The bill on equity participation in construction. Equity construction: a matter of survival. What to look for when signing a contract

A record number of residential complexes are preparing to enter the Moscow market of new buildings in the first half of 2018

Photo: ITAR-TASS / Interpress / Tatyana Timirkhanova

Developers are trying to put on sale as many residential complexes as possible before the new requirements for housing developers come into force, said developers and realtors interviewed by the editors of RBC-Nedvizhimost. According to their forecasts, the largest volume of new buildings this year will enter the Moscow market before July 1.

The total volume of projects that will go on sale in 2018 will be approximately 1.5 times more than in the past, Pavel Bryzgalov, director of strategic development at FGC Leader, predicts. If we rely on the experience of past years, then, most likely, the peak of bringing new objects to the market will be in March-April, says Natalya Shatalina, general director of Miel-Novostroyki. In general, according to her assessment, an increase in the volume of supply at the end of the year should occur in all segments.

“Up to 75% of the annual volume (about 1.5 million square meters in Moscow) can enter the market in the first six months of this year. Accordingly, the remaining share will be released to the market in the second half of the year,” says Urban Group Marketing Director Tatyana Kalyuzhnova.

Earlier, the experts of "Metrium Group" "RBC-Nedvizhimost" that Moscow developers are now developing about 140 new projects. “In the first half of 2018, at least about 30 objects are expected to go on sale, and given the possible acceleration of the launch of new residential complexes, their number may reach 40-50,” said Maria Litinetskaya, managing partner of Metrium Group, a member of the CBRE partner network . For comparison: in 2017, 80 new complexes began to be sold on the capital's market of new buildings, while in 2016 their number reached 71, and in 2015 - 66.

In the second half of 2018, there will certainly be a significant decline in development activity due to radical changes in the rules of the game in the new building market, Litinetskaya believes. “Not all developers will be able to adapt to the new business conditions due to increased costs. The start of some projects will have to be postponed to a later date, ”she predicts.

What motivates developers

Developers, if the stage of the project allows, try not to miss the opportunity to undergo an examination and obtain a building permit before July 1, 2018, Pavel Bryzgalov notes. Many developers want to attract the largest amount of funds from equity holders under DDU agreements before switching to a new construction financing scheme, adds Yury Ilyin, Managing Director of LSR Group. “For developers, the old rules of the game are clearer. In addition, the new amendments to 214-FZ, which will come into force on July 1, will change the financial model of the project,” explains Pavel Bryzgalov.

At the same time, Tatyana Kalyuzhnova does not yet see a trend towards an accelerated withdrawal of new projects, as today developers are cautious about increasing supply on the market amid a situation close to overstocking. At the same time, she does not rule out that the new requirements, which will come into force on July 1, may affect the speed of putting hulls on sale.

How will the requirements for developers change?

From July 1, 2018, new requirements for housing developers in Russia come into force. Almost all of them relate to the financial side of the business. Developer at least 10% of the funds from the cost of construction of a residential complex by the time the project declaration is approved. In addition, the amount of own finance allocated to construction should not be less than 10% of the investment. Administrative expenses cannot exceed 10% of the project cost of construction, and the total amount of advance payments cannot exceed 30%. The developer's non-construction obligations are limited to 1% of the total investment.

The developer loses the right to attract any loans other than the target loan for the project. All construction financing should go through a single current account, which can only be opened in a bank authorized by the authorities. In addition, the developer cannot issue shares and bonds, secure the obligations of third parties with its property, or create commercial and non-commercial organizations.

They also limited the ability to raise funds simultaneously for several building permits. Simply put, the principle of "one developer - one building permit" is being introduced. Accordingly, for large projects involving several stages of construction, permits and design documentation will have to be approved before the start of implementation, and this will entail an increase in costs.

“These novelties will ultimately provoke a noticeable increase in the cost of construction, which in the future will either lead to higher prices or lower profitability of the development business. Given the current situation on the market, where there is an oversupply, some developers will be forced to curtail their activities or seriously revise their parameters,” Maria Litinetskaya believes.

How will the prices of new buildings change?

Experts interviewed by the editors do not expect significant new buildings in Moscow and the region this year. According to Pavel Bryzgalov, a large commissioning of objects on the market in the first half of the year is unlikely to have a significant impact on prices, since passing an examination and obtaining a building permit does not mean that the project will be put on sale. In addition, due to the withdrawal of a large number of new projects in the first half of the year, we will see some decline in the second, he adds.

At the same time, Maria Litinetskaya believes that an increase in supply, especially its spasmodic nature, will deal a heavy blow to the weak positive price dynamics that emerged in certain segments in 2016-2018. Most likely, due to the increase in supply, prices will decrease in the first half of the year, as developers will try to intercept customers from competitors at the expense of attractive rates, the expert predicts.

In general, Natalya Shatalina also expects a slight upward trend in 2018. “As for those residential complexes that will still enter the market in the second half of the year, due to the increased cost, prices may increase in them, but developers will most likely try to prevent this. I believe that large developers will be able to keep prices at an attractive level and at the same time will not deviate from fulfilling the requirements of 214-FZ,” Maria Litinetskaya sums up.

Not everyone can afford to buy an apartment in a building that has already been built and put into operation. Therefore, many are forced to conclude contracts for equity participation in housing construction - this way you can get the coveted square meters for more or less acceptable money. But until recently, it was possible to get nothing if the developer went bankrupt, disappeared, or did not have enough money to complete the construction. In this article, we will tell you what attempts to protect equity holders have been made by the state this year and what you should pay attention to if you are also planning to purchase housing using the "participation".

