Housing cooperative or “road map”? What should equity holders do in case of bankruptcy of a developer? A “road map” for restoring the rights of Urban Group shareholders has been approved. Power has come to the “defrauded shareholders”

The problem of defrauded shareholders in Dagestan should be resolved by the fourth quarter of 2020. This follows from the “road map” signed by the head of the Republic of Dagestan Vladimir Vasiliev on Monday, December 17th. This document cancels the “road map” of August 7, 2017, adopted by the ex-head of Dagestan Ramazan Abdulatipov.

According to Vasiliev’s order, the Cabinet of Ministers of Dagestan must report quarterly to the Russian Ministry of Construction. The Deputy Prime Minister of the Republic of Dagestan has been appointed responsible for the implementation of the schedule Vladimir Lemeshko.

The register includes 10 problematic objects - 8 in Makhachkala and 2 in Derbent. Derbent long-term construction projects include Ekhtibar and Phoenix, about which our agency has repeatedly reported.

Will the Phoenix take off?

Construction of a nine-story building with four entrances for 128 apartments at the intersection of Gagarin and Genrikh Gasanov streets in Derbent began in 2010. Shareholders were promised apartments in the second quarter of 2010.

The construction of the house was carried out by the Phoenix Homeowners Association, headed by the chairman Felix Zagirov, who collected over 140 million rubles with the shareholder. However, after building three floors and spending no more than 30 million rubles on it, he went on the run.

Zagirov’s accomplice in fraud with apartment purchase and sale agreements, as later established by the Department for Economic Crimes of the Ministry of Internal Affairs for the Republic of Dagestan, was the head of the Derbent property management committee Magomedali Kurabekov. In total, Zagirov is accused of defrauding shareholders in an amount reaching 150 million rubles.

In May 2011, the Derbent City Court found Zagirov guilty of tax evasion. A criminal case was opened against him in 2012. An inspection of the Ministry of Construction of the Republic of Dagestan established that Zagirov built quickly and a lot (several more problematic objects in Derbent are associated with his name), but not according to GOST. According to RIA Derbent, he was detained in November 2017 in Sevastopol.

The defrauded shareholders organized themselves, transforming the Phoenix HOA into the Spasenie HOA, and the housing cooperative of the same name, which is engaged in protecting the interests of shareholders. The house was completed by them using their own funds. The apartments are already occupied by them.

According to his “road map,” Vasiliev expects that the problem of defrauded shareholders will be solved through support “at the expense of the investor, since the developer does not plan to transfer residential premises to affected citizens.” Deadline – IV quarter of 2020.

For information about Ekhtibar LLC

Our agency has repeatedly drawn the attention of the authorities and the public to the situation in Derbent, where since 2005 a group of citizens who are defrauded shareholders of Ekhtibar LLC, trying to achieve justice. The shareholders of Ekhtibar LLC were defrauded by them.

They blame the deputy of the State Duma of the Russian Federation for everything Murad Gadzhiev, which has been publicly stated several times. So, the representative of the Committee Manisat Nasrullaeva Gadzhieva told another State Duma deputy several times about her frauds Umakhan Umakhanov. This was done to address the problems of defrauded shareholders in Makhachkala. It is noteworthy that the holding of such events in the regions of the Russian Federation was initiated personally by the President of the Russian Federation Vladimir Putin. In addition, Nasrullaeva again raised this issue at a special all-republic meeting, which was held by the same deputy Umakhanov. No reaction in response.

On the other hand, Murad Gadzhiev himself does not stand still. His people, according to the victims, are threatening the defrauded shareholders of Ekhtibar LLC. A clone committee of defrauded shareholders has been created, which is trying to discredit the activists.

Derbent residents are included in the register of defrauded shareholders, the Ekhtibar residential complex itself is included in the “road maps” of the Ministry of Construction of the Republic of Dagestan. According to the above order Abdulatipova, the property must be transferred to a new investor to complete construction.

Only in June 2018, the acting mayor of Derbent Enrik Muslimov that the Ekhtibar residential complex will be completed by the end of this year. The object was transferred to the construction company "Standard". This statement was preceded by a meeting at the mayor's office on the problem of defrauded shareholders of Ekhtibar LLC. Muslimov then informed the audience that the Standard construction company had approached the mayor’s office with a proposal to complete the construction of the Ekhtibar residential complex at its own expense, without attracting funds from the shareholders themselves. Our agency published information that was unknown to the public.

According to Vasiliev’s “road map”, a 10-story, 10-block apartment building located at the address: Derbent st. Sovetskaya, 13, should be completed at the expense of the investor. Deadline: IV quarter of 2020.

However, another problem arises here - over the past years, the building of the Ekhtibar residential complex has fallen into disrepair. An examination is required to determine whether the house is suitable for commissioning, whether it is advisable to complete it, or whether it should be demolished. Not only is no one ordering this examination, but construction is underway at the problematic site. But there is no reaction to this either. Everyone is well aware that putting a dilapidated house into operation will certainly doom the shareholders of Ekhtibar LLC to new suffering, and possibly to a tragedy, from which in this case no one will be insured. The new road map does not provide clarity on this issue.

Oddities of the "road map"

It follows from the document, as the economist noted in an interview with RIA Derbent Mair Pashaev that the map includes houses for which there have been class action lawsuits or bankruptcy proceedings for the developer have been introduced.

“Some houses are completely occupied, but cases of “double” sales of apartments are being investigated. I think this is only a visible and small part of the problem of defrauded shareholders, which has received wide publicity. Actually, there are no solutions according to the “road map”, they will look into and change partnerships, identify new developers,”- said Pashayev.

The agency’s interlocutor also expressed bewilderment that there is no financial participation from the government or municipal authorities.

“In Moscow, the city government decided to finance from the budget the completion of construction of problematic apartment buildings after a change of owner. This is a fairly clear and effective solution to the problem of defrauded shareholders.”“, the expert concluded.

Ruslan Makhmudov

One of the tools for monitoring the situation around unfinished shared-equity construction projects is the so-called “road map” for solving the problems of shareholders who suffered as a result of unlawful actions of developers. The document was adopted by order of the Russian Government back in May 2017, and the other day Russian Prime Minister Dmitry Medvedev ordered the executive authorities to supplement it with information about the time frame for resolving issues on each long-term construction project.

The “road map” represents a work schedule for each registered problem object. Information in it is accumulated in a unified form approved by the Government of the Russian Federation. Documents for each region are prepared by local executive authorities and sent to the Ministry of Construction of the Russian Federation. Once a quarter, the ministry updates the consolidated plans. It also analyzes the received data and monitors the implementation of already approved plans and schedules. A report on the results for each quarter goes to the Government of the Russian Federation.

In accordance with the new order, schedules will be supplemented with a special column. It contains information about the expected time frame for restoring the legal rights and interests of the affected shareholders. In addition, the Ministry of Construction of Russia on its official website on the Internet will also be required to post information about the planned time frame for solving the problems of shareholders for each problem object. Changing the previously specified dates will require serious justification on the part of the leaders of the Russian regions that have committed delays.

Let us remind you that in addition to the “road map”, shareholders already have two important tools in their arsenal that allow citizens to monitor the situation around new buildings with the involvement of citizens’ funds. Investors of problematic properties are given the opportunity to be included in the “register of defrauded shareholders” and have access to a nationwide list of problematic shared-equity construction projects. It is available on the website of the Ministry of Construction of the Russian Federation http://www.minstroyrf.ru/problem-objects and contains data on 834 unfinished construction projects.

On January 1, 2018, the Fund for the Protection of the Rights of Citizens - Participants in Shared Construction of the Year launched the “Unified Information System for Housing Construction” (UISHS) on the Internet - https://nash.dom.rf. The resource gives citizens the opportunity to make an informed decision on participation in shared construction, providing information that is subject to mandatory disclosure under Federal Law No. 218-FZ. The UISHS also reports on the number of developers who have made contributions to the Compensation Fund. At the end of March 2018, 647 developers had already contributed 1.2% of the cost of the DDUs they signed to the fund, having registered more than 10,000 agreements.

There are still 34 problematic objects in Moscow

Over the past six years, 36 problematic properties have been completed in Moscow, in which 11,374 defrauded shareholders received apartments. Currently, 34 addresses remain under the control of the mayor’s office. City authorities promise that all citizens who have suffered from the actions of unscrupulous developers will receive housing, but this will require a lot of time and effort.
The Ministry of Construction stated that the regions fulfilled their obligations to defrauded shareholders for 2017. Problems were resolved in 140 properties where 6 thousand Russians purchased housing. According to the head of the department, Mikhail Men, recently the number of defrauded shareholders has noticeably decreased, but still remains quite high - a total of 68 thousand people are on the lists. Compared to other regions in Moscow, the situation looks good: the register maintained by the city authorities, as of January 1, 2018, consists of 4,621 people who bought apartments in the Tsaritsyno residential complex, Maryino Grad residential complex, Sports Quarter residential complex, Residential complex "Sport Town" and other objects, including on the territory of new Moscow. “These are those who are recognized as victims in the process of shared construction in accordance with the criteria of the Ministry of Construction,” the city administration explains.
However, according to the head
Moskomstroyinvest Konstantin Timofeev, the real number of citizens affected by the actions of unscrupulous developers exceeds the number officially registered. “In total, there are approximately 11,800–12,000 defrauded shareholders in the city,” the official calculated. - However
many do not register
because they cannot find the necessary documents. Or they simply don’t want to declare themselves, knowing that the register is only of an accounting nature and does not carry an obligation to provide an apartment.” Moskomstroyinvest currently considers 34 projects problematic: most of them ended up in Moscow after the annexation of new territories, and a number are old addresses, construction work on which began before 2010. In order for citizens to receive apartments, they can act in two ways: either attract a stronger investor who can complete the construction at the expense of profits, or finance the construction of the house using budget funds. The third way involves cash payments: in this case, citizens will not receive housing, but at least they will be able to return the invested funds. According to Timofeev, of the 34 problematic construction projects that are under the control of the Moscow government, 24 continue according to road maps, which spell out the conditions and deadlines for completing the work. The authorities will solve the problems of affected shareholders at the remaining 10 sites through compensation measures. “We will not abandon people in trouble,” Sergei Sobyanin promises. “I am confident that all problems will be resolved, but this will require a lot of time and effort.”
One of the heaviest addresses is considered to be the Tsaritsyno residential complex, consisting of 14 buildings with a total area of ​​almost 800 thousand square meters. meters. The developer did not fulfill obligations under 3264 DDU. The register of defrauded shareholders includes 1,219 people who invested in construction. In order to “resolve” the situation and give citizens the apartments they paid for, the city will have to use both mechanisms. Using budget funds, utility networks, a kindergarten, a school and the first phase of residential buildings will be completed. About 3.5 billion rubles have been allocated from the budget for these purposes. The second stage will require attracting a strong investor, but until bankruptcy proceedings have begun against the previous developer, this is difficult to do, although the city already has a technical customer - this is RK-Stroy, which is part of the structure of the Russian Capital JSCB. “The timing of solving the problem of defrauded shareholders of the Tsaritsyno residential complex depends on the bankruptcy procedure,” says Timofeev. According to him, the court hearing in this case is scheduled for March 2018, and if everything goes well, we can expect that the first stage of the residential complex will be completed in 2019. This will provide housing for 1.3 thousand shareholders.
At the moment, the situation with the former SU-155 facilities, numbering 1.6 thousand apartments, looks more clear. At six addresses, the Moscow government made decisions to complete construction. The same RK-Stroy is managing five sites. The property on Bochkova Street was awarded to the Capital Group company at the auction. In the first quarter of 2018, according to Timofeev, she will begin signing documents with 18 shareholders (DDU SU-155 were not concluded), who decided to wait for the completion of construction of this house. Another 22 shareholders have chosen apartments in the Tricolor residential complex already built by Capital Group, and they are given keys. Two buildings in the Mir Mitino residential complex will be completed in the first and third quarters of 2018. And to begin work in Chertanovo, it is necessary to issue a decree from the Russian government, since the site is in federal ownership. After this, the main construction and installation work, according to Moskomstroyinvest forecasts, will be completed within 12 months, commissioning is currently planned for the first quarter of 2019.
Despite solid powers, the metropolitan authorities, unfortunately, are unable to monitor the state of affairs at all city construction sites where shareholders' funds are used. About 70% of developers in Moscow are small businesses: according to the law, they can be routinely inspected no earlier than three years later, despite the fact that the bulk of the funds required for building a house are collected much faster, when the construction is still in the foundation pit stage . Therefore, the construction industry welcomes the gradual transition from shared construction to project financing, the need for which was stated by Vladimir Putin. The sale of finished housing, which underlies and is the main advantage of the new mechanism, will minimize the risks of future new residents and will finally rid the market of defrauded equity holders. But the transformation will not be quick: according to Moskomstroyinvest’s forecasts, shared construction will definitely not disappear anywhere within 3–5 years. This means that, despite new legislative initiatives that tighten requirements for developers, city authorities will remain vigilant.

11:14 — REGNUM The creation of a housing construction cooperative (HBC) by shareholders may be an alternative to resolving the issue of bankruptcy of the developer, but there are also pitfalls, says lawyer, managing partner of the Unified City Service “Assistance to Shareholders” Zhanna Malis.

Anna Ryzhkova © IA Krasnaya Vesna

Earlier, the Vedomosti newspaper reported that the first meetings of shareholders of the bankrupt developer Urban Group will be held in early December, at which they will be able to choose a mechanism for completing housing construction. The agenda of the meeting will include the issue of creating a housing construction cooperative (HBC) by construction participants. If the decision is positive, the shareholders will complete construction and maintain the facility with their own money.

If shareholders do not vote for this option or in the absence of a quorum, the bankruptcy trustee will be able to attract a new developer to complete construction in accordance with the road map adopted by the Russian government. Then construction will be completed using funds from the federal and regional budgets.

“The creation of housing construction cooperatives (HBCs) may be an alternative to resolving this issue. However, there are some nuances here that you should be aware of.

Thus, in a housing cooperative, not contractual relations arise between a citizen and a housing cooperative, but corporate ones. This means that a citizen will not have the right to demand compensation for moral damage or penalties for failure to meet deadlines for delivery of an object, since the Law on the Protection of Consumer Rights does not apply to intra-corporate relations (that is, membership relations). These relations will be regulated by the charter and decisions of the general meeting of the cooperative.

In addition, the members of the housing cooperative will certainly bear additional financial costs in terms of completing the construction of the facility and its maintenance. Moreover, these costs will directly depend on at what stage of construction the developer went bankrupt. If at the initial stage of construction, then this alternative will not be the best option.

As for the Action Plan, or “road map,” of the Russian government, such a Plan is aimed at gradually replacing, over three years, citizens’ funds raised for the creation of apartment buildings and other real estate objects with bank lending and other forms of financing that minimize the risk for citizens. The emphasis in this case is on the transition from shared construction to escrow accounts.

As for the completion of the construction of the facility using funds from the federal and regional budgets, at present there is no legal basis for this, in addition, in the federal budget expenditure items there is no position “compensation for participants in shared construction.” Therefore, at this stage, such an alternative to solving the problem of bankruptcy of the developer is rather vague, since there is no clear indication of the possibility and limits of allocating funds to complete the construction of the facility from the federal or regional budget.

In general, shareholders are currently aware of all the possible risks associated with the bankruptcy of the developer. In addition, this situation becomes more complicated when the shared construction project has not yet been completed and requires completion. In this case, it is possible to submit a demand for the transfer of residential premises (apartment, room) and inclusion of the requirement in the register of claims for the transfer of residential premises, which is part of the register of creditors' claims.

In addition, there is a possible option for a monetary claim against the developer in connection with the opening of bankruptcy proceedings against him and failure to comply with the DDU. But this mechanism will not be able to fully ensure the interests of shareholders in the event that the bankrupt’s funds are insufficient to satisfy the demands of shareholders-creditors.

That is why it is necessary to expand the scope of those actions that can ensure the protection of the interests of shareholders in the event of bankruptcy of the developer.”

How many shareholders have already suffered

In total, as of February 2018, in Russia there were almost 40 thousand defrauded shareholders who invested in 836 problem properties in 69 regions of the country, as follows from materials on the website of the Ministry of Construction. But the head of the United Russia working group on protecting the rights of shareholders in the State Duma, Alexander Sidyakin, said in November 2017 that about 130 thousand people suffered from unscrupulous developers, that is, more than three times more than official statistics say.

The Ministry of Construction could not estimate how much the official number of defrauded shareholders would change after the innovations. “The procedure for adding to the register depends on the desire of the shareholder himself,” explained a representative of the ministry. “We will be able to obtain such information after the new version of the order comes into force.”

All these innovations are reasonable and inspire some hope, notes Elena Godlevskaya, a member of the initiative group of shareholders of the Tsaritsyno residential complex, the largest problematic property in Moscow. In her opinion, more reliable information about the number of victims could influence important decisions. The law “On participation in shared construction of apartment buildings...” caused many problems because it was positioned as a panacea for all troubles, but due to shortcomings it left loopholes for unscrupulous developers, Godlevskaya states.

Residential complex "Tsaritsyno" (Photo: Oleg Yakovlev / RBC)

How is shared construction regulated now?

If the house has not yet been put into operation, an equity participation agreement (DPA) will be concluded with the buyer. It specifies the area of ​​the apartment being purchased, the floor on which it is located, the number of residential and non-residential square meters, as well as the deadline for handing over the keys.

Law No. 214 “On participation in shared construction of apartment buildings...” provides that the interests of the shareholder can be protected in several ways . In particular, the developer must insure all equity participation agreements. The reason for the insurance payment is, for example, the declaring of the developer bankrupt and the introduction of bankruptcy proceedings against him. However, in fact, the insurance mechanism does not work: bankruptcy cases can last for years, and buyers remain without apartments. The developer can also open an escrow account, but almost no one uses it, since this provides for receiving funds from equity holders only after the facility is put into operation and the apartments are transferred to buyers. Finally, a bank guarantee from the developer allows additional control over the project: the bank opens a line of credit for the project, but issues financing in tranches according to the implementation plan and monitors the process. However, not all developers attract bank financing for the entire construction period.

What is changing in the laws on shared construction

The legislation on shared construction has changed throughout its existence. Moreover, the changes have always been in the direction of tightening the requirements for developers. The most serious of them were those introduced by Law No. 218 “On a public law company for the protection of the rights of citizens - participants in shared construction in the event of the insolvency (bankruptcy) of developers...” dated July 29, 2017.

The law made it possible to implement the initiative of the Ministry of Construction - to create a Fund for the protection of the rights of citizens participating in shared construction (compensation fund). Since October 2017, all developers have transferred 1.2% of the cost of each equity participation agreement (EPA) to it. This rule applies only to properties whose owners received a building permit after October 27, 2017. Now the fund, according to its representative, has already received 180 million rubles.

The fund does not finance the activities of every developer and does not allocate funds for all existing problematic construction projects, notes Tekta Group CEO Roman Sychev; it is intended to eliminate specific long-term construction projects and help specific shareholders who appeared after October 2017. For this method of dealing with the problem of defrauded shareholders, the amount is quite acceptable, Sychev believes.

New challenges for developers

Along with the creation of the compensation fund, legislators sharply tightened the requirements for the developers themselves. From July 1, 2018, it will be impossible to carry out projects for the integrated development of the territory, since the law provides that one legal entity can build only one object. This means that if now the developer distributes all the funds raised for construction for the entire project (directly at home and, for example, social infrastructure facilities), then after the change he can spend this money only on residential buildings, the remaining objects can only be financed independently. “Having only one building permit makes it impossible to build schools, kindergartens, and utility networks,” notes Fedor Sapronov, vice president for legal issues of the Ingrad group.

A developer who intends to obtain a construction permit after July 1, 2018 will also need to have at least 10% of the cost of construction of the project in his account.

Administrative and management costs are also limited - no more than 10% of the project cost. This may complicate the developer’s activities, says Level Group CEO Kirill Ignakhin. “Today, only advertising and marketing costs, which are classified as this type of expense, can exceed 10%,” the developer points out. — It’s not cheap to maintain sales offices, pay employees, etc. This requirement, in my opinion, should be adjusted and made more flexible.”

Photo: Grigory Sokolov / RIA Novosti

On January 24, 2018, the State Duma adopted in the first reading the next amendments to the laws regulating the process of shared-equity construction. The authors of the document, including State Duma Speaker Vyacheslav Volodin, intend to give the government the right to establish requirements for state control of shared-equity construction.

The bill proposes to create a unified information system for housing construction. Information about all developers and projects will be organized and collected in one place. The law on the compensation fund will include articles that will allow this fund to control the financial and economic condition of the developer working under the DDU scheme . In particular, it is proposed to give the fund the right to suspend the registration of equity participation agreements, that is, to actually block the activities of the developer. However, it has not yet been determined what criteria for the condition of companies the fund will monitor.

According to the new law, the owners and top management of the development company will be jointly and severally liable with their personal property for the debts of their company to shareholders. The document also imposes more stringent requirements for the publication of information about the founders of the development company. Currently, the developer is only required to disclose information about its own founders. In the new version of the law, it will be required to publish on its website the complete chain of ownership, down to the final beneficiaries who directly or indirectly own the developer by 5% or more.

The developer will have the right to change the authorized bank for opening an escrow account. According to the authors of the bill, all restrictions on the developer’s account are lifted at the moment the building is put into operation and ownership of at least one apartment is registered. Obtaining the right for a developer to change the authorized bank is certainly a plus for developers, says Fyodor Sapronov, vice-president for legal issues of the Ingrad group. “However, the question arises of how this will happen in practice: the legislator sets a limit on advertising costs of 10% of the project cost; Let’s say the developer chose this 10% and then decided to change the authorized bank - it is not clear how the interaction between the old and new bank will be carried out in this part, the expert argues. “Coupled with the requirement that the general contractor and technical customer must also have an account in the same bank as the developer, it is obvious that changing the authorized bank will not be so easy.”

Project financing instead of shared construction

Russian President Vladimir Putin spoke about the need to transition from shared construction to a project financing scheme within three years in October 2017. By December 15 last year, the Ministry of Construction, AHML and the Central Bank agreed on the corresponding road map.

The Road Map does not imply a complete ban on the purchase of apartments by citizens during the construction phase. However, their funds will not be collected by the developer himself, but by a bank authorized to open escrow accounts. This money will go directly to the developer’s account only after the house is put into operation. Until then, construction will be financed through a bank loan.

Many issues related to the cost of project financing, as well as when the developer will have to pay interest on the loan, have not yet been resolved. In any case, the price of housing in new buildings will increase by no more than 5-7% due to the transition to project financing, Deputy Head of the Ministry of Construction Nikita Stasishin promised at the end of November 2017.

The adoption of the law threatens that the cost of housing and the price of a “square” will increase significantly, says General Director of Metrium Group Maria Litinetskaya. To prevent this from happening, a reduction in loan rates is required, she is sure. “Money for the implementation of the project should be inexpensive and provided for a long period,” emphasizes Litinetskaya. — I believe that in order to reduce loan rates for developers, the authorities will need to launch a program to subsidize rates. Alternatively, a state-owned construction bank could be established that would specialize in financing housing projects.”