Shared construction involves concluding an agreement between two parties - the developer and the direct participant in the construction. Each party has its own obligations, violation of which entails penalties. If the developer violates the deadline for delivery of the property, then according to legislative norms he is obliged to pay a penalty to the future owner of the property. The amount of the penalty is established by regulatory documents at the state level; it cannot be reduced.

To make a financial claim, the participant must make preliminary calculations of the penalty.

This can be done using a special calculator for penalties for DDU, which is easy to find on various Internet portals or on your own. The penalty formula will help you correctly calculate the final amount.

Shared construction is a very popular type of purchasing a new apartment. It is convenient for both parties. The developer receives financing directly from the potential buyer, and the participant invests the money in stages, which allows him not to take out huge loans and save money on loan interest. In addition, such housing has a lower exit cost for participants in shared construction.

This type of legal relationship is regulated by an agreement concluded at the preliminary stage. This document is drawn up in a conditionally arbitrary form, but must contain certain points, without which it is considered void. The rules for formalizing mutual relations between the parties are regulated by Federal Law No. 214-FZ “On participation in shared construction of apartment buildings and other real estate... in the Russian Federation” dated December 30, 2004. According to this regulatory document, the contract for shared participation in construction (DDU) must include the following main points:

1. The price of the contract and the procedure for paying individual amounts, indicating the deadlines.
2. The date of transfer of the finished object to the participant.
3. Warranty period for real estate.

In addition to these points, the contract specifies a lot of important nuances, including the conditions for compliance with the stated points. For the buyer of shared ownership, an extremely important aspect is the completion date of the property. Based on this date, he makes his own plans. If the developer violates the established periods, the participant suffers losses, and not only moral ones.

The concept of penalties

A penalty is an amount determined by law or contract, which is paid by a party that has not fulfilled its obligations or performed them improperly.

Based on the fact that each participant is obliged to comply with the clauses of the agreement. If the specified deadlines for the readiness of the facility are violated, the developer must pay a penalty to the injured party. The penalty is used as security for the obligations assumed. For parties to an equity participation agreement, the amount of penalties is provided for by Federal Law No. 214-FZ.

If the developer has not included a clause on the need to pay penalties for failure to meet deadlines in the agreement with the participants, this does not relieve him of responsibility for its payment. Any party to the agreement who has not received their property in finished form within the prescribed period can collect penalties.

For developers, penalties are a rather serious problem, because the construction process itself cannot be predicted down to the day. But penalties can be canceled if the construction company in advance, no later than two months before the planned completion, notifies the participants about the difficulties that have arisen and makes changes to the clause of the contract on the timing of the completion of the project.

Calculation rules

The formula for calculating the penalty is as follows:

SD × 1/300SR × DP = N,

CD – contract value,

1/300CP – one three-hundredth of the refinancing rate, which is taken on the settlement day according to the Central Bank of Russia,

DP – days overdue after the date of delivery of the object specified in the agreement,

N – the resulting amount of the penalty.

You can consider the formula using a more specific example. The DDU participant signed an agreement for 5,000,000 rubles. The developer was 30 days late in delivery. The participant of the DDU is a citizen, so the formula is multiplied by 2. The current Central Bank refinancing rate on the day of calculation is 7.25%. It's easy to calculate:

5,000,000 * 1/300 * 7.25/100 * 30 * 2 = 72,428 rubles.

Upon complete termination of the contract with the developer, 5,074,428 rubles will be paid.

Collection procedure

Participants in shared construction must defend their rights independently.

Of course, the developer himself will not voluntarily calculate the penalty and give it to the buyer. To collect penalties, each participant has two legal options:

1. Negotiable, when disagreements are resolved on a voluntary basis.
2. Judicial, if the other party refuses to pay the required penalty.

Please note that when filing a claim, we may not only be talking about the accrual of penalties. In addition, citizens can collect fines for material losses incurred due to late delivery of real estate. A striking example of the basis for charging a fine is the need to rent residential premises for living beyond the estimated period. The rental price may be recovered from an unscrupulous developer.

Most disputes of this kind are resolved exclusively in court, but this does not exclude the need to first send a claim to the construction company, offering to resolve the issue peacefully out of court.

Direction of claim

Filing a claim is a very important moment. To correctly present the facts, it is best to contact lawyers who practice this branch of jurisprudence and will be able to optimally describe situations and express requirements. Using the attached sample document, you can make a claim yourself. The following items should be included in the paper:

1. Details of the parties to the DDU - name of the construction company, full name of the participant, addresses and telephone numbers.
2. Document's name.
3. A statement of the facts of the beginning of cooperation, indicating the number of the equity participation agreement and links to its clauses.
4. References to legislative act No. 214-FZ, Article 6.
5. Calculation of the amount of the penalty.
6. If penalties are imposed, the amounts calculated are provided.
7. Issuance of demands indicating the final amount and period for resolving the issue.
8. A warning that if the requirements are not met, a lawsuit will be filed.

The claim is certified by the citizen with his own signature and the date of its preparation.

Judicial order

Based on current practice, we can say that it is quite difficult to solve problems peacefully with construction companies. Material satisfaction of a claim is the exception rather than the rule. Often, sending this document is considered only a necessary step before going to court.

The presence of a previously submitted claim when filing a statement of claim in court is a prerequisite. In addition, the claim is supported by supporting documents, the main one of which is the equity participation agreement. The statement of claim is drawn up according to the example of the claim and contains the following information:

1. The name of the court to which the claim is sent. According to the rules, you should contact the defendant’s registered address.
2. Developer and participant details.
3. A brief summary of the essence of the current situation.
4. Presentation of demands.
5. Grounds for collecting a material penalty.
6. Calculation of penalties and fines to be paid.