What to look for when signing a contract

Law 214-FZ on shared construction - its full name "On participation in shared construction of apartment buildings and other real estate" - was adopted back in 2004. Since that moment, more than a dozen amendments have been made to it, so now we can safely say that this is already a new law on shared construction-2017. To date, participation in the "participation" is the most reliable way to purchase housing in the primary market.

Firstly, according to this law, the developer has the right to attract funds from citizens only if there is a permit for the construction of an apartment building and executed documents for the land plot.

Secondly, the law on equity participation in construction provides for mandatory state registration of an agreement for a "share share", and money for new housing is paid only after such registration with Rosreestr. This protects the shareholder from the risk of a double sale, i.e. the developer will no longer be able to sell the same apartment to several buyers.

How to check the reliability of the developer

Starting from August 2020, the amount of own funds of the developer company must be at least 10% of the planned cost of the project throughout the entire period of shared construction. And the construction company itself must have experience in the construction of apartment buildings for at least three years.

The law also introduces mandatory banking support for the developer's activities. He must have one account with an authorized bank, through which all calculations for the conduct of shared construction will be carried out, and the minimum balance of funds in such an account must be at least 10% of the project cost of the facility.

The head or chief accountant of a construction company cannot be a person who has an unexpunged or outstanding conviction for economic crimes, as well as a person who was recognized as the reason for the bankruptcy of the organization.

The information portal "Unified Register of Developers" posted a publication on its website that lists the provisions of 214-FZ1 adopted by the legislator, other federal laws regarding shared construction, which did not enter into force as of the date of publication of the publication, as well as the provisions of the bill No. 322981-7, aimed at fulfilling the instructions of the President of the Russian Federation Vladimir Putin dated November 5, 2017 to reform the housing construction financing system.

I. PROVISIONS 304-FZ

Topic 1. Method of sending the project declaration to the regulatory authority
The essence of the norm:
The developer is obliged to send the project declaration to the regulatory authority by filling out the electronic form of the project declaration on the website determined by the Ministry of Construction of Russia (part 2 of article 19 214-FZ).
Changes to the project declaration are sent by the developer to the regulatory authority by filling out the electronic form of the project declaration with the changes made on the website determined by the Ministry of Construction of Russia (part 6 of article 19 214-FZ).
Effective date: defined by part 5 of article 6 304-FZ. It comes into force from the date of ensuring the technical possibility of filling out the electronic form of the project declaration on the website determined by the Ministry of Construction of Russia.
A comment
The developer's obligation to use the electronic form of the project declaration to send it to the regulatory authority arises after two conditions are met in aggregate:
1) The Ministry of Construction of Russia must issue a regulatory legal act defining the site on which the developer is required to fill out an electronic form of the project declaration for its submission to the regulatory authority (part 2 of article 19 214-FZ);
2) The Ministry of Construction of Russia or the owner of the relevant website must notify the developers and regulatory authorities of the date of the technical possibility of sending the project declaration to the regulatory authority by filling out an electronic form (part 5 of article 6 304-FZ).
It should be noted that the technical capability should ensure the development of three scenarios:
1) primary direction of the project declaration;
2) sending changes to the project declaration, initially filled out in the form established by the order of the Ministry of Construction of Russia dated December 20, 2016 No. 996 / pr “On approval of the design declaration form”;
3) sending changes to the project declaration, initially filled in in any form, i.e. completed and published before the requirements for the form of the project declaration are established.
Consequences of non-compliance
Project declarations submitted to the supervisory authority in paper form after it becomes technically possible to send the project declaration to the supervisory authority by filling out an electronic form will not be considered as submitted to the supervisory authority. According to such project declarations, the supervisory authority will not issue an opinion.

Topic 2. Requirements for persons involved in the management of the developer
The essence of the norm:
The head, chief accountant, candidates for these positions, beneficiaries cannot:
have certain types of criminal record (paragraph 1 of part 3 of article 3.2 of 214-FZ);
have an unexpired term of administrative punishment in the form of disqualification (clause 2 of part 3 of article 3.2 of 214-FZ);
be earlier (less than three years ago) brought to subsidiary liability for the obligations of a legal entity (clause 3 of part 3 of article 3.2 of 214-FZ);
perform earlier (less than three years ago) the functions of the sole executive body of a legal entity declared insolvent (bankrupt) (paragraph 4 of part 3 of article 3.2 of 214-FZ);
be previously (less than three years ago) the beneficiary of a legal entity declared insolvent (bankrupt) (paragraph 5 of part 3 of article 3.2 of 214-FZ).
Effective date

A comment
The developer is obliged to notify the supervisory authority about the compliance of the beneficiaries of the developer with the requirements for them when sending the project declaration (part 2 of article 19 214-FZ).
The developer is obliged to indicate the compliance of the head of the developer, the chief accountant and beneficiaries with the requirements for them in the project declaration if the project declaration is filled out in relation to the object, the construction permit for which was issued on July 1, 2018 and later (clause 8 of part 2 of article 3, clause 7 of part 1 article 20 214-FZ, part 3 article 25 218-FZ).

