Since July 2019, the process of buying a new building has undergone significant changes due to changes in legislation aimed at protecting the buyer and eradicating the vicious practice of deceiving equity holders and the growing number of unfinished projects.

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Almost all relations between citizens and developers are expressed through the conclusion of an agreement on equity participation (hereinafter referred to as AAC) and are regulated by the norms of the Civil Code of the Russian Federation, the Federal Law "On participation in shared construction of apartment buildings and other real estate objects and on amendments to some legislative acts of the Russian Federation" dated 30.12.2004 No. 214-FZ. The Law "On Protection of Consumer Rights", the set of rules "Residential multi-apartment buildings" approved by order of the Ministry of Construction and Housing and Utilities of the Russian Federation of December 3, 2016 N 883 / pr, as well as other regulations. In the event of litigation between the developer and the buyer, the acts of the Supreme Court that determine the judicial practice and features of the enforcement of certain regulatory acts are of no small importance. So, for example, according to the Definition of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated December 15, 2015 No. 18-KG15-214. It is indicated that "Law No. 214-FZ" On participation in shared construction "issues of compensation for moral damage and the recovery of a fine are not regulated, therefore, the provisions of the Law on the Protection of Consumer Rights in this part should be applied."

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In the relationship between the Developer and the Buyer, quite a lot of problems arise, and often the sales managers of the Developer do not behave in good faith, promising the buyer a beautiful view from the window, the presence in the future of social facilities in an accessible location, as well as other available benefits of which are not subsequently provided, the difficulty of such litigation for the buyer, is that the buyer does not have special legal knowledge, buying into the authority of the developer, the buyer believes the promises without expecting a catch, therefore he does not insist on indicating the promised benefits in the contract, expecting honesty and decency from the Developer. Elementary foresight can protect the buyer, this is the understanding that if the promises are not fixed in the contract or an additional agreement, then they are worthless. However, even in this case, the consumer protection law rises to protect the buyer. This conclusion was reached by the Supreme Court of the Russian Federation, having considered the complaint of the shareholder about the developer providing her with an apartment with an unacceptable view from the window ( determination of the Judicial Collegium for Civil Cases of the RF Armed Forces dated May 10, 2016 No. 5-KG16-47 ).

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The essence of the case was that when examining her new apartment, located on the first floor of the house, the plaintiff discovered that the usual cityscape was not visible from the window. Moreover, not far from the window there is a gas control point, which also closes the view. Thus, the view opening from the window of the purchased apartment did not suit her. The shareholder demanded that the developer compensate for moral damage, as well as demolish the gas cabinet or provide another apartment: after all, when the contract of equity participation was concluded, no one warned her that a gas control point would be located under her window. Given that the main selection criterion for the buyer of housing was the view from the window, and this would be of significant importance in the selection of housing. Thus, in her opinion, a significant flaw was discovered in the disputed apartment, and the developer is obliged to provide a similar apartment (Article 21 of the Law of the Russian Federation of February 7, 1992 No. 2300-I " On Protection of Consumer Rights ", hereinafter - the law on the protection of rights consumers).  

However, the courts of first and appellate instances sided with the developer, substantiating this with a number of reasons (the appeal ruling of the Moscow City Court dated November 12, 2015 No. 33-42257 / 15 ).  

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Firstly, in their opinion, the so-called view from the window of the apartment was not the subject of the contract, and therefore the placement of gas equipment under the window is not a violation of the contract.

Secondly, the house complies with SNiPs and other technical regulations (since it was put into operation), the quality of housing is suitable for living in it, which means that the apartment has no significant drawbacks.

And, finally, neither the agreement on participation in shared construction, nor the Federal Law of December 30, 2004 No. 214-FZ " On participation in the shared construction of apartment buildings and other real estate and on amendments to some legislative acts of the Russian Federation " (hereinafter - the law on participation in shared construction) do not oblige to inform the shareholder about the location of engineering equipment as part of the common property of an apartment building and coordinate its installation with him.

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The RF Armed Forces, having considered the case, in turn, came to somewhat different conclusions:

• the seller must promptly (before the conclusion of the contract) provide the consumer with information about the product, which provides the opportunity for a free and correct choice of the product, eliminating any doubts about its consumer properties and characteristics ( clause 1 of article 10 of the law on the protection of consumer rights );

• when concluding an agreement on participation in shared construction, the developer is obliged to provide the shareholder with all reliable information regarding the house under construction, which makes it possible to freely and correctly choose a room in the facility under construction (including information on the composition and location of electrical, sanitary and other equipment) ;

• neither in the contract, nor in the design or other documentation available to the shareholder at the time of the conclusion of the deal, there was no information about the location of the gas cabinet in the immediate vicinity under the windows of the chosen apartment.