In addition to the claim and a package of documents, the applicant submits to the court a receipt for payment of the state fee for consideration of the case. These costs may also be included in the amount of the claim.

Arbitrage practice

At the end of 2017, the Oktyabrsky District Court of the city of Penza considered a claim filed by participants in shared construction to the developer. Two plaintiffs immediately initiated proceedings against an unscrupulous developer who was several months behind schedule in delivering the property. In the lawsuit, they set out the following demands:

1. Pay a penalty in the amount of 1/300 of the refinancing rate for each day of delay. Calculations of penalties were given.
2. Pay penalties for moral damages incurred.

Law 214-FZ protects the financial interests of shareholders through the mechanism for collecting penalties.

In addition, on January 1, 2017, innovations and changes in the legislation on shared participation in construction came into force, which directly affected both developers and shareholders.

More information about the procedure for calculating penalties for 214-FZ, adopted amendments and new rules of relations in shared construction - read on.

To file a claim, the plaintiff will need the following documents:

• Russian passport (copy of all pages).
• Concluded and signed agreement on shared participation in construction (copy).
• Agreement on the assignment of rights of claim (assignment), if there has been an assignment.
• Copies of payment documents for DDU.
• Claim requesting payment of a penalty (when sent by mail, a postal notification of receipt or information from the Russian Post website).
• Acceptance and transfer certificate of a residential property (yes, yes).
• Documents confirming additional losses and expenses.

After collecting all the documents, you will need to draw up a statement of claim in writing. It will need to indicate all the information about the plaintiff and defendant (name, location), the circumstances of the violation of requirements, evidence and the price of the claim (penalty and damages).

The court considers the case taking into account all the circumstances and the evidence provided and presents arguments in accordance with the regulations of the Russian Federation. According to Article 333 of the Civil Code of the Russian Federation A reduction in the amount of the penalty by the court is possible in cases where the required amount of the penalty is disproportionate to the consequences of violating the concluded DDU. A frequent situation is when shareholders, in accordance with this norm, receive no more than half of the declared amount. A reduction in the amount of the penalty may be considered upon the application of the defendant, which indicates the objective reasons and motives for the violations committed.

Statistics from judicial practice on the collection of penalties from developers shows that claims are satisfied both partially and completely. It all depends on the specific case and numerous subjective factors and the practice of a particular court, which it is recommended to familiarize yourself with in advance. If we are talking about large sums, then sometimes it makes sense to even change the jurisdiction of the case (for example, register at the place of residence with your parents).

Calculation of the developer's penalty under 214-FZ

Each shareholder can determine the amount of the penalty independently using a special calculator:

It is psychologically easier for the court to decide to recover from the developer an amount of 50-900 thousand rubles than 2 million rubles.

In addition, if the amount of the claim is on the border of 1 million rubles, it is recommended to reduce it to the specified limit, and in court pay attention to carefully apply Art. 333 Civil Code of the Russian Federation, because you have already voluntarily reduced the amount of the claim by N thousand rubles according to the following requirements...

Is it possible to count the penalty towards the additional payment for footage?

Art. 410 Civil Code of the Russian Federation determines the possibility of offsetting the amount of the penalty for failure to transfer the apartment to the buyer under the DDU, required from the developer, to pay off the debt of the shareholder for the extra square meters identified after the control measurements of the BTI. However, positive judicial practice on similar issues is rare.

Shareholders are advised to initially make sure whether the apartment actually has extra meters. You can do this yourself by measuring the total area. If the data obtained does not correspond to those presented by the developer, then it is better to conduct an independent technical examination. It is carried out by certified organizations and costs from 10 thousand rubles and above. The results of the examination and a properly prepared report can later be used in court.

Also, the DDU participant can try not to pay for these meters. But if the developer refuses to agree to such a settlement, the only way out can be to appeal to the judicial authorities.

After filing a claim, the developer, as a rule, is more willing to settle. Although everything, of course, depends on the specific situation and circumstances.

Taxes on compensation received for penalties under writs of execution

And in conclusion, some sad information. According to the requirements of the Tax Code of the Russian Federation ( clause 3 art. 127), moral damages are not subject to personal income tax, but fines for failure to comply with the claims procedure for satisfying consumer requirements, penalties paid to a citizen as part of claims for 214-FZ and consumer protection laws are not subject to income tax exemption. You will be responsible for both declaring and paying for these funds received.

Changes to the main regulatory act adopted in 2017 214-FZ, regulating the specifics of relations between participants in shared construction, will provide guarantees of increased security and transparency in the field of settlements under the DDU, the timing of the commissioning of objects and liability for their violations, as well as the procedure for calculating penalties (penalties). The innovations affected both payment issues (opening escrow accounts) and issues of quality and key parameters, aimed at as closely as possible compliance with the declared parameters outlined in the agreement on shared participation in construction.

The calculation of the penalty is carried out in accordance with the procedure established by paragraph 2 of Article 6 of the Federal Law of December 30, 2004 No. 214-FZ “On participation in shared construction of apartment buildings and other real estate and on amendments to certain legislative acts of the Russian Federation.

When calculating, information on the refinancing rate from the official website of the Central Bank of the Russian Federation is used. To date, the refinancing rate is 7.75% per annum (as of December 18, 2017).

Calculator

Cost of the shared construction project under the contract * rub.

Date of transfer of the shared construction object under the contract *

Individual Legal entity

We calculate according to the bet:

* - required fields Calculate

Number of days overdue: 280

Penalty: rub.

Free legal advice:

Fine: rub.