In accordance with paragraph 8 of part 2 of article 3 of 214-FZ, the non-compliance of the specified persons of the developer with the requirements for them means that the developer does not have the right to raise funds from equity holders. However, this provision, in accordance with part 3 of article 25 of 218-FZ, does not apply if a building permit was received before July 1, 2018.
Topic 3. The obligation of the developer to notify the supervisory authority of changes in the composition of persons involved in the management of the developer's activities
The essence of the norm:
The developer is obliged to notify the supervisory authority no later than 3 working days (part 2 of article 3.2 of 214-FZ):
on the termination of powers of the head of the developer;
on the election (appointment) of a new head of the developer;
on the formation of a temporary sole executive body.
Simultaneously with the notification, the developer is obliged to submit to the regulatory authority information on the compliance of these persons with the requirements of Part 3 of Article 3.2 of 214-FZ.
Effective date: defined by part 4 of article 25 218-FZ.

Consequences of non-compliance
Not installed.
Part 3 of Article 14.28 of the Code of Administrative Offenses provides for the administrative responsibility of the developer for the developer's failure to submit reports to the supervisory authority. Notifications are not a type of reporting.

Topic 4. Obligation of developers to post information in the Unified Information System for Housing Construction
The essence of the norm:
Developers are required to post in the UIIHS the same information that they are required to post on their official website (part 4 of article 23.3 214-FZ):
an audit report for the last year of the developer's business activities (clause 2 of part 2 of article 3.1 of 214-FZ);
permits for the commissioning of capital construction facilities issued to the developer in relation to capital construction facilities in the construction of which the developer took part during the three years preceding the publication of the project declaration (paragraph 1 of part 2 of article 3.1 of 214-FZ);
information on apartment buildings and (or) other real estate objects, the construction (creation) of which is carried out by the developer with the involvement of funds from participants in shared construction:
1) building permit (paragraph 2 of part 2 of article 3.1 of 214-FZ);
2) the conclusion of the examination of project documentation, if such an examination is established by federal law (paragraph 2 of part 2 of article 3.1 of 214-FZ);
3) documents confirming the rights of the developer to the land plot (clause 2 of part 2 of article 3.1 of 214-FZ);
4) project declaration (clause 3 of part 2 of article 3.1 of 214-FZ);
5) the conclusion of the regulatory body on the compliance of the developer and the project declaration with the requirements established by part 2 of article 3, articles 20 and 21 of 214-FZ (clause 4 of part 2 of article 3.1 of 214-FZ);
6) information on the payment by the developer of mandatory deductions (contributions) to the compensation fund, if such deductions were made (paragraph 6 of part 2 of article 3.1 of 214-FZ);
7) information on the conditions for raising funds from participants in shared construction under an agreement on participation in shared construction in accordance with the requirements of Articles 15.4 and 15.5 of Federal Law N 214-FZ, if the developer has chosen the method of raising funds from participants in shared construction - an escrow account (paragraph 6 of part 2 articles 3.1 214-FZ);
8) drafts (draft) of agreements for participation in shared construction used by the developer to attract funds from participants in shared construction for the construction (creation) of an apartment building and (or) other real estate objects (clause 5 of part 2 of article 3.1 of 214-FZ);
9) guarantee agreements with the developer concluded by the developer in accordance with Article 15.3 of Federal Law N 214-FZ, if such agreements are concluded (clause 7 of part 2 of article 3.1 of 214-FZ);
10) photographs of an apartment building and (or) other real estate object under construction (created) by the developer with the involvement of funds from participants in the shared construction of an apartment building and (or) other real estate, reflecting the current state of their construction (creation) (paragraph 8 of part 2 of article 3.1 214-FZ).
Effective date
A comment
The procedure, composition, methods, timing and frequency of posting information by developers in the unified information system for housing construction is determined by the Ministry of Construction of Russia (clause 3.3 of part 3 of article 23 214-FZ).
Consequences of non-compliance
For failure to fulfill this obligation, the developer may be held administratively liable:
under article 14.8 of the Code of Administrative Offenses for violation of the consumer's right to receive the necessary and reliable information about the goods (work, service) being sold, about the manufacturer, about the seller, about the contractor and about their mode of operation;
under article 14.28 of the Code of Administrative Offenses for the provision by the developer of incomplete and (or) inaccurate information, the publication, placement or provision of which is provided for by the legislation on participation in the shared construction of apartment buildings and (or) other real estate, as well as violation of the terms of publication and (or) placement of the project declaration or changes to it.

