity holders in new housing construction projects. In contrast to the DDU insurance system (contracts of equity participation), the fund's activities will be directed, among other things, to financing the completion of the facility. The Ministry of Construction of Russia became the founder of the Fund for the Protection of the Rights of Citizens Participating in Shared Construction, CEO appointed head of AHML Alexander Plutnik.
In the event of bankruptcy of the developer, the compensation fund will be used to pay compensation to citizens participating in shared construction or to finance activities to complete the construction of unfinished construction projects.
According to part 5 of article 25 of Law No. 218-FZ, the developer’s obligation to pay mandatory contributions (contributions) to the compensation fund arises in relation to an apartment building and (or) a residential house of a block building, consisting of three or more blocks, if an agreement on participation in shared construction with the first participant in the shared construction of such a property is presented on state registration after the date of state registration of the Fund. From the date of state registration of the Fund, it is not allowed to register the first agreement on participation in shared construction without paying mandatory contributions (contributions) to the Fund.
According to part 1 of article 10 of Law No. 218-FZ, the amount of mandatory deductions (contributions) of developers to the compensation fund is 1.2 percent of the price agreed by the parties for each agreement for participation in shared construction, which provides for the transfer of residential premises. At the same time, the obligation to pay contributions to the Fund arises in relation to contracts for participation in shared construction, which provide for the transfer of residential premises, regardless of whether the participant in shared construction is an individual or legal entity.
According to part 3 of article 10 of Law No. 218-FZ, mandatory deductions (contributions) of developers are made to the nominal account of the Fund, the owner of which is the Fund, at least three working days before the date of submission of documents for state registration of the contract in Federal Service state registration, cadastre and cartography (hereinafter - Rosreestr).
According to part 1 of Article 11 of Law No. 218-FZ, upon state registration of an agreement on participation in shared construction, which provides for the transfer of residential premises, Rosreestr sends a request to the Fund for payment or non-payment by the developer of mandatory deductions (contributions) under the agreement on participation in shared construction. The Fund, no later than one working day from the date of receipt of such a request, provides the information specified in the request.
According to Part 1 of Article 16 of the Federal Law of July 13, 2015 No. 218-FZ “On State Registration of Real Estate”, the term for state registration of an agreement on participation in shared construction is set from 7 to 9 business days, depending on the method of submitting documents for state registration.
Detailed information is available on the Fund's website on the Internet at www.fond214.rf. Questions about the work of the Fund and other requests, please send to e-mail: [email protected]. Phone of the specialized contact center 8 800-7007-214 or 8-495-685-94-41.
Payment of obligatory deductions (contributions) of the developer to the compensation fund must be carried out according to the details published on the official website of the Fund in the "For Developers" section.
Recall that the law on the Equity Construction Fund - 218-FZ - was signed by Russian President Vladimir Putin on July 31, 2017. By mid-October, a resolution of the Government of Russia was adopted on the creation of a public company "Foundation for the Protection of the Rights of Citizens - Participants in Equity Construction". Now, when registering equity participation agreements in housing construction projects under newly issued permits, the developer is required to make a contribution to the compensation fund.
The topic of deceived equity holders is still one of the most relevant in our country. The state is trying to take some steps to protect citizens who have suffered from unscrupulous developers. One of the real steps in this direction was the creation at the end of 2017 of the Fund for the Protection of the Rights of Citizens - Participants in Shared Construction. The main idea of creating the fund is to accumulate funds at the expense of mandatory deductions from developers, and in case of bankruptcy of the developer - to compensate citizens - participants in shared construction for their financial losses.
The Fund was established by the Government of the Russian Federation in accordance with Article 23.2 of the Federal Law "On Participation in Shared Construction of Apartment Buildings and Other Real Estate" N 214-FZ.
Registration of the Fund for the Protection of the Rights of Citizens - Participants in Equity Construction took place on October 20, 2017 in the form of a public company. The specified date is the day of the beginning of the Fund's activity.
What is the purpose of the Foundation? It was created to protect the rights and interests of citizens who have become equity holders in the event that the developer becomes bankrupt.
How are the funds of the Fund formed? This is done through mandatory contributions from those developers who, for the construction of apartment buildings, attract funds from citizens who are participants in shared construction.
What contributions to the Fund should developers make? Each developer must pay mandatory deductions (contributions) to the Fund in the amount of 1.2 percent of the price of each share agreement agreed with the shareholder. However, the amount of the above contribution may vary based on federal law but not more than once a year.
What are the functions of the Foundation? The main functions are:
The fund was not created in a vacuum. In 2016-17, the situation with defrauded equity holders escalated greatly. Popular unrest associated with the problems of new buildings and equity participation in housing construction has taken on serious proportions. It came to shares in the Administration of the President of the Russian Federation.
Attempts by the Ministry of Construction of the Russian Federation to solve the problems on their own did not lead to anything.