In total, the developer must pay:

According to Federal Law No. 214-FZ “On participation in shared construction” of December 30, 2004, in accordance with Part 2 of Article 6, you can request back the money invested in a real estate property under construction, and also receive a penalty in the amount of 1/150 of the key rate of the Central Bank of Russia , if the shareholder is a citizen, and 1/300 - if it is a legal entity. This clause protects the shareholder, who has the right to return the money taking into account inflation.

When and for what can you claim a penalty?

Many cases of going to court for the return of a penalty are grouped into two categories:

The DDU is terminated before the end of its validity period - in this case, the amount contributed by the shareholder under the agreement at the time of termination is paid, plus a penalty for the use of this amount. In other words, the shareholder is the creditor whose money the developer used, and he must repay the debt with interest for each day.

Free legal advice:

The DDU is terminated after the expiration of its validity period - in this case, the shareholder may demand a penalty:

for a delay of more than 2 months upon delivery of the object;

for an object not delivered on time, 2 months after the expiration of the DDU.

In addition, the shareholder may require:

recalculate the penalty on the date of the main court hearing;

Free legal advice:

a fine of 50% of the penalty;

fine for late payment of the amount established by the court - 1% for each day overdue;

compensation for moral damage;

compensation for losses (due to delay in transfer of the apartment - payment of rent for unplanned and forced rental of housing)

payment of legal costs.

Free legal advice:

Important: if the developer has fulfilled his obligations under the DDU, and the shareholder evades and does not sign the acceptance certificate or other transfer document, then the developer is exempt from paying all penalties!

Here there is evidence of dishonesty on the part of the shareholder, who deliberately delays the deadline for receiving the completed housing in order to demand a penalty. In this case, the law is on the side of the developer.

How to calculate penalties correctly?

You can make the calculation yourself using the online calculator above, which automatically determines the amount of the penalty. But let's together understand the mechanism and the difference in calculation methods in order to know how it is all calculated.

For each day of delay, according to the new edition of Part 2. Article 6 of Federal Law No. 214-FZ states that the basis is the refinancing rate of the Central Bank of the Russian Federation on the day the obligation is fulfilled. i.e. the date of delivery of the object, from the price of the DDU.

In view of numerous issues and legal disputes regarding shared construction and calculations of the penalty due to a participant in the shared construction, on December 4, 2013, the Presidium of the Supreme Court of the Russian Federation compiled a review that prescribed:

Free legal advice:

If the constructed object is transferred to the shareholder in arrears, then the period of delay begins from the day following the deadline for delivery of the object specified in the DDU and ends on the day the transfer deed is signed.

This means that if the contract states that the apartment will be delivered no later than December 31, 2016, then the delay begins on January 1, 2017. Even if the act was signed on January 1, 2017, the delay will be 1 day.

Penalty amount = (Contract amount * number of overdue days * refinancing rate in%)/150

If the shareholder is a legal entity, then we calculate 1/300.

The amount for DDU is 00 rubles.

Free legal advice:

The delay was 30 calendar days.

We substitute all known data into the formula and calculate the penalty for 1 month:

Free legal advice:

(* 30 * 8%) = rub.

The refinancing rate until 2016 was practically unchanged, equal to 8.25%.

But, with the introduction of the concept of the key rate from January 1, 2016. according to the Directive of the Central Bank of the Russian Federation No. 3894-U dated December 11, 2015, equal to 11%, which is not mentioned in Federal Law No. 214-FZ, difficulties arose in the calculations. Thus, from January 1, 2016, the refinancing rate is equal to the key rate.

The refinancing rate is the annual percentage at which the Bank of Russia issues loans to commercial banks. Rate values ​​can be viewed on the Bank of Russia website (data until 01/01/2016).

The key rate is the minimum percentage at which the Bank of Russia issues short-term (for 1 week) loans to commercial banks.

Free legal advice:

At the same time, this is the maximum percentage at which the Bank of Russia accepts deposits from commercial banks. It was introduced with the aim of regulating inflation - during crises it increases (it is more profitable to invest money in banks and receive %), during stable periods it decreases (it is more profitable to spend, invest in development, invest).

In legislative acts, calculations and accrual of fines, penalties, and penalties are still tied to the refinancing rate; from January 1, 2016, it became equal to the key rate.

Penalty amount = (Contract amount * number of overdue days * key rate in%)/150 (or /300)

In connection with regulating the level of inflation, the Central Bank of the Russian Federation has repeatedly changed the key rate (see the website of the Bank of Russia or Wikipedia).

• until December 31, 2015 inclusive, at a refinancing rate of 8.25 percent per annum.
• from 01/01/2016 until June 13, 2016, at a key rate of 11 percent per annum. Established by a decision of the Board of Directors of the Bank of Russia (Information of the Central Bank of the Russian Federation dated July 31, 2015 from the official website www.cbr.ru)
• from 06/14/2016 until September 18, 2016 at the key rate - 10.5 percent per annum. Established by a decision of the Board of Directors of the Bank of Russia (Information of the Central Bank of the Russian Federation dated June 10, 2016 from the official website www.cbr.ru)
• from 09/19/2016 until March 26, 2017 at the key rate - 10 percent per annum. Established by a decision of the Board of Directors of the Bank of Russia (Information of the Central Bank of the Russian Federation dated September 16, 2016 from the official website www.cbr.ru)
• from March 27, 2017 until 05/01/2017 at the key rate - 9.75 percent per annum. Established by a decision of the Board of Directors of the Bank of Russia (Information by the Central Bank of the Russian Federation dated March 24, 2017 from the official website www.cbr.ru)
• from 05/02/2017 to date, the key rate is 9.25 percent per annum. Established by a decision of the Board of Directors of the Bank of Russia (Information of the Central Bank of the Russian Federation dated April 28, 2017 from the official website www.cbr.ru).
• from 06/16/2017 to date, the key rate is 9 percent per annum. Established by a decision of the Board of Directors of the Bank of Russia (Information of the Central Bank of the Russian Federation dated June 14, 2017 from the official website www.cbr.ru)
• from 08/18/2017 to date, the key rate is 8.5 percent per annum. Established by a decision of the Board of Directors of the Bank of Russia (Information of the Central Bank of the Russian Federation dated August 16, 2017 from the official website www.cbr.ru)
• from 10/30/2017 to date, the key rate is 8.25 percent per annum.