Topic 5. Obligation of regulatory authorities to post information in UIIHS
The essence of the norm:
Supervisory authorities are required to post in the UIIHS information about (part 5 of article 23.3 214-FZ):
persons of the controlling body authorized to exercise control;
issued conclusions on compliance, or a reasoned refusal to issue such conclusions;
conducted inspections of the developer's activities;
instructions to the builder;
resolutions that have entered into force on bringing the developer and its officials to administrative responsibility.
Effective date: defined by part 6 of article 25 218-FZ.
Consequences of non-compliance
Not installed
Topic 6. Bankruptcy of the developer(changes made to 127-FZ)
The essence of the rules:
additional requirements for bankruptcy trustees (parts 2.1-2.3, 2.5 of article 201.1 127-FZ);
the obligation of the developer to inform shareholders in writing about bankruptcy when (part 7 of article 201.1 127-FZ):
1) the conclusion of the DDU;
2) acceptance of funds under previously concluded DDU;
inclusion in the register of creditors' claims is carried out by the bankruptcy trustee (until 01/01/2018 - the Arbitration Court) (Article 201.4 127-FZ);
prohibition on termination by the landlord of the land lease agreement with the developer (Part 1 of Article 201.3 127-FZ);
priority to the equity holder under 214-FZ, if there are claims of several equity holders in respect of one residential building (part 8.1 of article 201.11 of 127-FZ);
the possibility of holding a meeting of shareholders in the form of absentee voting - if there are more than 500 of them (Article 201.12 127-FZ);
a ban on the inclusion of legal entities in the register of requirements for the transfer of residential premises (part 1 of article 201.12-1 127-FZ);
prohibition of the use of procedures "observation", "financial recovery" (part 2.7 of article 201.1 127-FZ);
regulation of the Fund's issues:
1) the Fund that made the payment is transferred the right to claim under the DDU (part 6 of article 201.12-1 127-FZ);
2) challenging by the Fund of transactions of the developer who made contributions to the Fund (part 3.1 of Article 201.1 of 127-FZ);
3) the possibility of the Fund initiating the bankruptcy procedure of the developer who made contributions to the Fund (part 2.6 of article 201.1 127-FZ).
issues of repaying the claims of equity holders by transferring the rights of the developer to the object of construction in progress and the land plot to the created housing cooperative (part 3 of article 201.12-1 127-FZ).
Effective date: defined by part 2 of article 25 218-FZ. In accordance with Part 13 of Article 25 of 218-FZ, the new provisions of 127-FZ apply to developer bankruptcy cases initiated after January 1, 2018

Topic 7. Additional features of the concept of "developer"
The essence of the norm:
Additional features of the concept of "developer" are introduced, including requirements for the experience of carrying out activities in the construction of apartment buildings, the name of the organization, and the legal form (clause 1 of article 2 of 214-FZ).

Effective date: defined by part 3 of article 25 218-FZ.
Consequences of non-compliance
Not installed.
The law does not contain provisions stating that in case of violation of these requirements, the supervisory authority refuses to issue a conclusion on compliance to the developer (part 2.2 of Article 19 214-FZ), or that the developer who violates these requirements does not have the right to raise funds from participants in shared construction ( article 3 214-FZ). At the same time, according to the first paragraph of part 2 of article 3 214-FZ, the developer has the right to raise funds from participants in shared construction for the construction (creation) of an apartment building on the basis of an agreement on participation in shared construction. An organization that does not meet these requirements is not a developer. Based on the totality of the norms, it can be concluded that an organization that does not meet the specified requirements is not entitled to raise funds from participants in shared construction.
Topic 8. Additional requirements that developers must fulfill in order to acquire the right to raise funds from participants in shared construction
The essence of the rules:
Requirements are set:
one developer - one building permit (part 1.1 of article 3 of 214-FZ);
the presence of a positive conclusion of the examination of project documentation (paragraph 1 of part 2 of article 3 214-FZ);
to the amount of own funds instead of the requirements for the authorized capital (clause 1.1 of part 2 of article 3 214-FZ);
to the minimum amount of funds on the current account (clause 1.2 of part 2 of article 3 214-FZ);
to the maximum amount of the developer's obligations not related to the construction permit (clause 1.5 of part 2 of article 3 214-FZ).
Prohibitions are introduced:
for the presence of tax arrears in any amount (clause 7 of part 2 of article 3 214-FZ);
for the presence of obligations on loans, loans, loans, with the exception of targeted loans for construction (clause 1.3 of part 2 of article 3 214-FZ);
for the issue of bonds and other securities, except for shares (clause 1.4 of part 2 of article 3 214-FZ);
for the presence of obligations to ensure the fulfillment of obligations of third parties, as well as their own obligations not related to construction (clauses 1.6, 1.7 of part 2 of article 3 214-FZ)
The scope of the requirements is expanding in case of attracting funds from participants in shared construction - legal entities.

A comment
The requirement to have in all cases a positive conclusion of the examination of project documentation conflicts with the norms of part 2 of article 49 of the Town Planning Code, which determine cases when an examination of project documentation is not carried out. Clarification is awaited on this matter.

Consequences of non-compliance
Failure to comply with these requirements is the basis for refusing to issue the conclusion of the regulatory authority (part 2.2 of article 19 214-FZ), with the exception of the requirement "one developer - one building permit". Violation of this requirement is not among the grounds for refusing to issue a conclusion of the supervisory authority.
Developers that do not meet any of these requirements are not entitled to raise funds from citizens participating in shared construction for the construction (creation) of apartment buildings (parts 1.1 and 2.2 of Article 3 214-FZ).
The establishment by the supervisory authority of the fact that the developer does not comply with the specified requirements, with the exception of the requirement “one developer - one construction permit”, entails the obligation of the supervisory authority to send a notification to Rosreestr that the developer does not have the right to raise funds from citizens participating in shared construction (part 2.5 of article 3 214- FZ). Upon receipt of the notification, Rosreestr is obliged to suspend the registration of the DDU (paragraph 55 of part 1 of article 26 of the Federal Law of July 13, 2015 No. 218-FZ “On state registration of real estate”) and notify all participants in shared construction that the developer is deprived of the right to raise funds from citizens ( Part 7 of Article 48 of the Federal Law of July 13, 2015 No. 218-FZ “On State Registration of Real Estate”).
For the illegal attraction of funds from citizens in violation of the legislation on shared construction, criminal liability is provided in accordance with Article 200.3 of the Criminal Code of the Russian Federation.
Topic 9. Changes in the area of ​​targeted use of equity holders' funds
The essence of the rules:
Limits are set:
administrative expenses8 of the developer (clause 20 of part 1 of article 18 214-FZ);
advance payments (part 4 of article 18 214-FZ);
There is a ban on:
implementation of other types of activities (part 6 of article 18 214-FZ);
attracting credits, loans, loans, except for targeted loans for construction (paragraph 1 of part 7 of article 18 214-FZ);
issue of securities, except for shares (clause 4 of part 7 of article 18 214-FZ);
purchase of securities (clause 6 of part 7 of article 18 214-FZ);
making transactions not related to construction (clause 8 of part 7 of article 18 214-FZ);
creation of legal entities, participation in the authorized capital of business entities (clause 7 of part 7 of article 18 214-FZ);
participation in the property of commercial and non-profit organizations (clause 7 of part 7 of article 18 214-FZ).