As a result, legislators added article 23.2 “Protection of the rights of citizens participating in shared construction” to Law N 214-FZ. This article provides for the creation of a compensation fund in order to protect the interests of equity holders. The principle of operation of the fund is approximately the same as the work of the Agency for insurance of deposits of citizens in banks. If everything works as planned, deceived equity holders will be able to receive payments from the fund in case of problems with the developer.
Thus, the main reason for the creation of the Fund for the Protection of the Rights of Citizens - Participants in Shared Construction was an attempt by the state to somehow insure citizens who are trying to build their own housing with their own money.
Recall that the Fund was registered on October 20, 2017. Therefore, all developers who, after the specified date, submit for state registration the first equity agreement they have concluded, immediately automatically become participants new program. They are obliged to transfer contributions to the Fund for the Protection of the Rights of Citizens - Participants in Shared Construction in the amount of 1.2 percent of the price of each share agreement.
It should be noted that developers in the case of transferring contributions to the Fund are not required to insure their liability in insurance companies and / or receive a guarantee from banks.
We draw attention to one important circumstance. If the developer of the house submitted the first equity participation agreement for state registration before October 20, 2017, inclusive (that is, before the day of registration of the Fund), then in order to register such an agreement and all subsequent agreements in relation to this house, the developer must submit to the registering authority liability insurance contracts or bank guarantees for non-fulfillment of obligations to transfer residential premises under an equity participation agreement. Equity participation agreements will not be registered without the submission of these documents.
Thus, two situations are possible today:
Let's consider these situations in more detail.
Situation 1- the developer does not pay contributions to the Fund for the Protection of the Rights of Citizens - Participants in Shared Construction.
If the developer has insured its liability to equity holders and/or its obligations to them are secured by a bank guarantee, then in the event of bankruptcy of the developer or similar problems, equity holders can count on adequate compensation from the insurance company or bank.
If the developer has not insured his liability and does not have a guarantee from the bank, then equity holders can count on compensation payments only as part of bankruptcy measures. Whether some money will reach equity holders, and in what amounts, is a question.
Situation 2— the developer pays contributions to the Fund.
In this situation, the interests of equity holders are already more reliably insured, because. in case of bankruptcy of the developer, the Fund for the Protection of Citizens' Rights will make payments to participants in shared construction.
So, the Fund accumulates funds transferred by the developer. If the developer completes the construction of the house, equity holders receive apartments, then everything is fine. The funds transferred by the developer remain in the Fund.
If the developer is declared bankrupt before the completion of construction, then each equity holder will be able to count on receiving compensation in the amount of the cost of up to 120 square meters of housing. That is, if the shareholder paid for the construction of an apartment with an area of more than 120 square meters, then he will be compensated for a smaller amount, but equivalent to the specified area.
In the rules for payments from the Fund, the analogy with insurance is clearly visible. bank deposits. Indeed, in the event of a bank failure, a depositor can receive from the Deposit Insurance Agency the amount of his deposit, but not more than 1.4 million rubles.
Recall that payments from the Fund are possible to equity holders only of the developer who began to register equity participation agreements after October 20, 2017 and, accordingly, began to deduct contributions to the Fund for the Protection of the Rights of Shared Construction Participants.
Separately, we note that the Fund, in pursuance of the function of protecting the rights of citizens who are participants in shared construction, will make payments only if the developer is declared bankrupt by the arbitration court, bankruptcy proceedings are opened in relation to it and there is evidence of payment by the developer assessed contributions to the Foundation.
The same equity holders who are not subject to the program with the Fund (their developer began registering equity participation agreements before October 20, 2017), in the event of bankruptcy of the developer, will be able to apply for insurance payments(if the developer has insured his liability), or payments from the guarantor (if any).
The procedure for payments from the Fund is established by Decree of the Government of the Russian Federation of October 7, 2017 No. 1233.
In order to receive payments, participants in shared construction at their meeting must decide to receive compensation from the Fund. After that, the Foundation, within 14 days from the date of the decision by the meeting, posts on its official website a message about the start date for accepting applications from citizens for payment of compensation, as well as about the place, time, form and procedure for accepting applications.
An important detail. Citizens no longer have to wait for the completion of the bankruptcy proceedings of the developer. They have the right to apply for reimbursement before this completion (which can drag on for years).
When applying for reimbursement, each shareholder must submit:
Payment of compensation from the Fund is carried out within 10 working days from the date of submission of all necessary documents.
However, the scheme for paying money to equity holders is not the only one. The Fund can send money to complete the construction that has begun. But to make such a decision, the degree of readiness of the house, the amount of funds provided and the time required to complete the construction, the number of concluded equity participation agreements are taken into account.
If the Fund takes this path, then it will have to provide funds for the completion of construction to the one chosen by the competition legal entity who intends to become the acquirer of an object of construction in progress, land plot, and fulfill the obligations of the developer to equity holders, that is, to complete the house.
What is the amount of compensation for each shareholder. The amount of compensation is calculated as the product of the total area of all residential premises to be transferred to a citizen participating in shared construction and the average market value of 1 sq. m of total living space. At the same time, rates on the primary housing market in the relevant subject of the Russian Federation are taken into account, the value of which is determined in the period in which the contract was concluded.
But there is a significant limitation. The total area taken into account when determining the compensation payment cannot exceed 120 square meters. This means that if the shareholder intended to buy an apartment with an area of more than 120 square meters, and, accordingly, made full payment under the equity agreement, then he will not receive money for meters exceeding the specified limit.
It is assumed that from July 1, 2018, those equity holders who enter into equity participation agreements for new buildings, for the construction of which a permit will be issued from July 1, 2018, will either not fall into a situation where the developer delays construction or goes bankrupt, or (if there are serious problems) will receive a compensation payment from the Fund.
Thus, with the creation of the Fund for the Protection of the Rights of Citizens - Participants in Shared Construction and with the introduction of new requirements for developers, it is expected that their activities will become more transparent, material base- more stable, control over the activities of each developer will increase. Therefore, future shareholders after the conclusion of an equity participation agreement will be protected more reliably.
There is information that in the future in Russia there may be a transition to a new scheme for acquiring housing under construction. Instead of shared construction, there will be so-called project financing. At the end of 2017, the Government of the Russian Federation approved a plan for a phased transition from equity to project finance housing construction.
On July 21, 2017, the State Duma adopted a law on the state fund for the protection of the rights of equity holders. Construction companies are subject to stringent requirements. But will it help the families of equity holders to become owners of new apartments.
In Russia, the construction of residential facilities with the help of public investment has been legally regulated since 2004. The conclusion of a share participation agreement (DDU) gives families a chance to get housing cheaper than the market value. However, they risk losing hope for housing and being left without savings if the builders fail to fulfill their obligations. In 2014, for the first time, the state intervened in the business of shared construction in order to protect the interests of citizens - investors in housing construction. Prior to registering a DDU with Rosreestr, a construction company was obliged to insure liability from an insurer or take a surety from a bank. But insurance companies and banks could not finish building all the problematic objects and return all the money to the deceived equity holders, whose number continues to grow. According to the new law of 2017 on the compensation fund for equity holders, a mechanism of state guarantees for compensating losses in shared construction is being created.
The adoption of the 2017 law on the compensation fund for equity holders is fundamentally changing the work in the shared construction market.
Initially, the new equity construction fund was defined as a non-profit organization (NPO) included in the area of operation of the state "Agency for Housing Mortgage Insurance" (AHML). The founder was the Ministry of Construction, he owns a number of important amendments to change the status of the compensation fund for equity holders.
The Duma approved the status of a public law company (PPC) for the "Fund for the Protection of the Rights of Citizens - Participants in Shared Construction" with functions and powers characteristic of state power.
The company is accountable to the President of Russia, control over financial activities carried out by representatives of both houses of parliament and Accounts Chamber RF. The creation of such an organization with all legislative standards of activity is planned to be completed by November 2017.
The Equity Construction Fund has two main tasks - to help equity holders in and to complete problematic construction. Its functions are connected with these tasks.
The developer liability insurance mechanism, which has existed since 2014, was recognized as ineffective by both independent experts and government agencies. In case of bankruptcy of a construction company, the cost insurance policy or interest for a guarantee in a bank could not cover the losses of all owners of shared construction contracts, all the more they were not enough to complete the construction of the problematic object. The number of unfinished objects and deceived equity holders continued to grow.
Information transparency is a necessary condition for the operation of the new compensation fund, prescribed by law. Information on shared construction will be posted on the official website of the Unified Institute for Development in the Housing Sector, along with the AHML resource. It should reflect:
The creation of the official website of the compensation fund for equity holders is planned to be completed by the beginning of 2018.
The rate of the compensation fund of equity holders in the amount of 1.2% does not raise objections from experts. The amount of contributions of 18-25 billion in the first years of the fund's existence is quite sufficient to cover the future problems of one or two regional contractors. The law does not prescribe where to get money from in case of a shortage of funds, it is possible that from the budget.
Compensation under the contracts of past years is not provided for by the new law. If an object under construction has at least one equity participation agreement signed according to the old scheme, it will not be included in the scope of the compensation fund.
The central provision of the new law on the compensation fund of equity holders is the imposition of strict requirements for builders, which may leave very few developers on the equity construction market. The presentation of these requirements will begin at the conclusion of the DDU from 01.07. 2018.
Losses to equity holders in the event of bankruptcy of a construction company are reimbursed from the compensation fund for shared construction in a certain order.
The Fund undertakes to pay the losses of equity holders in full.
The amount of payment to equity holders is determined by multiplying the cost of one square meter housing in its area.
Analyzing the law, experts find many nuances and make various predictions. Thus, restrictive measures in relation to business will force small companies to leave the share construction market. Large companies, in order to start new construction, will have to create subsidiaries, and this will lead to additional costs. With the monopoly position of large developers, all this will lead to an increase in housing prices and hit the pockets of equity holders.
So far, one thing is clear: new law on the compensation fund is able to solve the problem of protecting equity holders. But it can cause a drop in business activity in the shared construction market.