When calculating penalties if the terms of the DDU fall within these periods, several principles apply. Taking one of them as a basis, you can try to get the maximum benefit.

Free legal advice:

Calculation for each rate period

Calculation on the date of signing the act of acceptance and delivery of the object

Calculation as of the date of filing the claim (if the object is not transferred)

The first calculation option is more logical, so courts, as a rule, are guided by this mechanism.

The amount for DDU is 00 rubles.

Free legal advice:

It amounted to 458 calendar days. We divide this period into several, since the rate has changed, and calculate the penalty by day using the same formula:

Penalty amount = (Contract amount * number of overdue days * rate in%)/150

Number of overdue days

Free legal advice:

Estimated amount of penalty, in rubles

When the DDU is terminated and the full amount under the contract is returned along with a penalty for the entire period of use, it turns out that the developer was given a loan at a high interest rate - on average, no less than 23% per annum!

Obviously, with a high interest rate, the final amount in the calculations will be higher.

Thus, the final amount of the penalty depends on:

number of days from the date of transfer of money to the developer until the date of termination of the contract

Free legal advice:

number of days overdue

refinancing rates (or key rate)

natural or legal person - shareholder

Part 2 of Article 6 of Federal Law No. 214-FZ dated December 30, 2004 “On participation in shared construction” mentions the thesis on the size of the refinancing rate of the Central Bank of the Russian Federation, effective on the day of fulfillment of the obligation. Those. This is the date when the developer (with delay) actually handed over, and the shareholder received his apartment.

But in legal practice, the interpretation of laws can be ambiguous. That is why we need lawyers who use all possible methods, arguments, evidence and documentation to make the most winning decision in favor of the client.

Free legal advice:

Therefore, do not rush to immediately collect the first amount you come across. Based on a specific case, taking into account terms, periods and different interest rates, it is necessary to calculate the penalty in all possible ways, compare the results obtained and decide what amount to claim.

Important: when making calculations, do not go overboard, proceed from the real state of affairs and the financial condition of the developer, and demand a reasonable amount of the penalty. In this case, the court goes towards the plaintiff.

If the settlement schemes do not fit into the framework of the provisions of Article 6 of Federal Law No. 214-FZ, the court, taking into account the objective circumstances of the developer for failure to fulfill the obligations of the DDU, can apply Article 333 of the Civil Code of the Russian Federation “Reduction of penalties by the court”, recalculate and significantly underestimate the declared amount.

Date of delivery of the apartment according to the DDU: December 31, 2015,

Date of filing the claim: 06/21/2016

Free legal advice:

If there was a delay of 230 days, the lawyers calculated the penalty by period, taking into account changes in the rate, and the amount was approximately rubles:

But the judge decided to pay the penalty, recalculating the amount at a single rate for the entire period, which reduced it.

The situation is exactly the opposite:

If there was a delay of about 7 months, the initial calculation at a rate of 11% on the day of signing the transfer deed was considered by the judge to be an excessive demand, and in this case the penalty was paid, taking as a basis the calculation at the rate for a certain calendar year:

And in this case, the amount turned out to be less than the calculated one.

Free legal advice:

Considering that there is no single legislative requirement on how to calculate the amount of the penalty, in each specific case the judge, taking into account the circumstances and arguments of the parties, makes an appropriate decision, often guided by the method of calculating by period.

The corresponding clarifications from the Supreme Court of the Russian Federation are expected. While they are not there, you can count on the maximum.

In addition to objective reasons that determine the amount of penalties, there are also subjective ones. It matters in which court the claim is filed, which construction company is the defendant, its reputation, the quantity and quality of the constructed objects.

There is a tendency to indicate penalties in the DDU - a specific amount of the penalty. This, to some extent, benefits both parties.

By the way, some law-abiding and conscientious developers are more willing to agree to out-of-court termination of the DDU and pay a penalty, because Publicity about insolvency or, conversely, about 100% payment of the maximum requested amount can lead to an avalanche of similar claims.

Free legal advice:

True, they pay less, but on time and guaranteed. Sometimes this suits the shareholder too, because the outcome of the trial is unclear and requires a certain amount of effort, time and hassle.

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Calculator for calculating penalties (penalties) for each day of delay under the DDU (Article Federal Law)

The calculator works according to the rules for calculating penalties described in Part 2 of Art. Federal Law “On participation in shared construction”

From January 1, 2016, in calculating penalties under 214-FZ, the refinancing rate of the Central Bank of the Russian Federation was equated to the key rate of the Central Bank

On January 1, 2017, a new version of Art. Federal Law comes into force, but no changes have occurred in the calculation of penalties.

Free legal advice:

If the shareholder is an individual, then in comparison with a legal entity, penalties are charged at double the rate

Please note that on the Internet you can find many calculators for penalties for DDU, which calculate incorrectly.

Their typical mistake is that they calculate the percentage for each day the house is late, rounding it to 3 decimal places, or even to 2.

For example, for the Central Bank rate of 11% the formula 2 × 11/300 they calculate how 0,073 . However, in fact, the calculation result is 0.073333(3)

Thus, there is a strong distortion of the results of penalties. For example, with the contract value rubles, the period of delay in delivery of the house from 01/02/2016 to 03/31/2016 - in some popular calculators the result of the penalty is obtained rubles. But the correct result is rubles.