Thus, the Court concluded, the consumer, when concluding the contract, was not provided with the necessary and reliable information about the facility under construction, which means that his rights were violated, and the apartment was of poor quality.

At the same time, it is impossible to transfer another apartment to a disappointed co-owner due to the fact that the consumer has the right to demand from the developer to eliminate the deficiencies free of charge, reduce the price of the contract or refuse to execute the contract and demand the return of the price with interest, but not the provision of another apartment ( clause 2 article 7 of the law on participation in shared construction ).

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In a new consideration of the case, taking into account the instructions of the RF Armed Forces, the court of first instance awarded the shareholder compensation for moral damage and a fine for involuntary satisfaction of consumer demands.

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However, the buyer often becomes not only a victim of deception, promises and admonitions by the developer's managers, who understandably have the goal of getting a percentage of sales and therefore are ready to tell and promise anything to the buyer, just to sell, the buyer also becomes a victim of the developer's dishonesty, such as failure deadlines for the completion of the object, however, in this regard, the legislator protects the buyer, and, as usual, the buyer can count on good compensation from the developer. So According to Part 2 of Art. 6. Federal Law No. 214-FZ dated 30.12.2004 "On participation in the shared construction of apartment buildings and other real estate objects and on amendments to certain legislative acts of the Russian Federation" in case of violation of the contractual deadline for transferring the shared construction object to the participant of the shared construction, the developer pays to a participant in shared construction a forfeit (penalty) in the amount of one three hundredth of the refinancing rate of the Central Bank of the Russian Federation, effective on the day of fulfillment of the obligation, of the contract price for each day of delay. If a participant in shared construction is a citizen, the forfeit (interest) provided for by this part is paid by the developer in double amount. We see that especially the legislator has strengthened the developer's responsibility to ordinary citizens, who, unlike legal entities, sometimes cannot hire a lawyer when concluding a contract and rely solely on the decency of the developer.

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It is also very important for the buyer to correctly accept his apartment from the developer, often the developer wants to present this as an ordinary formality, they say, we will quickly sign the whole apartment, but everything is not so simple, if the buyer signs the act, he will agree with all the existing shortcomings and accept them.  It is also impossible not to sign the act, since  in this case, the act will be considered unilaterally signed and the Developer will be very satisfied with this.

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When accepting an apartment, it is necessary to take an inspection sheet from the developer (sometimes it is called a defective statement). It contains all the violations that were identified during the examination. The defective statement precedes the signing of the acceptance certificate.

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The floor, layout and area of the apartment, in fact, must coincide with the design values. When accepting an apartment in a new building, it is necessary to check the entrance, doors and windows of the apartment, floor and ceiling, ventilation system, electrical wiring and appliances, heating and thermal insulation, finishing (if the apartment is rented out with finishing).

What you need to pay attention to when inspecting a property:

At the entrance, the exterior, decoration and lighting, the performance of the elevators are examined.

Door frames must be level and installed vertically.

Double-glazed windows should come off smoothly, the window opening should not have distortions, all window fittings should be intact.

The height of the ceiling should match in several corners, the color of the ceiling should be even without traces of moisture, cracks and drops.

The level of the screed on the floor should be checked with a building level; there should be no cracks or voids on the floor.

The walls should be without obvious vertical deviations, there should be no cracks in the corners.

When accepting an apartment, the developer must have ventilation vents; there should be ventilation draft in the vents.

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All rooms must have light, sockets must be in working order, the bell must be functional, the electrical panel must have an RCD and a counter.

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Thermostats must rotate smoothly, all pipe connections must be welded, plumbing must be functional.

The provided interior decoration must be of high quality: the wallpaper must not have bubbles, the pattern on the walls is the same, the laminate has no bulges and dips, etc.

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It is important to understand that if the developer does not provide any documents, or sabotages any actions, there is no need to endlessly call him and swear, so the buyer will only lose time and nerves, communicate in writing exclusively using the details specified in the contract, e-mail, Russian post by the address. When sending correspondence by Russian post, we recommend doing this also electronically, the Russian Post provides such a service, in which case the buyer will be able to fully retain evidence of what he sent, what text was in the letter, when he sent it and to whom. If it is not possible to send correspondence electronically, do not worry! The buyer can send correspondence by letters at the post office, while we strongly advise the buyer to draw up an attachment inventory sheet, which indicates briefly what the buyer sent to the Developer. Receipts and a list of the enclosure for the shipment must be kept by the buyer, this is important.

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