Concluded a contract for the purchase of an apartment buyer rarely goes to his termination, as the time until walking range of properties, as a rule, it is sufficient to determine all the “pros” and “against.” If the interest holders still decided to cancel the contract, to be well founded.
“According to practice, the main reason for the interest holders decided to terminate the contract is a significant delay in construction time. In addition, potential buyers can scare about the negative financial position of the builder or the seller’s breach of contract, its execution, – says Sergey Kushmenyuk, General director of investment real estate “Kondra.” – however, terminate the contract and refund your money often is not easy, and in some cases and not seen as possible. So consider the situation when you suddenly become not need an apartment that you have purchased it is better to. ”
Prevention of potential trouble
When purchasing an apartment in a new main factors that need to pay attention to the buyer, are the following:
1. Legal documents for construction: decision of local authorities to provide land for development, additional powers, at the legal act, an investment contract for construction, land lease agreement (the 214-FZ “On Participation in the shared construction of apartment buildings and other real estate and amendments to some legislative acts “), the project declaration, containing all necessary information on a newly built house and the builder.
2. The organization, which builds and sells apartments. Sale may make a self builder, it is preferable for the buyer, and co-investor, conceding his right. In the latter case, a mandatory fee is necessary to check eligibility and assign the right person, realizing that right buyer.
3. Contract or several contracts, under which apartment for sale (the contract should include all the essential terms: the characteristics of the apartment, its location, date of construction of the house, date of delivery of the apartment to the buyer, the cost of the apartment, other than such jurisdiction, punitive damages).
If the apartment is sold by an organization in this law, which has a good reputation, participating in various investment projects, and the contract corresponding to the above requirements, a refund will then be implemented much easier than when the company was created only for the sale of apartments in the same house or of the apartments on a single investment project.
Organization, just realizing the apartment, you should check the financial solvency and debt, for example, through lawyers to seek information on possible financial claims from creditors. The more of these claims, the less likely to return the money if need be, respectively, a contractual relationship with a company better not to start.
For some reason, you can claim the money
You can terminate the contract by the dissolution or annulment. Both the first and second versions can be implemented only if the statutory grounds:
- If a material breach of contract by the other party;
- Significant changes in circumstances;
- In other cases provided for in this Civil Code and other laws or the contract;
- If the contract does not comply with the law;
- If the agreement to cover other transaction;
- If the contract is signed by an unauthorized person;
- If a reservation entered under the influence of fraud, confusion, under unfavorable conditions for the party.
Without a serious reason to terminate the contract or to go to court for recognition of its void is impossible. Practice shows that in the pretrial order, no builder is not received from the buyer returns the funds have to go through two stages of the trial (the first instance, the revocation), and enforcement proceedings.
Despite the fact that the law provides for compulsory pre-specified disputes, with claims stage of the proceedings, it is desirable to take it all the same to the court for formal reasons not to refuse to accept the claim for consideration. The complaint should specify a shorter period a refund, for example, 10 days (according to general rules of civil procedure – 30 days).
If specified in the contract have expired deadlines for building a house or apartment to provide the buyer, the grounds for termination of the contract, return of funds, as well as a penalty there. If the completion date of construction yet to come, but it is clear that in time the apartment is not granted to the buyer, then there are also grounds for termination of the contract with all its consequences. The grounds for termination of the contract may be a change in the area or lay-flat floor, a project of the house or the surrounding area, cost object, and many other things that the buyer has a special or significant.
Recognize the contract null and void and return the funds may, when such an agreement does not comply with applicable laws or does not contain the mandatory conditions, which for each contract law are set separately – in general, it is a subject of the contract, cost, timing. Also, the contract null and void by the common ground of Civil Code, for example, misrepresentation, deception, pretense or sham transactions, in practice, not uncommon.
It is worth to remember and understand that if the developer (a seller) in accordance with the law and the agreement complies with all its obligations, to terminate the contract would not be possible.
How much money to ask
The right to a refund for purchased an apartment in the building, as noted above, are consumers whose rights were violated when prison (the invalidity of the transaction) or the execution of the contract (cancellation of a contract).
If the interest holders intend to buy an apartment in the building, then the legislation provides only for an agreement to participate in joint construction. All other contracts to sell residential real estate investors (preliminary agreements, contracts of investment, other) do not comply with current legislation, and therefore null and void from the moment of their conclusion. However, civil law for freedom of contract, and many judges have come precisely from this principle and are denied many lawsuits aimed at ending the relationship with the developer, sold the apartment not for 214-FZ.
Also, do not forget that when you return the company paid cash can be spoken of as the very sum payment, then there is a nominal and a penalty – penal sanctions provided by law or contract. If the fault of the seller interest holders have been caused damages, for example, by paying interest on a mortgage or lease of a dwelling, the increase in value of the apartment, otherwise, such additional costs or penalties as non-refundable. Refundable shareholders and all legal fees (State fee, attorney’s costs, other), if the interest holders shall recover the money in court.
The practice of returning the money for new buildings
We recommend you start a refund to the buyer with the preparation and filing with the developer or seller. The claim must be thoroughly and in detail all the register, as well as give their bank details for refund, and return periods (7 – 10 days). It is important to properly formulate the requirements as they relate to damages and penalties. Submit two copies of the claims is to receive a mark on one of delivery. If you put a mark refused, a complaint must be sent by registered mail with notification.
If within that period to claim the money is not returned, the buyer will have to go to court, before making a claim with all required documents (applications), to pay the state duty to make payments, etc.
If the court makes the case for, the legal process to prove the validity of the claim and prove to them the availability of documents that were attached to the lawsuit, or those who need to claim at the request of the court. According to the results of judicial proceedings, the buyer gets a court decision and court order, and it is for him and the process of returning the money awarded.
Refunds for paid apartment in new building is a complex process. It is understood that to win a court does not mean getting cash awards. In practice, the frequent use cases, the company can not cope with the burden of debt hanging on it and declare yourself bankrupt, which leads to the impossibility of obtaining money lenders (interest-holders, who paid for the apartment).
To guarantee real estate investors back their money advice one: buy housing in large reputable companies with good reputation and multimillion-dollar share capital and only 214-FZ. The investment contract and the contract insures the equity in the state or large private insurance company. Also, remember – all contracts for the purchase and sale of apartments in new buildings must undergo a mandatory state registration.