Last update of the calculator algorithm 04/13/2017

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I sold my apartment at the beginning of 2017, can I get a penalty?

The deadline for delivery of the house (apartment) is the 1st quarter of 2016, i.e. 03/31/2016. The house was put into operation on 06/23/2016, according to the transfer and acceptance certificate, the apartment was transferred on 07/08/2016. However, to date the purchase and sale agreement (main) has not been concluded with me. According to the agreement, if the developer fails to fulfill its obligations under the agreement, the agreement can be terminated by me unilaterally out of court with payment to me of the cost of the apartment, including a deposit and a penalty in the amount of 1/300 of the refinancing rate (on the day of termination of the agreement). However, I don’t want to terminate the contract, because... If the above payments are returned to me, I will not be able to buy another apartment. Tell me how much of the penalty I can expect in this case and which calculator should I use. I would be sincerely grateful for your answer.

Our editors agree with you, because... At different periods of time, different monetary policies of the Central Bank were in effect, and the purpose of penalties for late payments under the DDU was also compensatory.

However, judicial practice is still harsh on this issue - on the day the lawsuit was filed in court.

Yes, you can leave it until the day you file your claim.

And also, is it worth filing a petition for settlement on the day of the hearing or can you leave the settlement in the claim, i.e. on the day of submission?

Thank you again!

The rate is 1/300 of the Central Bank rate for each day or 1.21 x the Central Bank rate for the year.

Those. as if you put all your millions for an apartment in the bank at 11.8% per annum. If you are an individual, then the rate is doubled, i.e. as if the contribution was 23.6% per annum.

Please tell me. Do I understand correctly that I should put the full cost of the apartment into debt?? Some unrealistic numbers are obtained.

Double size is cancelled.

You can file a claim at any time before delivery. The Central Bank rate on the day the claim was filed in court

Alas, you can’t directly demand a penalty. And it all depends on what is written in the contract with the housing cooperative. And it seems to be spelled out exactly as your lawyer thought.

under an agreement on shared housing construction? Apartment cost

The wording in Article 6 of Federal Law-214 is unclear. What is considered “the refinancing rate of the Central Bank of the Russian Federation, effective on the day the obligation is fulfilled”

In the comments below this question was raised; people are inclined to believe the date on which the obligation was fulfilled.

However, if you look at Article 314 of the Civil Code of the Russian Federation “Time limit for fulfillment of obligations”. There we can see the definition of the deadline for fulfilling the obligation:

"1. If the obligation provides for or makes it possible to determine the day of its fulfillment or the period during which it must be fulfilled (including if this period is calculated from the moment the obligations of the other party are fulfilled or the occurrence of other circumstances provided for by law or contract), the obligation is due to be fulfilled on that day or, accordingly, at any time within such period."

The developer sent an answer that “from September 19, 2016, the rate is 10% and that according to clause 1 of Article 56 of the Code of Civil Procedure of the Russian Federation, each party must prove the circumstances to which it refers as the basis for its claims.” He also wrote that the application will be considered after providing the correct calculation.

Thanks for clarifying

In addition, collection can be done in stages.

1st period from delay to rendering a decision/concluding a settlement agreement

Stage 2 from the moment the settlement agreement is concluded (this day is not taken into account) until the house is handed over..

I'll give you one example out of many.

The court rejects the objections of the defendant's representative that the period of delay has not occurred since the apartment was not transferred to the plaintiff, and therefore there are no legal grounds for collecting a penalty.

Earlier here in the comments, one of the lawyers wrote that it was necessary to terminate and count 1/300. Now we will know that it is possible to sue without surrendering the property.

1. If the house is not rented, then you cannot go to court. You can only calculate the approximate amount of the penalty as of the current date.

They changed it from “day of actual payment” to “day of actual execution” - they didn’t notice =) Thanks for the note.

DAY OF FULFILLMENT OF OBLIGATION - some interpret this wording as the day when an obligation must be fulfilled, i.e. the day specified in the contract. Therefore, we give users a choice of how to carry out the calculation.

However, just like you, we believe that the “day of fulfillment of the obligation” is precisely the day of the actual transfer of the object, and therefore this item is set by default in the calculator.

What does single rate mean?

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From the date of transfer under the contract.

Description of the calculator for calculating penalties under Art. Federal Law

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Penalty calculator for DDU, Art. Federal Law

Are you a real estate investor and the developer has delayed the delivery of your house?

The calculator for calculating the penalty (penalty) for each day of delay under the DDU, Art. Federal Law (current as of January 22, 2018) will help you calculate the penalty under the equity participation agreement. For both individuals and legal entities.

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Penalty calculator under 214 Federal Law

Is it possible to recover a penalty and a fine in full in a court of general jurisdiction without a reduction under Article 333 of the Civil Code of the Russian Federation?

Below, by clicking on the image, you can see such an excellent solution. According to it, the developer has already transferred funds to our client in the amount of more than rubles.

In order to recover the penalty and fine in full through SOY, the developer or his lawyers must make a procedural or other error, and the plaintiff’s representative must discover it and take advantage of it.

This is what happened in this case.

To increase the chances of collecting the penalty in full, you can use the scheme for collecting the penalty through the Arbitration Court.

Contact us, we provide consultations daily from 9 a.m. to 9 p.m. by phone: 51-06.

After changing the bet, changes are made to the DDU calculator program each time, however, out-of-date data (bet rates previously saved by your browser) may be stored in your browser’s cache, i.e. data that does not contain information about the last change in the rate.

If you don’t know how to clear the cache in your browser, ask Yandex (it’s quick and easy).

There are so many browsers now that it is quite difficult to write instructions for each of them.