Spending funds of equity holders:
it is prohibited to reimburse costs for (part 1 of article 18 214-FZ):

2) design;
3) engineering surveys;
4) expertise;
allowed for:
1) payment for the services of an authorized bank (clause 13 of part 1 of article 18 214-FZ);
2) payment of taxes, including fines, penalties, administrative fines (clause 14 of part 1 of article 18 214-FZ);
3) payment of mandatory deductions (contributions) to the compensation fund (clause 15 of part 1 of article 18 214-FZ);
4) return to the participant in shared construction of funds, interest on this amount (clause 16 of part 1 of article 18 214-FZ);
5) wages (clause 17 of part 1 of article 18 214-FZ);
6) payment for the services of an organization that performs the functions of the executive body of the developer (clause 18 of part 1 of article 18 214-FZ);
7) cash payments related to the provision of guarantees and compensations to employees (clause 19 of part 1 of article 18 214-FZ);
8) payment of administrative expenses (clause 20 of part 1 of article 18 214-FZ).
The boiler principle of using funds from equity holders in the construction of several facilities is permitted only within the framework of one construction permit instead of the boundaries of an element of the planning structure of a quarter, microdistrict (paragraph 1 of part 1 of article 18 214-FZ).

Consequences of non-compliance
Special administrative and (or) criminal liability for violation of the norms on the targeted use of equity holders' funds has not been established.
Transactions made in violation of the requirement for the intended use of equity holders' funds may be declared invalid on claims (Part 9 of Article 18 214-FZ):
1) developer;
2) the founders of the developer;
3) creditors of the developer;
4) the controlling body;
5) a fund for the protection of equity holders.
Introduced bank control. Upon detection of non-targeted payments, the authorized bank informs the supervisory authority and the Fund for the Protection of Shareholders (Part 3 of Article 18.2 of 214-FZ) about this.
Topic 10. Banking support
The essence of the rules:
The concept of "authorized bank" is introduced - a bank that meets the criteria established by the Government of the Russian Federation. The Bank of Russia publishes a list of authorized banks on a monthly basis on its official website on the Internet information and telecommunication network (Item 3 of Article 2 214-FZ).
The accounts of the developer, technical customer and general contractor must be opened in one authorized bank (part 2.3 of article 3 of 214-FZ).
The developer is prohibited from having more than one current account (part 2.3 of article 3 214-FZ).
For each payment by the developer, special banking control is carried out (part 2 of article 18.2 214-FZ).
The rest of the funds after the completion of the project, the developer can use at its discretion only after the fulfillment of obligations to transfer apartments to all participants in shared construction (part 8 of article 18 214-FZ).

Consequences of non-compliance
Special administrative and (or) criminal liability for violation of the norms on the number and location of the developer's accounts has not been established. It is assumed that the authorized bank will take some measures when it detects payments to the general contractor or technical customer to an account placed with another bank. However, the law does not contain provisions obliging the bank to refuse to make payments to such accounts or to notify the regulatory authorities and the Shareholder Protection Fund of such cases.
It is assumed that banks that do not have the status of “authorized bank” will not open accounts for an organization if the words “specialized developer” are used in its name. However, the law does not contain a direct prohibition for such banks to open accounts for specialized developers.
The law does not contain the obligation of an authorized bank to refuse a developer to make a payment if supporting documents are not submitted, or the payment does not comply with the established restrictions on the intended use.
Topic 11
The essence of the rules:
The developer is obliged to post annual accounting (financial) statements and interim accounting (financial) statements on the website (clause 7 of part 2 of article 3.1 of 214-FZ).
The developer is obliged to post the same information in the UIIHS (part 4 of article 23.3 214-FZ).
Consequences of non-compliance
Indicated in topic number 4.
Topic 12. Obligations of the developer to place additional information in the project declaration
The essence of the rules:
In the project declaration, the developer must additionally indicate:
information on the construction projects of the main and subsidiary companies put into operation during the previous three years (clause 4 of part 1 of article 20 214-FZ);
information on the compliance of persons participating in the management of the developer with the established requirements (clause 7 of part 1 of article 20 214-FZ).

Owning your own home is even cooler than owning a car. After all, if you can get from point A to point B by bus, then it is very problematic to do without your roof over your head. And the prices for ready-made apartments force many to look for a way out in shared construction: this way it turns out, at least not by much, but cheaper.

To help a person protect himself and his savings from unscrupulous developers and get his paid square meters is the law 214-FZ on shared construction.

The purpose of our article is to tell you the main points that you need to know about the law 214-FZ. You can also download the full text of the law in its current version from us (under the text of the material, at the end of the page).

Why and who needs it

The biggest danger of a “share” is that you have already paid the money, and your apartment in the new house still exists only on paper, because the house has not yet been built.

Example 1

With the birth of the twins, it became difficult for the Benediktov family to huddle in the same room. Therefore, it was decided to sell the little family, add the money set aside for the car, and buy a new three-ruble note in a house under construction. 214, the spouses did not read the law on shared construction, but under an agreement with the developer, the house was to be handed over in six months.

At this time, Benediktov's wife moved with her children to the village with her parents, and the head of the family began to prepare for the move. But when, six months later, the happy Benediktov came to admire his new apartment No. 25 - as it was stated in his contract - he found a nimble peasant in it, who actively supervised the repairmen. The peasant also signed a share agreement, paid the money and, according to the papers, had the same right to the same apartment No. 25. There were several more such poor fellows in the house. And all of them have been hounding the thresholds of the courts for several years. The disputed apartments have been arrested, and Benediktov's wife is threatening divorce.

Example 2

Emma Stanislavovna sold the dacha and antique decorations in order to buy her grandson an apartment, albeit small, but separate. The construction company was chosen on the advice of friends. The new house was promised to be handed over in a few months. But two years have passed, and the new building has risen only three floors instead of the planned sixteen. The developer has gone bankrupt, the director is wanted, and the deceived equity holders, led by Emma Stanislavovna, are picketing the mayor's office and writing letters to all authorities.

Until recently, such situations were not uncommon. The new law on shared construction - 2018 has undergone many changes and additions since the adoption of its first edition in 2004, until, finally, it became possible to talk about the appearance in it of a real system of state regulation of the activities of developers and guarantees that the money will not disappear without a trace, but the property will be built and handed over to the owners.

What shareholders need to know

The text of the law is quite complicated and is designed more for professionals, but some points should be remembered by every person who decides to take part in shared construction:

• 214 The Federal Law on Shared Construction establishes mandatory state registration of an agreement on shared construction, and money for new housing is paid only after such registration with Rosreestr. This protects the shareholder from the risk of double selling, i.e. the developer will no longer be able to sell the same apartment to several buyers;
• the creation of special compensation funds is envisaged, which are formed at the expense of mandatory deductions from construction companies before the conclusion of an agreement with the first shareholder. Therefore, if the developer does not have enough funds to complete the construction, he will receive them from the compensation fund. If the developer abandons the object or goes bankrupt, shareholders will receive compensation from this fund;
• the construction company itself is now required to have experience in the construction of apartment buildings for at least three years, and the amount of its own funds must be at least 10% of the planned cost of the project. This rule is intended protect citizens from one-day firms.

What else to pay attention to

Each developer is required by law to create their own official website on the Internet. On such a site, you can find all the necessary information about the construction company itself, its construction permits, project documentation for the facilities being built, information about the developer's payment of contributions to the compensation fund, as well as projects of concluded equity participation agreements. A preliminary acquaintance with these documents will allow you to choose the best option when deciding whether to participate in shared construction, and, if necessary, consult with a lawyer in advance.

The reliability of the developer and the quality of his work can be judged by the lawsuits that are brought against him. Arbitration courts consider disputes involving organizations: such cases can be found on their official website. You can find out about the claims brought against the developer by citizens, and the decisions made on them, on the portal of the State Autonomous System "Pravosudie".

“I am one of the largest developers in the country, why are you trying to kill me?” - so emotionally commented on the new version of the law on shared construction, the owner of a large development company at a recent meeting in the Ministry of Construction. The amendments were signed by the President in the summer and should come into force on July 1, 2018. Since then, ministry officials have been regularly discussing with representatives of the largest construction companies how to mitigate the effect of these changes. If this is not done, the industry will not survive, according to most builders. The main thing is the protection of equity holders, and scammers and small companies will leave the market, supporters of the law object. Vedomosti figured out what exactly will change and why it confuses builders.

Background

To solve the problem of deceived equity holders - people who invested money in construction and did not receive the promised apartment, in 2005 the law "On Participation in Shared Construction of Apartment Buildings and Other Real Estate" was adopted. He forbade developers to take money for an apartment before obtaining permits for construction; obligated them to prescribe in the contract all the terms and penalties for its non-fulfillment; register the contract to avoid double sales.

Developers figured out how to circumvent the law, and officials and deputies each time tried to put a barrier in their way. But the changes were cosmetic, and radical measures were required, explains Nikolai Nikolaev, chairman of the State Duma Committee on Natural Resources, Property and Land Relations. “Why do we have a catastrophic number of deceived citizens?” he asks. There is no sufficient responsibility of developers, the deputy answers. He says that the State Duma insists on the entry into force of the new amendments six months earlier - not from July 1, but from January 1, 2018.

The number of deceived equity holders, according to most of their defenders, is still in the six-digit figures. In 2007, in Russia, according to the estimates of the organizing committee of the deceived co-investors of Moscow and the Moscow region, there were 200,000 of them. In 2017, the working group on the problems of deceived equity holders under the General Council of the United Russia party counted 122,000 defrauded equity holders. And only in the Ministry of Construction and Housing and Public Utilities of Russia they believe that there are only 86,000 of them in the country now. True, the Ministry of Construction has very strict criteria for determining them. For example, if a person has invested in a house that is being built with violations of land and town planning legislation, then officials will not recognize him as a deceived shareholder. Nevertheless, even with this method, the figure is impressive. Why are there so many?

Unfinished big and small

“All the problems with deceived equity holders are due to the fact that the companies [because of which they appear] are incomprehensible and small,” Sergei Polonsky, founder of Mirax Group, said in a 2007 interview with Vedomosti. So he, then a respected developer, co-owner and head of one of the most famous development companies in the country, explained why thousands of buyers of new buildings across Russia ended up without money and housing. But a few years later, using the example of his own business, he proved that the matter was not in the size and fame of the company. In June 2013, the bankrupt Polonsky, who was then in Cambodia, was accused in absentia of fraud. According to investigators, just in 2007-2008. Mirax managers entered into preliminary contracts for the sale of apartments in the expensive Kutuzovskaya Mile residential complex that did not comply with the project documentation, and the proceeds were used to finance other projects. The investigation recognized more than 100 people as victims, estimating the total amount of damage at about 3.2 billion rubles. Polonsky was found guilty of fraud, spent a year and a half in Matrosskaya Tishina, and was released in July 2017.

So far, Polonsky is one of the few examples when the head of a construction company that did not give apartments to buyers went to jail. Top managers of the bankrupt company SU-155 are also under arrest. In particular, Alexander Meshcheryakov, the former general director of SU-155, is charged with embezzlement of funds from equity holders who bought apartments in unfinished housing complexes.

Control Changes

The authorities solve the problems of equity holders in two ways: they are looking for money to compensate the victims and tighten control over the builders. This week, on October 25, a compensation fund will start working to ensure the obligations of developers under an agreement on participation in shared construction, Deputy Minister of Construction and Housing and Utilities of Russia Nikita Stasishin told Vedomosti. All developers selling apartments under construction are required by law to transfer to this fund 1.2% of the price of each contract for participation in shared construction. The fund's funds will be directed to the completion of problematic houses. Annual contributions to the fund can be about 10 billion rubles, says Alexander Plutnik, director general of the Agency for Housing and Mortgage Lending (AHML). The fund, according to him, has no plans to collect a certain amount, it must provide financial coverage for the existing risks of shared construction.

Who are the deceived shareholders

The Ministry of Construction recognizes as deceived equity holders only those participants in shared construction to whom the developer does not fulfill its obligations under the shared participation agreement for more than nine months and at the same time does not increase investment in building a house for more than two reporting periods in a row. In addition, the developer does not have a legal successor for the construction of the facility and its obligations to the shareholder are not secured by a bank guarantee or civil liability insurance.
But in some cases, the existence of an equity participation agreement in construction does not protect the buyer. Shareholders are not recognized as deceived in the following cases: - in a built house, the same premises are sold several times;
- the house is being built on a plot that is not registered as a property or leased by the developer;
- the house is being built on a site where such construction is not allowed;
- the house is being built in violation of the urban plan, design requirements, etc.

Buyers of apartments will understand that now they will not lose anything anyway: they will receive either an apartment or money back, says Stasyshyn. But so that unscrupulous developers would not be tempted to shift responsibility to the state, amendments to the law on shared construction were developed. However, their very adoption came as a surprise to officials.

An agreed-upon version, on which officials, bankers and builders worked, went to the State Duma, and completely different amendments got into the law, a government official complains. According to him, the amendments were rewritten literally the night before they were considered - they did not even get into the electronic system of the State Duma.

“When we began to consider the bill in the first reading, we found that it was in danger of becoming another cosmetic document. Therefore, a lot of changes were made by the second reading by the deputy corps,” explains Nikolaev.

One home, one builder

The law introduces the principle of "one developer - one building permit". That is, for each house, a separate legal entity must receive permission.

In this case, it will be impossible to carry out projects for the integrated development of the territory, the builders believe. Houses in large projects are built in stages. For example, the construction of the Akademichesky district in Yekaterinburg, which provides for the construction of 13 million square meters. m of real estate on 2500 hectares, due to be completed in 2026. Obtaining permission for the entire area is an almost impossible task. After all, for this you need to immediately design all the buildings (it will cost about 2000 rubles per 1 sq. M). It will take billions in investments and years of preparation, explains a major developer. Now the pace of design depends on the developer.

It is also important that until now, in large-scale multi-year projects, the developer could change individual objects depending on market conditions - the size of apartments, the number of floors, etc. It is difficult to calculate the market for 5-10 years, explains the president of the Granel Group of Companies Ilshat Nigmatullin. The amended law eliminates this possibility.

We start on our

In accordance with the new law, the developer cannot attract credits and loans for the purchase of land and other needs. If he bought land on credit before the law came into force, he will not be able to raise funds from equity holders until the loan is repaid.

In the cost structure, the developer’s costs for registration of land and legal relations (acquisition of rights to land plots, change in the type of permitted use, territory planning, engineering surveys, design, conclusion of technological connection contracts) can reach up to 30% of the total construction cost, and in Moscow - up to 50%, says one of the developers.

With all this, the new law requires the developer to show on the account funds in the amount of 10% of the project cost of construction. Where can the builder get them from? These 10% are just the maximum possible profit from the previous completed project, says Pavel Bryzgalov, Director for Strategic Development of FGC Leader. But even if the developer received it, the new law prohibits the use of profits to finance construction until all apartments in the house are transferred to equity holders.

Unscrupulous buyers will have the opportunity to block the activities of the developer, evading the acceptance of the apartment, and even lead him to bankruptcy, fears one of the developers. This will not happen, says Alexander Sidyakin, State Duma deputy and head of the working group to protect the rights of participants in the shared construction of the United Russia party. He promises to make amendments: “While protecting the rights of equity holders, one cannot indulge blackmailers who, through a penalty, paralyze the construction of the entire facility.”

Newbies don't have to worry

In accordance with the new version of the law, the developer (or a person affiliated with him) must have at least three years of experience in the construction of apartment buildings with a total area of ​​at least 10,000 square meters. m as a developer, technical customer or general contractor. “This rule will limit access to the market for new companies, thereby strengthening the position of large and long-standing development structures,” said Roman Sychev, general director of the construction company Tekta Group. “The restriction will contribute to the creation of partnership schemes, which will be forced to include new developers.” In his opinion, regional centers and small towns, in which no more than 5,000–10,000 sq. m per year, they run the risk of being completely left without new buildings.

Shareholders will be helped with land

“The problem is almost 20 years old, and deceived equity holders continue to appear,” says Tamara Matuzkova, a representative of the initiative group of equity holders in Samara. The new version of the law on shared construction provides for the creation of a compensation fund. This will help protect the rights of new equity holders, but what about the old ones, she asks. After all, the authorities did not offer any recipe for them. The representative of the Ministry of Construction does not agree with this: “All regions with deceived equity holders submitted to the Ministry of Construction of Russia schedules for completing the construction of problematic facilities, indicating the timing and mechanisms for solving. Every quarter, the Ministry of Construction checks how these schedules are being met, and also helps the regions by providing free land that can be used by developers investing in completing problem homes.

The new law prescribes that the developer should not have obligations for loans, loans, loans, with the exception of targeted loans related to raising funds from equity holders. That is, project financing in banks and mortgages. In fact, we are talking about a ban on attracting third-party non-bank financing - through, for example, issuing bonds or bills, the bank will be the only creditor, Sychev believes. Such a restriction will increase the dependence of construction companies on banks, Ignakhin believes. But it will be difficult to implement the idea. In particular, the bank must have a staff of specialists in construction who can understand the essence of contract agreements and assess the adequacy of prices for the services rendered on them, Ignakhin points out. But banks do not have such people and technical resources. “This means that financial institutions will be reluctant to open “project” accounts for the developer, contractor and customer,” says Ignakhin. “In any case, control will result in increased costs for banks, and therefore for developers, to whom they will provide settlement services.”

The largest banks did not respond to Vedomosti's request for comment on changes to the law on shared construction. If it enters into force in this form, the relationship between banks and developers will have to be reviewed, and any changes require time and effort, that is, there may be surprises for both parties, one of the bankers argues.

Where to get money

According to AHML, about 630,000 contracts for participation in shared housing construction were concluded last year, in monetary terms - 1.8 trillion rubles. If the law remains unchanged, the developer will need its own funds in the amount of 40% of the total cost of construction, according to a large developer. This is how much he estimates the minimum cost of acquiring land, obtaining a building permit, plus 10% of the cost of construction reserved by law. These funds should be actually frozen until the transfer of the last apartment to buyers, emphasizes the source of Vedomosti.

The one-time withdrawal from developers of all the profits received from previous projects will lead to a lack of funds for the purchase of new sites and the development of urban planning documentation, Bryzgalov believes. And this means a complete withdrawal from the housing construction market of small companies. In the market of Moscow and the Moscow region, these are companies with an annual turnover of less than 10 billion rubles. - since here only the cost of buying a new site is at least 1 billion rubles, Bryzgalov believes.

“Collateral holders, of course, will be protected from unfinished construction and non-repayment of funds. But the adoption of such drastic measures can significantly increase the cost of housing, since, on the one hand, investment protection is growing and this stimulates the demand for primary housing. On the other hand, this leads to an increase in the cost of raising funds for construction in the market as a whole and a reduction in the number of market participants. The standard market mechanism will work: less risk - less difference in price between the object under construction and the constructed object, ”admits one of the major developers.

What will the law do

Among the builders there are also supporters of the law. “The novelties are aimed at increasing transparency and responsibility in the construction market. The risk of the emergence of toxic developers created like a pyramid is reduced, when by attracting money from one project, obligations on other projects are actually closed,” comments Nikolai Bulychev from MR Group. Large developers, in his opinion, should not experience difficulties, but developers for whom construction was not a core activity will be forced to seek partnerships with established developers. And since there are no prerequisites for an increase in market prices, the profitability of the construction market as a whole will decrease, Bulychev predicts.

“First of all, we care about the safety of attracting funds from equity holders,” says Stasishin. “Builders are afraid that everything will collapse. Nothing of the kind, ”Nikolaev is sure. Developers, according to him, are now, in fact, financial structures - they have attracted 3.3 trillion rubles during the operation of the law on shared construction, which were not subject to financial supervision. “In the hands of citizens today, about 20 trillion rubles. But they will think 10 times to buy an apartment from a developer under a shared construction agreement,” Nikolaev assures. In his opinion, after the introduction of new requirements, citizens' confidence in the industry will gradually be restored. “The new amendments are not tough enough. We are currently working on a bill that will introduce subsidiary liability of the beneficiaries of developer companies,” he promises. According to expert estimates, out of the total volume of projects launched in 2013-2014, about 7% moved into the category of problematic ones - we are talking about hundreds of houses, says a representative of AHML. According to him, the changes in the law will fully ensure the financial stability and transparency of developers, control the targeted use of funds of participants in shared construction, and most importantly, they will exclude obviously insolvent or dishonest companies from the guarantee system. Their losses or theft will not be passed on to the industry, and ultimately to the buyer, sums up a person close to the government.