If you visited the page with the calculator for the first time, you do not need to clear the cache in your browser!!

If you cannot see the DDU calculator or the calculation data is not displayed, try the following:

The panel is interactive; click the calculator to open.

2. If the calculator working window is open, but the calculation results are not available to you, you should:

Update your browser version to the latest one.

Log in from a regular computer; on some mobile devices, the calculation results are not visible on the screen.

Check if JavaScript is enabled in the browser.

How to use the DDU penalty calculator.

How to fill out the fields of the online interest calculator under Federal Law 214?

2. In the “date of transfer of the apartment under the DDU” field, indicate the date on which, according to the terms of the agreement, the developer was supposed to transfer the apartment.

3. Field “date of transfer of the apartment according to the deed”:

If the apartment transfer and acceptance certificate has been signed, then indicate the date of its signing;

If the apartment transfer deed is not signed, do not fill out this field. In this case, the calculator will make calculations for the current date.

If you are going to submit a claim, indicate in this field the day you will receive the claim by mail.

If you are going to clarify your requirements in court regarding an increase in the amount of the penalty, indicate in this field the date of the court hearing at which you will file the corresponding petition.

Algorithms for the online calculator for preschool education.

1. Calculation on the day of signing the acceptance certificate.

If you check this option, the calculator will calculate interest under Federal Law 214 at the rate that was in effect on the date you entered in the “date of transfer of the apartment under the deed” field. The rate changed three times in 2016 alone. The calculator knows in what time period and what the rates were, so there is no need to indicate them anywhere.

2. Calculation by periods of validity of the Central Bank of the Russian Federation rates.

If you check this option, the calculator will calculate for all periods in which different rates were in effect for the period of delay under the DDU. Since the Central Bank constantly reduced the key rate throughout the year, in most cases the calculation under the second option will be more profitable than under the first.

3. At the discretion of the calculator.

The calculator will choose the most profitable option. For example, if a large period of delay occurs in 2015, when the rate was minimal - 8.25 percent, the calculator will not count by period, but will calculate at the rate on the date of actual fulfillment of the obligation.

Displaying the calculation results of the penalty calculator under an equity participation agreement using an example.

Apartment price according to DDU00 rub.

According to the terms of the agreement, the apartment was to be handed over by the developer - 03/31/2016.

To date, the apartment has not been transferred under the deed. The shareholder plans to send the claim by mail on November 2, 2017.

Since the rate was constantly decreasing over the course of 17 years, the option was chosen - calculation by periods (the calculator would have calculated this at its own discretion).

Since the day on which the apartment should have been transferred is not included in the calculation of interest, the calculator calculates the penalty from the next day, i.e. from 01.04.2016

Start and end date of the Central Bank key rate;

Number of days in each period;

Bet size for each period;

Amount for each period.

The result of the online calculator's calculations will look like this:

from 01.04.2016 until June 13, 2016 rub. 00 kop. x 74 x 11% x 1/150 = rub. 33 kopecks

The calculator calculates the fine for DDU in accordance with the Consumer Rights Protection Law (CPL)

The total amount of the penalty and fine;

The total period of delay, if the “by periods” option is selected;

State duty if the price of the claim exceeds rubles.

The total period of delay under the DDU is: 581 calendar days.

Interest in aggregate for the entire period of delay: rub. 33 kopecks

Penalty under the Labor Code: rub. 17 kopecks

Penalties and fines: rub. 50 kopecks

State duty: (rub. 33 kop. 00 rub. 00 kop.) x 0.5% = rub. 04 kop.

Formula, online calculator for penalties for DDU.

The calculator calculates the penalty under an equity participation agreement using the formula established by the legislator in Federal Law No. 214-FZ: “cost of the apartment according to the DDU” x “number of days of delay” x (refinancing rate / key rate of the Central Bank / 100) x (1/150) .

If the apartment was transferred under the deed before December 31, 2015. inclusive, when calculating the penalty, the refinancing rate of 8.25% is used.

If the apartment was transferred under the deed after 01/01/2016. inclusive - the key rate of the Central Bank of the Russian Federation is used, since from 01/01/2016. The Central Bank of the Russian Federation has equated the value of the refinancing rate to the key rate, while from this date an independent value of the refinancing rate is not established.

Depending on the current economic situation in the country, the regulator revises the rate, raising the rate when inflation accelerates and lowering the rate when it decreases.

Recently, due to a decrease in inflation, the key rate has been slowly decreasing, and due to rising oil prices, this trend will continue in the near future.

In accordance with the decision of the Board of Directors of the Bank of Russia (minutes of the meeting of the Board of Directors of the Bank of Russia dated December 11, 2015 No. 37) Directive of the Central Bank of the Russian Federation No. 3894-U dated December 11, 2015. from 01/01/2016 the value of the refinancing rate is equal to the value of the key rate determined on the corresponding date, and from 01/01/2016. The Bank of Russia does not establish an independent value for the refinancing rate.

Established by a decision of the Board of Directors of the Bank of Russia (Information of the Central Bank of the Russian Federation dated July 31, 2015 from the official website www.cbr.ru)

Established by a decision of the Board of Directors of the Bank of Russia (Information of the Central Bank of the Russian Federation dated June 10, 2016 from the official website www.cbr.ru)

Established by a decision of the Board of Directors of the Bank of Russia (Information of the Central Bank of the Russian Federation dated September 16, 2016 from the official website www.cbr.ru)

Established by a decision of the Board of Directors of the Bank of Russia (Information by the Central Bank of the Russian Federation dated March 24, 2017 from the official website www.cbr.ru)

Established by a decision of the Board of Directors of the Bank of Russia (Information of the Central Bank of the Russian Federation dated April 28, 2017 from the official website www.cbr.ru).

Established by a decision of the Board of Directors of the Bank of Russia (Information of the Central Bank of the Russian Federation dated June 16, 2017 from the official website www.cbr.ru).

Established by a decision of the Board of Directors of the Bank of Russia (Information of the Central Bank of the Russian Federation dated September 15, 2017 from the official website www.cbr.ru).

Established by a decision of the Board of Directors of the Bank of Russia (Information of the Central Bank of the Russian Federation dated October 27, 2017 from the official website www.cbr.ru).

Established by a decision of the Board of Directors of the Bank of Russia (Information of the Central Bank of the Russian Federation dated December 15, 2017 from the official website www.cbr.ru).

We work honestly! You pay for legal representation upon the fact that the developer transfers money to your bank account.

If you want to know more, click on the yellow button.

In the article, calculating penalties for DDU, we will learn more about the legal side of the issue of determining the periods and deadlines for which the calculator calculates.

From an economic point of view, this is much more profitable than collecting a penalty under Part 2 of Art. 6 FZ-214, because upon termination of the contract, interest under Part 2 of Art. 9 Federal Law-214 are accrued from the date of payment of the contract price, while the penalty under the PZPP applies not only to interest, but also to the contract price.

In such cases, we file bankruptcy applications for the developer with the Arbitration Court (they have their own arbitration managers) and put the developer before a choice - to pay or a monitoring procedure will be introduced.

In such cases, developers pay debts from the accounts of third legal entities controlled by the developer.

What are the features of termination of a share participation agreement at the initiative of the shareholder?

Is it necessary to enter into an agreement to terminate the DDU?

What risks may arise?

What can be collected from the developer besides the contract price?

Do I need to submit any documents to Rosreestr before filing a claim in court?

This is discussed in more detail in the article Termination of Disciplinary Duty.

Judicial practice on the collection of penalties in the form of questions and answers from a lawyer.

Issues of practical importance for the plaintiff are discussed.

For example, which courts are good and which ones are bad at awarding penalties?

Many procedural issues are also touched upon, for example, how to withdraw a statement of claim if the plaintiff decides to re-file the claim in another court?

Is it possible to sell the rights to penalties and fines to a legal entity?

Can an LLC or individual entrepreneur collect a fine?

Will the arbitration court reduce the fine under Article 333 of the Civil Code of the Russian Federation?

What money received under a writ of execution is taxed at a rate of 13%?

What, other than a penalty, can be demanded from the developer in court and what are the prospects?

In what cases do the courts satisfy the plaintiff’s claims for damages?

From what date is the beginning of the limitation period calculated?

The penalty for failure to comply with the deadlines for making payments by the participant in the shared participation agreement (hereinafter referred to as the DPA) is calculated as the product of a coefficient equal to 1/300 of the refinancing rate and the amount of the overdue payment (Clause 6, Article 5 of the Law “On Participation in Shared-Shared Construction...” dated 12/30/2004 No. 214-FZ, hereinafter referred to as Law No. 214) for each day of delay.

IMPORTANT! Although the text of the official document still indicates the refinancing rate as the basis for calculation, from 01/01/2016 the key rate of the Central Bank of the Russian Federation must be used to calculate the penalty in the relevant periods (see Decree of the Government of the Russian Federation dated 12/08/2015 No. 1340). For example, from March 27, 2017 it is equal to 9.75% (see information from the Bank of Russia dated March 24, 2017).

The duration of the period of delay is calculated from the day following the last day on which the obligation should have been fulfilled. The calculation also includes the day when the obligation was actually fulfilled (paragraph 4, clause 65 of the Resolution of the RF PVS of March 24, 2016 No. 7, hereinafter referred to as PPVS No. 7).

Let's consider the calculation option using a specific example. Initial data:

• payment amount - 300,000 rubles;
• date of payment according to the schedule - 03/01/2017;
• the date of actual payment is March 30, 2017.

Calculation:

• On the day of fulfillment of the obligation, the key rate of the Central Bank of the Russian Federation was equal to 9.75%. It is important to take into account the size of the rate at the time of fulfillment of the obligation, and not the current one (see the decision of the Oktyabrsky District Court dated January 13, 2016 in case No. 2-490/2016).
• Sum penalties for DDU for the period from 03/02/2017 to 03/30/2017 is equal to: 29 (days) × 1/300 × 9.75% × 300,000 rubles. = 2,827.5 rub.

Calculation of penalties according to the DDU for the developer in case of violation of the deadline for delivery of the project

A penalty in favor of a DDU participant may be recovered from the developer for violating the terms established by the contract for the transfer of a shared construction project to such a DDU participant. The amount of the penalty is calculated as the product of a coefficient equal to 1/300 of the refinancing rate (in this case, from 01/01/2016, the key rate of the Central Bank of the Russian Federation is also applied), the number of days of delay (the procedure for accounting for them is similar to that specified in the previous block of our article) and the contract price (p 2 Article 6 of Law No. 214).

If a participant in the DDU is an individual, then the penalty calculated according to the given algorithm should be increased by 2 times.

Let's give an example of a calculation. Initial data:

• price of DDU - 3 million rubles;
• the deadline for delivery of the DDU facility under the contract is 03/01/2017;
• the actual deadline for fulfilling the obligation is March 28, 2017;
• the participant of the DDU is a citizen.

Calculation:

• the delay occurs in the period after 01/01/2016, accordingly, the key rate of the Central Bank should be used in calculations;
• at the time of fulfillment of the obligation, the key rate is 9.75%;
• since the participant in the DDU is an individual, a coefficient of 1/150 is used;
• sum penalties for DDU for the period of delay from 03/01/2017 to 08/28/2017 is equal to: 27 (days) × 1/150 × 9.75% × 3,000,000 rubles. = 52,650 rub.

Collection of penalties from the developer for equity participation: main features

In addition to the penalty discussed above for violating the deadlines for the transfer of finished housing, a citizen shareholder may recover from the developer:

• a penalty for violating the deadlines for eliminating defects in the amount of 1% of the price of the residential premises for each day of delay (clause 1 of Article 23 of the Law of the Russian Federation “On the Protection of Consumer Rights” dated 02/07/1992 No. 2300-I, (hereinafter referred to as the Law of the Russian Federation);
• if the indicated defects do not lead to the recognition of such premises as unfit for habitation, then the calculation of 1% is made only from the cost of eliminating the defect (Part 8, Article 7 of Law No. 214);
• penalty for violation of deadlines for satisfying certain requirements of the shareholder - 1% of the cost of the residential premises (clause 8 of the Review of judicial practice of the Armed Forces of the Russian Federation dated July 19, 2017 (hereinafter referred to as the Review);
• interest for violation of deadlines for the return of funds upon termination of the DDU agreement - double the amount of interest calculated as 1/300 of the key rate of the Bank of Russia for each day of delay (Part 6, Article 9 of Law No. 214).

It is important to keep in mind that:

• the shareholder's losses caused by the developer's failure to comply with its obligations are subject to compensation in full in excess of the amount provided for in the penalty agreement (Clause 2, Article 13 of the PZPP).
• in the event of the transfer of the rights of the shareholder to a new creditor, the developer’s liability is calculated from the moment he violates his obligations to the previous one (clause 13 of the Review);
• if the shareholder's claims are satisfied in court in his favor, the court is obliged to collect a fine in the amount of half the amount of the shareholder's claims satisfied by the court (clause 46 of the resolution of the Plenum of the Armed Forces of the Russian Federation dated June 28, 2012 No. 17).
• the amount of the penalty may be reduced taking into account the rules of Art. 333 of the Civil Code of the Russian Federation (clause 9 of the Review), but this rule does not apply to a penalty awarded for the future (determination of the Supreme Court of the Russian Federation dated September 11, 2018 No. 11-КГ18-21).

How to calculate and collect a penalty from the developer for violating the deadline for fulfilling warranty obligations

If the developer violates the deadline agreed with the participant of the DDU - an individual - for eliminating the defects of the DDU object identified during the warranty period, a penalty in the amount of 1% of the contract price may be collected from the first one.

If the identified defect in the premises is such that the premises cannot be considered unfit for habitation, then the amount of the penalty is determined as 1% of the cost of the costs required for repairs for each day of delay (Clause 8, Article 7 of Law No. 214).

Proper evidence of the presence of shortcomings (defects) of the DDU object and the cost of repair work are, for example, the opinions of professional appraisers or experts (see the decision of the Cherepovets City Court dated 01.02.2017 in case No. 2-911/2017).

Example of penalty calculation:

• 01/16/2018 - the date of identification of a deficiency that is not a basis for declaring the property unsuitable for habitation by the shareholder;
• 01/27/2018 is the end date of the period for eliminating this deficiency by the developer;
• 02/17/2018 - date of actual elimination of the deficiency by the developer;
• 30,000 rub. — actual cost of repair work.

As a result, the amount of the penalty for collection will be equal to: 30,000 × 1% × 21 (day) = 6,300 rubles.

Collection of such a penalty is carried out in the general manner and taking into account the same features that are described in the previous block of our article.

Penalty calculator according to Law No. 214-FZ

Calculation of penalties according to DDU convenient to produce also using a special penalty calculator under 214-FZ online.

Penalty calculator for DDU can always be found on the Internet in the public domain, but the main disadvantage of such a calculation tool is often the irrelevance of the calculation formulas. For example, calculation of penalties according to 214-FZ calculator produces based on the refinancing rate instead of the key rate or rounds too roughly (up to 2-3 digits), etc.

So, according to DDU penalty may be charged:

• from the shareholder - for violating the deadlines for making payments under the DDU;
• the developer - for violating the terms of commissioning of the facility or failure to comply with the deadline for fulfilling warranty obligations under the contract.

The procedure for calculating penalties is described in detail in the relevant provisions of Law No. 214. At the same time Calculation of penalties under an equity participation agreement using a calculator, specifically designed for such online calculations, can be used to monitor the results obtained.

Our free online calculator will help you calculate the penalty for violating the deadline for transferring an apartment under an agreement for participation in shared construction. Enter the price of the contract, the date of transfer of the apartment under the contract, the date of actual transfer of the apartment and indicate who you are - a citizen or a legal entity. The calculation result can be saved in PDF format and printed.

How does the calculator work?

• The calculator can only be used to calculate penalties under the Federal Law on participation in shared construction. It is not suitable for apartments built not according to the DDU (for example, through participation in a housing cooperative).
• The calculator is suitable for both ordinary citizens and legal entities. Just select the desired item when calculating - citizen or legal entity. The calculator will select the required formula.
• The calculator takes into account changes in the refinancing rate and will select the right one depending on the period of actual transfer of the apartment.
• For the correct calculation, look in the DDU specifically date of transfer of the apartment according to the deed, It is incorrect to enter the date of delivery of the house, completion of construction, commissioning.
• Even if you pay the cost of the apartment in parts / in installments, you need to enter the full price of the property.
• When purchasing an apartment via assignment, you must indicate the price of the property from the original DDU. About other nuances when calculating the penalty in case of assignment:
• Please note that the calculator first calculates the amount of the penalty for 1 day of delay and rounds the result to the nearest kopeck. The rounded result is multiplied by the number of days overdue.
• Useful nuances on judicial practice on the collection of penalties under 214-FZ can be found in our article: