Shared construction: how developers will work during the transition period. Shareholders' money will be given to banks for safekeeping Law on financing housing construction

Purchasing apartments under a shared participation agreement was almost impossible for quite a long time. the only way save and buy housing at an affordable price. Thanks to the scheme of shared participation in construction, developers were able to saturate the market with housing, and many people solved their housing problem with the help of preschool housing. Besides, state registration DDU has ruled out the possibility of repeat sales of apartments. So why did Russia decide to change the rules for the construction and sale of housing? The authorities explain: the result of the share-sharing scheme was not only new apartments, but also unfinished residential complexes and bankrupt companies.

If you buy a home at the initial stage of construction, no one can guarantee that the house will be delivered within the stated time frame; it is possible that your money will be used to complete the construction company’s previous project. Shared construction created conditions for the formation of financial pyramids in the market, which led to the bankruptcy of some developers and the emergence of defrauded shareholders.

The reform of shared-equity construction, in fact, has already begun. Recently, Russian President Vladimir Putin, during a direct line with television viewers, announced that new DDUs will not be concluded with home buyers from July 2019. Amendments have been made to 214-FZ, some of the amendments have been in effect since January 1, 2018: for example, new rules for bankruptcy of a developer have been introduced, information transparency is required from a construction company, all data about the developer must be entered into the Unified System housing construction. But the main amendments to the law on shared-equity construction in 2018 will come into force on July 1. So what will change for home buyers? Is it possible to repeal the law on shared participation in construction? We'll tell you everything in detail.

New changes to the law on shared construction, which come into force on July 1, 2018. Shared construction from July 1, 2018

Changes in legislation are aimed at protecting the rights of shareholders, so the requirements for developers have become much stricter. We list the main amendments to 214-FZ, which come into force on July 1, 2018:

1. Guarantees for buyers of housing under construction will be provided by the Fund for the Protection of Shareholders. The developer must transfer 1.2% of the cost of each apartment purchased under the DDU to the fund. If the developer does not transfer the money, the contract will not be registered.

2. Before starting construction of a house, the construction company must confirm its financial solvency. To achieve this, the new law stipulates that the developer must have, in addition to loans, his own funds for construction. According to the new rules of shared construction, the company's own funds are at least 10% of the total construction costs. The construction company should not have debts on loans and borrowings.

3. According to changes in the Federal Law on shared construction, the developer must have the right of ownership or the right to lease the land plot where the construction of a residential complex is planned.

4. The new law requires a separate construction permit for the developer of each project (according to the principle: one developer - one construction permit). In addition, the developer is prohibited from engaging in any other activities (other than construction).

5. The requirements for the professionalism of the developer are becoming stricter: the construction company must have experience of successful projects (at least 10,000 square meters).

6. Developers will not be able to use more than 30% of the cost of housing for advance payments.

7. The amendments provide for project financing of construction. This means that construction companies must involve authorized banks in their projects. That is, in addition to the developer and the home buyer, banks accredited by the state will participate in the share financing. Firstly, the developer will be able to take out a targeted loan from the bank. Secondly, the money received for the apartment from the buyer will be kept in a special account in the bank (escrow account). These deposits will be frozen, and the developer will be able to receive them only after the completion of housing construction.

Will shared construction be canceled in 2018?

If you were planning to buy an apartment in a new building, then you are probably worried about the question: will the DDU be canceled this year? We hasten to reassure you - equity participation agreements will not immediately disappear from the equity market.

“There is no talk of a total ban on all preschool educational institutions,” explains Maria Litinetskaya, managing partner of Metrium, a member of the CBRE partner network. “Projects for which the first agreement was concluded before July 1, 2018 will continue to be implemented according to the old rules.”

The planned abolition of shared participation in construction in 2018 has led to the fact that since the beginning of the year, developers have been actively obtaining construction permits. “The stock of projects that will be implemented according to the old rules will be enough for some time so that the transition to the new rules will be relatively smooth,” says Kirill Ignakhin, CEO Level Group (developer of the Level Amurskaya residential complex). According to official data, in Moscow in the first quarter of 2018, 560 construction permits were issued for a total area of ​​almost 3.8 million square meters.

How will the transition from shared construction to project financing take place?

There is already an alternative to shared construction. After the cancellation of shared-equity construction, which, according to the President of the Russian Federation, should occur from July 1, 2019, the real estate market will switch to project financing. It is expected that in the future escrow accounts will be used for the sale of housing under construction. Avoidance of replenishment will begin in the near future. Developers are working according to the old rules until June 30, 2018. But as of July 1, 2018, they can start using the escrow account scheme. Roman Lyabikhov, general director of Atlant Group of Companies, says that in this case, buyers will transfer their funds not directly to the developer, but to the bank that finances the construction of the residential complex. During construction, these funds are reserved in a bank account and transferred to the developer after he hands over the keys to the shareholders. In the event of bankruptcy of the developer, shareholders receive the money paid back.

New law on shared construction in Russia since 2018. Will they stop concluding DDU agreements after July 1, 2018?

Projects that received a construction permit before the amendments to Federal Law 214 came into force are not subject to the new rules. Thus, if you intend to purchase an apartment under a shared participation agreement in a residential complex, the construction of which the developer managed to approve according to the old scheme, then the purchase under the DDU will take place. In such projects, it will be possible to conclude DDUs not only after 07/01/2018, but also further, including in 2019. Changes in relation to DDU will affect only new residential complexes. If in a residential complex apartments under DDU began to be sold before July 1, 2018, then in such a project sales will continue to be carried out according to this scheme.

“The road map, which was adopted by the government several months before the president’s statement, prescribed a ban on concluding new agreements after July 1, 2019,” explains Maria Litinetskaya. According to the expert, developers still have about 3-4 years left. Firstly, over the next year, developers can launch new projects for sale that will not be subject to the ban on sales under the DDU. Secondly, over the next few years they will be able to observe how sales of new projects are going, as well as launch their own, “trial” small projects. Therefore, the transition from construction with shared participation to project financing will still be smooth, and not abrupt, and the abolition of the DDU will occur gradually.

New law on shared construction in Russia since 2018. What will happen instead of preschool education?

What agreements are being prepared to replace equity participation agreements? Olga Barabanova, commercial director of Sezar Group, notes: “At the first stage, there is no talk of a complete abandonment of the DDU practice; the process of acquiring real estate from the buyer’s point of view will not change on July 1, 2018. As for the longer-term perspective of moving away from the practice of shared construction, so far industry participants have more contradictions and questions than solutions. Today, a “road map” has been announced on how exactly the reform will be implemented at the level of specific mechanisms - this is a task that remains to be solved.”

Most likely, the form of the contract that is used for the sale of housing will change, since in addition to the developer and the buyer of the apartment, the bank will participate in the transaction. The agreement, at a minimum, will become tripartite and, perhaps, will no longer be called the DDU, but something else.

What will the ban on shared construction entail?

Of course, most of all consumers are concerned with the question of what threatens the abolition of shared ownership, what will be the consequences of the transition from construction with shared participation to project financing and, most importantly, will apartments become more expensive after the abolition of shared construction? Roman Sychev, CEO of Tekta Group (developer of the Mayakovsky residential complex), believes that the price increase could be very significant - about 20%. "Within new system regulation of the primary housing market is a chain of the following participants: equity holders, bank, developer, regulators. If construction is financed by attracting a loan, then project costs will certainly increase. First of all, this will be caused by additional costs associated with the participation of banks in the project. Such expenses include interest on the target loan and the costs of servicing it, the costs of banking supervision and control over construction projects. It is possible that the cost of lending will also include the costs of servicing escrow accounts, so as not to shift them to the buyer, who is obliged to deposit money into such an account. Taken together, all these factors will affect the cost of the final product,” explains the expert.

So, the consequence of the ban on shared construction will be an increase in prices for new housing. Buyers need to prepare for the fact that apartments in new buildings will become more expensive.

New law on shared construction in Russia since 2018. Conclusion

Shared construction will not be banned immediately or overnight; the transition to project financing will be smooth.

Apartments under DDU will continue to be sold in those residential complexes for which they received construction permits before the amendments to Federal Law-214 came into force.

If apartments in a residential complex began to be sold according to the DDU before July 1, 2018, then in such a project sales will continue to be carried out according to this scheme.

After the cancellation of shared-equity construction, apartments will most likely become more expensive; experts predict that prices in new buildings will rise by up to 20%

materialNew law on shared construction in Russia since 2018

The abandonment of shared-equity construction may occur this year instead of July 1, 2019, and the sale of apartments in buildings under construction will be completely prohibited in 2020.

Such conclusions can be drawn based on the information that ended up in the hands of the business press after a meeting between President Vladimir Putin and government officials and developers.

The tightening of the authorities’ position is aimed at protecting citizens from unscrupulous developers. However, professional market participants themselves say that the measure could lead to rising real estate prices and oligopolization of the construction market.

The vast majority of new buildings in Russia (about 80%) are sold through shared construction agreements (DDU), under which real estate is built using the funds of investors (shareholders). Since such a scheme carries risks for citizens of losing money and being left without housing, joining the ranks of “deceived shareholders,” the authorities decided to change the rules of the game and exclude a large number of investors from the construction project. According to various estimates, the number of buyers whose terms of equity contracts were not fulfilled exceeded 100 thousand people across the country, which could not but alert both federal and regional authorities.

The decision to abandon shared-equity construction was made back in 2017, but in order to minimize the risks of a collapse in the market, the process of transition to project financing of the sector was extended over three years. During this time, developers had to learn to function in the new realities of project financing, master all the nuances of interaction with banks and completely “withdraw” from citizens’ funds and acquire their own capital.

According to the adopted amendments to the law on shared construction N 214-FZ, from July 1, 2019, developers will receive funds for sold apartments only after the housing is delivered to buyers. Until this moment, clients’ money will be in special bank accounts that are inaccessible to either the “builder” or future homeowners. At the same time, the insured amount, compensated from the Deposit Insurance Fund in case of problems, is limited to 10 million rubles.

According to the press, at a meeting with the head of state, developers tried to achieve relief, but everything turned out exactly the opposite: they will have to hurry up with the abandonment of shared construction, since the situation on the market is becoming critical.

Oil superpower: Gasoline prices to soar by another 10%

“Fuel to the fire” was added by the troubled company Urban Group, in the event of bankruptcy of which the list of affected shareholders will increase by 16 thousand people. At the moment, the company, which has liabilities of 80 billion rubles, has announced the cessation of real estate sales. The developer was on the verge of bankruptcy due to gross errors and violations in the company's management system. According to media reports, we are talking about the withdrawal of funds through shadow schemes.

“In a shrinking market, where the solvency of buyers is decreasing, many decisions have to be made faster,” she explained in an interview with Tsargrad. Director of Research at Market Information LLC Svetlana Podchalina. “In general, we can say that the construction market is experiencing a situation similar to what happened in the banking sector.”

But the problem of defrauded shareholders has always been a priority, and during the pre-election period, the government’s attention to it increased even more, VTB Capital analysts indicate in their commentary. At the same time, the company noted that the introduced rules, in particular the ban on receiving payment for apartments before completion of construction and the tightening of requirements for a construction company, significantly change the “economic basis of the sector’s operations.”

Currently, only two financing schemes will be available for developers: their own cash and credit. According to Mrs. Podchalina, it is necessary to take into account that few developers build with their own funds.

“If developers had to finance construction only with their own or borrowed funds, its cost would increase by about 20%,” they point out, in turn. analysts "VTB Capital" . In their opinion, the new rules of the game provide a competitive advantage for large developers “who have established ties with banks, and create the preconditions for large-scale consolidation of the sector.”

Experts are confident that the authorities’ decision will cause serious problems for developers and even bankruptcy in the market. First of all, we are talking about small companies. Further oligopolization of the market will affect not only the cost of new buildings, but also the quality of the housing being built. Oligopoly excludes competition, analysts explain.

“Small developers will most likely leave the market because they will not be able to play by the new rules, primarily due to the lack of funds for construction,” says S. Podchalina . “At the same time, banks, in principle, are very reluctant to lend to even large developers with a long and successful history of existence, and even more so to small developers.”

The rise in prices for new housing contradicts the goals set by the Russian President in the new May decree, he noted in an interview with BFM Member of the Board of Support of Russia Dmitry Kotrovsky . One of the tasks in improving the lives of citizens is the creation of 40 million square meters of affordable housing, so that 5 million citizens could improve their living conditions. “This does not correlate with each other at all,” he argues. “PIK” occupied more than 30% of the market, but it is not yet able to cast a shadow over the entire market and adjust absolutely all participants to its liking.”

According to the expert, only a major player will be able to determine the margin that will ultimately allow the final cost of the product to be formed. “I don’t imagine it’s possible for other market participants, especially those working in the regions, to keep up with this opportunity,” concluded sir Kotrovsky .

True, the consumer will not feel all these negative phenomena immediately; for some time the market will exist by inertia.

“In 2018-2020, there will most likely be an overstocking of the market, as many developers tried to start construction of projects under development according to the old scheme,” predicts S. Podchalina. “At the same time, the required volume of demand from buyers is not observed. First of all, such overstocking will affect Moscow and the Moscow region."

According to her, as a result, housing prices will not rise in the next year and a half.

“In the current situation, it is very difficult to plan even two years, because the market will change, its relief and landscape will change,” the expert believes. “What we get in the future will depend on how it changes and how stable it remains.” .

So far there are no prerequisites for a rise in prices, and first of all, because there are no prerequisites for an increase in domestic effective demand. As Tsargrad has already reported, while the troubled Urban Group is undergoing an external audit, experts are wondering who and the developers will pick up the “orphaned” projects. Among those to whom the developer turned for help are Ingrad, PIK and Granel.

However, the expert community has expressed doubts about the developers’ interest in saving the Urban Group. In the absence of demand, market positions are shaky, and there is a minimum of people willing to take on new risks in conditions of instability.

Andrey Komissarov, head of the Komissarov and partners":

Now developers will be prohibited from raising funds from equity holders directly, and banks will finance projects under construction. On December 21, 2017, Prime Minister Dmitry Medvedev approved a roadmap for the transition from shared housing construction to project financing, developed jointly by the Ministry of Construction, the Ministry of Finance, AHML and the Bank of Russia on behalf of Head of State Vladimir Putin. The program of events is planned to be implemented until 2021.

Government officials explain the innovation by the need to finally solve the problem of defrauded shareholders: despite the tightening of requirements for developers under Federal Law 214, projects under construction continue to be “frozen”, and investor funds are used for other purposes. Statistics from the Prosecutor General's Office on violations in the field of shared-equity construction are disappointing: the number of registered crimes from 2016 to 2017 increased by 20%: from 511 to 634 precedents.

What is the essence of the changes?

Unlike shared construction, in which the developer attracts “free” funds from citizens, project financing involves the provision of bank loans. In the “developer-buyer” scheme, an intermediate link will appear - a bank, which will accumulate invested money in accounts, manage financial flows, and monitor the activities of the developer until the completion of construction of the facility.

The buyer's risks are transferred to the financial institution. If construction deadlines are missed or the developer goes bankrupt, the invested money will be returned to the investor, and the property can be transferred to a more reliable developer.

The very opportunity to place shareholders’ money in escrow accounts has been provided to developers since July 1, 2017 (Articles 15.4–15.5 No. 214-FZ). Within 3 years, the developer will have a choice - to use a new method of financing or enter into equity participation agreements. It is expected that after 2021 the condition will become mandatory - shareholders will not pay the developer directly, the funds will be deposited by banks until the facility is put into operation, and construction will be carried out at the expense of the personal funds of construction companies and money received from banks, including for targeted funds. loans.

The Ministry of Construction's plan will be implemented gradually - in several stages. In 2018, it is planned to develop laws and regulations aimed at regulating the introduction of project financing mechanisms. Changes will be made to the law on real estate registration and deposit insurance individuals, bankruptcy law and tax code, regulations of the Central Bank. First, the innovation will be “tested” on voluntary program participants, and the “point of no return” for the shared-equity construction reform, or its actual replacement with project financing, according to the plan, will be July 1, 2019.

How will the changes affect market participants?

The upcoming reform in the field of shared construction has excited market participants. Not only developers are skeptical about the innovations; burned investors fear that there will be pitfalls here too. An anonymous survey was conducted on the RIA Real Estate website in order to identify public sentiment. Only a fifth of voters fully support the ban on shared-equity construction, 50% of informants are categorical, another 24% are concerned about a possible jump in housing prices.

Developers may not understand the meaning of radical innovation against the backdrop of a series of already introduced tightening changes to the law on preschool education recent years. Indeed, since July 1, 2017, the requirements for developers have become stricter: in a number of cases, the developer is already unable to accept money from equity holders. In particular, if it is on the register of unscrupulous developers, is in the process of liquidation or bankruptcy, and has debts on taxes and fees exceeding 25% of the book value of assets. The size of the authorized capital has increased significantly from 10,000 rubles to tens of millions, depending on the volume of construction. Appeared Single register developers and a special fund for the protection of the rights of participants in shared construction. If, under current conditions, developers are deprived of interest-free investments from shareholders, only large financially stable construction organizations that have previously faithfully fulfilled their obligations to shareholders will remain on the market. The Central Bank can give small and medium-sized companies a chance to stay on the market if it offers acceptable rates on long-term loans, for example, around 5-6%.

The main concern of buyers is the increase in prices for apartments in new buildings. The consequence of the ban on shared construction of real estate will be the loss of the advantage of advance purchase, when at the excavation stage it is possible to purchase housing 20–30% cheaper than the final market value. In addition, developers will be forced to transfer the costs associated with the new financing procedure onto the shoulders of the buyer, including the costs in the cost of housing. On the other hand, banks bear all the risks, and the buyer risks nothing.

Credit institutions only benefit from the new rules - due to an increase in lending volumes.

Perhaps, in order to prevent mass bankruptcies of construction organizations and rising housing prices, the legislator will pay attention to Foreign experience and will provide for the possibility of developers receiving money in parts from escrow accounts as construction work is completed, and interest on loans will be paid after the facility is put into operation.

A buyer who wants to invest in shared construction had better hurry up and do it before the reform. Those who have already signed a share participation agreement will not be affected in any way by the changes, since the law does not have retroactive effect.

Select the fragment with the error text and press Ctrl+Enter

Denis Artemov, senior lawyer at the law firm Via lege, tells the Novostroy-M portal about the main changes to the Federal Law “On participation in shared construction of apartment buildings and other real estate…” dated December 30, 2004 No. 214-FZ, introduced by Federal Law dated 29 July 2017 No. 218-FZ.

Introduction

On November 30, 2017, Chairman of the Government of the Russian Federation Dmitry Medvedev, during an interview with Russian television channels, called for abandoning shared construction in favor of mortgages, regarding such agreements as a legacy of the underdeveloped housing market, “rudiments of a previous era.”

Already on December 25, 2017, a “road map” was published on the official website of the Government of the Russian Federation for a gradual transition from equity financing of construction to the use of escrow accounts and lending to developers.

The implementation of the action plan includes three main stages:

• preparatory (until June 30, 2018), which consists of creating a regulatory framework for the transition to a target financing model;
• transitional (from July 1, 2018 to July 30, 2019) - concluding agreements for participation in shared construction both using the mechanism of escrow accounts and/or special accounts, and with raising funds under agreements for participation in shared construction directly with the developer using existing mechanisms for protecting the rights of shareholders;
• final (from July 1, 2019 to December 31, 2020) - transition to concluding all agreements for participation in shared construction using the mechanism of escrow accounts and/or special accounts.

These events became the subject of lively discussions about the future fate of the institution of shared construction.
Perhaps such a radical solution to the problems of shared construction is pre-election rhetoric - the next presidential elections of the Russian Federation will take place in March 2018 and the party in power needs to demonstrate activity on the most pressing social problems.

After all, it will be very difficult to create a worthy alternative to the shared participation of citizens’ personal savings in construction.

Equity participation, which essentially represents interest-free financing for the developer, is beyond any competition for developers in terms of “ease of use.”

Nevertheless, legislators have taken a course towards tightening regulation and gradually reforming the institution of shared construction, which involves corresponding changes in federal legislation.

The Federal Law “On a public law company for the protection of the rights of citizens - participants in shared construction in the event of insolvency (bankruptcy) of developers and on amendments to certain legislative acts of the Russian Federation” dated July 29, 2017 No. 218-FZ was adopted, containing many amendments to 214 -FZ.

The amendments come into force from January 01 and July 1, 2018. Many of them are of a fundamentally new nature. The novelties have seriously tightened the requirements for construction companies, the construction process and the use of funds received from citizens. Moreover, if the “road map” is implemented, these innovations are only the beginning of a galaxy of amendments to 214-FZ.

But already now, many developers argue that fundamental changes will significantly complicate the work of builders, will reduce the number of construction companies (primarily small and medium-sized developers), will reduce the volume of housing construction and, as a result, will lead to an increase in prices for residential real estate.

Here it would not be amiss to remember that since its adoption, 214-FZ has been changed to one degree or another 16 times, and each new attempt by legislators to make the construction market more transparent and secure has caused similar sharp criticism from developers, but in the field of development Large, medium and small developers are still operating.

The truth is that previous attempts to reform 214-FZ could not solve the problem of defrauded shareholders. How much will innovations really “work”, how far will they actually go, and how positive or negative will their work be?

When will innovations start working?

What immediately attracts attention is that most of the changes will affect only new buildings, the construction permit for which was received after July 1, 2018. That is, the legislator, obviously, based on the seriousness of the novelties, assigned construction companies whole year to prepare for changing work conditions.

On the other hand, something similar already took place at the time of the adoption of 214-FZ itself in December 2014, when its effect was extended to facilities for which construction permits were obtained after April 1, 2015.

Back then, many developers simply received permission to build a number of objects before the “X” date, after which they quietly completed construction for several more years, without being subject to innovations.

There is a high probability that many developers will implement a similar scenario now.

It is noteworthy that many new buildings will not be affected by the innovations of 214-FZ at all. We are talking about those houses that are built according to the scheme of housing construction cooperatives (HCS) or housing savings cooperatives (ZhNK), as well as under preliminary agreements for the purchase and sale of apartments. The new version of the law still does not prohibit such schemes for raising money for construction, and here the legal relationship “developer-citizen” 214-FZ does not regulate at all.

Interestingly, the novelties deprived developers of the opportunity to produce or acquire securities, excluding shares. Since bills of exchange are one of the types of securities, the new edition of 214-FZ has finally done away with the “bill scheme” for financing new buildings.

General requirements for the developer

Consolidating many new requirements for the developer, the legislator introduced a new concept - “specialized developer”.

From now on, only a business company can be a specialized developer - corporate commercial organizations in the form of limited liability companies or joint stock companies. Such developers as non-profit, public organizations, sports, music, educational and scientific institutions.

Since the developer must perform the construction function, and, according to the new legal requirements, cannot perform other functions, this rule seems logically justified.

The developer must have at least 3 years of experience in the market for the construction of apartment buildings (as a developer, technical customer or general contractor). It is mandatory to have permits to put into operation at least 10 thousand square meters of apartment buildings.

This innovation significantly complicates the entry of new construction companies into the market. Now the organization must first “prove itself,” that is, acquire a certain length of service and work experience, and only then obtain the right to attract citizens’ funds for the construction of apartment buildings.

The novella will also reduce the number of small construction companies that already exist, but “do not reach” the specified criteria.

Supervisor, Chief Accountant and other individuals of the developer’s management bodies should not have a criminal record for crimes in the field economic activity or against the state authority, to have been previously (less than 3 years ago) brought to subsidiary liability for the obligations of a legal entity, to have been insolvent (bankrupt). The same requirements apply to the beneficiaries of the developer.

In the project declaration published for public viewing, the developer will be required to indicate information about the compliance of its managers with the requirements of the law.

Special attention is paid to the increased information openness of the developer. On its official website, the developer will be required to post interim financial statements in full no later than 5 calendar days after the end of the corresponding reporting period, as well as the annual accounting statements and auditor’s report no later than 120 calendar days after the end of the corresponding reporting year.

The developer will be required to post the same information in the Unified Housing Construction Information System; such an obligation arises from January 1, 2018.

It is important to note that such a Unified Information System has already started working (https://nash.dom.rf/).

Financial stability of the developer

A number of innovations are aimed at increasing financial reliability developers.

The new edition of 214-FZ abolished the previously existing requirement for the minimum amount of authorized capital, depending on the area of ​​the facilities under construction (from 2.5 million rubles with a total area of ​​up to 1.5 thousand square meters, up to 1 billion 500 million rubles with a total area more than 500 thousand sq.m).

However, now the developer’s own funds must be at least 10% of the planned cost of the project.

A new requirement has been introduced for the minimum balance of funds in the account of an authorized bank on the date of sending the project declaration, which should be 10% of the project cost of construction.

Obligations of the developer not related to construction apartment building, should not exceed 1% of the project cost of construction as of the date of sending the project declaration to the authorized body. The developer's maintenance costs cannot exceed 10% of the project construction cost.

Also, the total amount of advance payments should not exceed 30% of the project cost of construction.

According to the new edition of 214-FZ, the developer cannot participate in or create commercial and non-profit organizations. Thus, an attempt has been made to exclude the creation of construction holdings, which in practice not so much contribute to the developer’s ability to stay afloat, but rather simplify the withdrawal of funds from a problematic developer beyond the reach of defrauded shareholders and law enforcement agencies.

This is especially true for foreign offshore legal entities affiliated with the developer.

However, it seems that this prohibition in practice can be easily circumvented by registering subsidiaries under the name of “our own” individuals who are formally not connected in any way with the developer organization.

The developer cannot attract loans and borrowings, with the exception of targeted ones, and the developer himself cannot provide loans or advances.

As already noted, from now on the developer does not have the right to issue bonds and other securities, except for shares, or to purchase securities (including bills of exchange).

Construction requirements

One of the main innovations was the rule according to which the developer does not have the right to simultaneously construct apartment buildings under several construction permits and has the right to attract money from shareholders only for the construction of apartment buildings specified in one permit.

Now the principle works: “1 developer = 1 building permit.”

This innovation is aimed at suppressing the practice when the developer completed construction of one apartment house at the expense of funds raised for the construction of another residential building. The final residential building in this “vicious” chain had an increased risk of becoming a problem property.

According to the new edition of 214-FZ, the developer has the right to attract funds from citizens only under one construction permit.

In terms of organization accounting the developer will be obliged to ensure that records are kept of funds paid by participants in shared construction separately for each apartment building.

The developer will not be able to carry out activities not related to attracting funds from shareholders and the construction of the corresponding facility. Such concentration of the developer’s efforts on the construction process, according to the legislator, will contribute to fast and high-quality construction, as well as minimizing the risks associated with the financial responsibility of the developer in other areas of business, which ultimately negatively affected the financing of the development.

However, in reality, even before, the majority of developers practically did not “break away” from their main activities, mastering only types of activities related to construction (registration of preschool educational institutions, property rights, turnkey renovation of completed apartments, etc.).

A significant step in regulating the technical parameters of construction is the mandatory presence of an examination of design documentation in all cases, even in low-rise construction.

The lack of expertise in this area (mainly the field of suburban construction) often led to significant violations of building codes and regulations.

Compensation fund

The developer will be required to make contributions to a specialized compensation fund in the amount of 1.2% of the cost of each DDU.

The non-profit organization “Fund for the Protection of the Rights of Citizens - Participants in Shared Construction”, established by Decree of the Government of the Russian Federation of December 7, 2016 No. 1310, is now being transformed into a public law company.

The fund's funds are intended to complete the construction of problem facilities or to pay monetary compensation to shareholders. Mandatory contributions to the compensation fund replaced the previously existing methods of securing the developer's obligations in the form of a mandatory bank guarantee or compulsory civil liability insurance.

However, the developer can still use them voluntarily.

It is worth noting that the previously practiced system of compulsory developer liability insurance has not justified itself in practice. According to statistics, there has not been a single case when a problematic house or residential complex was completed with insurers’ money.

In this regard, the legislator’s decision to abolish this method of securing the developer’s obligations seems correct.

At the same time, the amount of 1.2% of the price of the DDU is quite consistent with the amounts that developers paid to insurance companies.

Already on October 20, 2017, the public law company “Fund for the Protection of the Rights of Citizens - Participants in Shared Construction” began its work.

It is impossible not to agree that the new mechanism will indeed provide additional guarantees to shareholders; such a system is more reliable than the current one. The funds already generated in the fund are much easier to use than a hypothetical insurance compensation or bank payments.

At the same time, legislators remained true to themselves and to the previously taken general course towards self-regulation of certain areas of business, placing the responsibility for financing the work of the fund on the participants in shared construction - developers and citizens.

Consistently introducing a policy of planned financing, legislators, as an alternative to the financial burden of creating a fund, provided for the developer to switch to using escrow accounts.

It is important to note that the law defines a maximum amount of compensation, which is defined as the product of the total area of ​​all residential premises to be transferred to a citizen participating in shared construction (but not more than 120 sq.m.) and the average market value of 1 sq.m. meter in the corresponding subject of the Russian Federation, the value of which is determined in a specific period by the federal executive body.

Thus, the owners of luxury apartments, whose footage often exceeds 120 square meters, were not fully protected. m.

In addition, the question arises of the relationship between the market value per square meter of a particular developer and the “average market value”, which is determined by the federal executive body and may be significantly lower than in reality.

Banking control

The natural result of the banking lobby was the granting of broad powers commercial banks, the list of which will be specifically determined by the Government of the Russian Federation.

The developer is obliged to open an account only with an authorized bank, and he has the right to have only one current account through which all payments for construction will be made.

All key construction participants, such as the developer, technical owner and general contractor, must have accounts in one authorized bank.

The most controversial innovation was the rule according to which special banking control will be carried out for each payment by the developer. The bank will check the DDU, other construction-related contracts, acceptance certificates for completed work, acts of acceptance and transfer of goods, invoices, etc. In case of detection of fictitious transactions and other violations of current legislation, the bank will be obliged to inform the supervisory authority.

Granting banks, which are commercial organizations, supervisory powers along with those already provided for by 214-FZ by the authorized executive body of the constituent entities of the Russian Federation is indeed an unexpected decision.

Wide interaction between some commercial structures (developers) and other commercial structures (banks), especially when the former are made dependent on the latter, almost always provides a wide field for abuse and corruption.

At the same time, it cannot be denied that such double control over the financial flows of builders reduces the risk of withdrawal of assets from construction and subsequent deliberate bankruptcy of the developer.

Finally, bank control can be regarded as a kind of test of the ability of banks to control the shared construction market.

Let us remind you that according to the roadmap for reforming the institution of shared construction, as early as July 1, 2019, a complete transition to the use of escrow accounts and/or special accounts is expected. The latter fact also causes a lot of controversy about the nature of legislative changes.

In particular, it is indicated that the main beneficiary (beneficiary) from the introduction of escrow accounts in the primary real estate market is not developers (due to increasingly complex requirements for their work) and not participants in shared construction (although for them the risk of investing in construction is reduced, but there is a high probability of an increase in prices for primary real estate), and directly banking structures.

For example, a bank issues a mortgage loan to a participant in shared construction for the corresponding high interest rates. Then, when a participant in shared construction purchases an apartment, the bank returns the same money to the escrow account. And then the bank again lends the same money to the developer to build a house, and again at interest. At the same time, the developer himself, under the terms of the loan agreement, falls under the full control of the bank.

Thus, without actually “taking out” money from the bank, the credit institution has the opportunity to receive interest from both the participant in shared construction and the developer.

Conclusion

The changes made to 214-FZ can be characterized as significant. New requirements have emerged for the creation and work of developers, construction financing and the process of creating apartment buildings, and a new way to ensure the developer’s obligations has been created in the form of a public law company “Fund for the Protection of the Rights of Citizens - Participants in Shared Construction”.

The obvious result of the innovations in practice will be the exit of the majority of small and medium-sized construction companies from the market, many of which will not be able to work under the new rules. Such companies will either be forced to switch to housing cooperative and housing cooperative schemes, preliminary agreements, or transfer their construction sites to larger developers who will share the freed potential.

Banking structures are already receiving important preferences, with which developers will be forced to work, and with whose rules of the game developers will be forced to reckon. Banks may receive even greater benefits in the future during the implementation of the Government’s “road map”.

The use of escrow accounts at the current moment is not mandatory, which means that the institution of shared participation in construction itself continues to work.

At the same time, a general course has been taken to replace equity participation with bank lending and other forms of financing.

Obviously, in this case, difficulties may arise in implementing another government policy - creating an affordable housing market. After all, the monopolization of the construction market by large development companies, the complication of their work due to new legislation and banking control, the reduction of supply due to the withdrawal of many small and medium-sized developers from the market, against the backdrop of increasing consumer demand, can lead to a significant increase in prices for apartments in residential buildings under construction.

However, only the practical application of the considered legislative innovations in life can clearly answer this and other important questions.

Publication date January 11, 2018

Accepted grandiose amendments into the legislation on shared-equity housing construction (Federal Law of July 1, 2018 No. 175-FZ "").

For those developers who are already building and completing housing at full speed, almost nothing will change, but bank control over their accounts will become stricter. But developers who are just getting a building permit, on the contrary, are in for big changes.

Firstly, they must choose the most suitable work format for them - through escrow accounts or through the so-called “project financing” (Part 1, Article 15.4 of the Federal Law of December 30, 2004 No. 214-FZ "", hereinafter - Law No. 214-FZ). This choice is allowed only for the next 12 months: any project in which the first DDU will be submitted for registration to Rosreestr in a year will be built, without alternative, only according to the escrow account scheme.

Project financing is the strictest control of the bank over the use of money from the developer’s account - it can be spent exclusively on construction, it is allowed to transfer it only after checking the “supporting” documents (,). At the same time, the developer, technical customer and general contractor must open accounts for construction payments in the same bank; if the developer has several building permits, a separate account is opened for each of them (,). If the developer “goes” to another bank (this is his right), then both the general contractor and the technical customer are obliged to leave after the developer and transfer all the money to the new bank.

If the payment proposed by the developer is not confirmed by acts, TTN, invoices and other documents, if it exceeds the expense limit or advance limit, or otherwise violates the requirements, the bank is obliged to refuse to carry out the transaction on the account (,). By the way, you can only cash out money to pay salaries to builders.

Developer transactions that circumvent these rules can be challenged in court - at the request of the Fund for the Protection of Shareholders and the shareholders themselves or the supervisory authority ().

If the developer prefers to work through escrow accounts, then his life will become much easier: in this case, he will not even need to pay contributions to the Shareholder Protection Fund, much less report to the bank, comply with financial stability standards, have construction experience and the necessary stock of own money (). He is even allowed to have debts and tax arrears, and moreover, to issue bills and issue other securities ().

The mechanism of operation of escrow accounts in “topping up” is as follows. The shareholder enters into a standard DDU with the developer, but with the condition of an escrow account, registers it with Rosreestr and deposits into the bank an amount equal to the price of the DDU (). But the developer does not receive a penny of this money: it is entirely deposited (that is, lies untouched) until the very end of construction, and the developer builds exclusively with his own money or with borrowed funds (). By the way, a citizen whom the bank suspects of money laundering or terrorist financing, the bank has the right to refuse to enter into an escrow account agreement, and he will not be able to become an equity holder in principle ().

If the construction of the house is completed successfully, then the developer takes the entire pool of funds in the escrow accounts - but not before the completed house receives permission to put it into operation from the construction supervision and the very first shareholder successfully registers ownership of his property in the Rosreestr; By the way, this is an additional bonus for shareholders, because often they cannot register ownership of their apartment, although they live in it - Rosreestr suddenly “turns out” that the developer has not prepared cadastral documents for the house.

If the developer goes bankrupt, the shareholder has the right to terminate the DDU and take his money. However, he will still have the option to “enter” the developer’s bankruptcy and wait for the completion of his house (Article 201.12-2 of the Federal Law of October 26, 2002 No. 127-FZ “”).

If the shareholder terminates the DDU (for example, due to the developer’s delay), he can again withdraw his money ().

And if a bank goes bankrupt, the shareholder and the developer will simply move to another: escrow accounts are insured in the deposit insurance system for up to 10 million rubles.

• It is prohibited to purchase DDU for cash;
• the managers and beneficiaries of the developer are now jointly and severally liable with the developer for losses caused to shareholders-citizens through their fault. This means that you can apply for losses to these persons immediately and directly - without waiting for bankruptcy, without establishing the insufficiency of the developer’s own funds;
• Developers are no longer required to have their own websites - they must disclose all information, first of all, in the unified housing construction information system (https://nash.dom.rf). Everyone's favorite photos of houses under construction will also be there with monthly updates. This is convenient for shareholders - firstly, it is easier to complain if the information is not complete, and secondly, it will not disappear anywhere if the developer becomes bankrupt or decides to flee to Cyprus with a suitcase of money. True, this norm will only come into effect in October;
• as before, the head of the regional “DDU-supervision” will be appointed and dismissed by governors, however, the candidacy for both entry and exit must be approved by the federal Ministry of Construction of Russia;
• as before, the regional “DDU-nadzor” is obliged to warn Rosreestr that a “defective” developer does not have the right to sell DDU (in this case, Rosreestr blocks their registration). But if for “old” developers such information is transferred to Rosreestr within a day after discovery, then for objects with new, after 01/01/2018, construction permits - depending on the degree of violations - can be sent no later than 1 day or within one to one and a half weeks;
• private housing certificates can no longer be issued (previously started projects are allowed to be completed), and construction through housing cooperatives is allowed only in bankrupt cases and such housing cooperatives to which land for construction has been provided free of charge by the state or municipality;
• It will be possible to build not only under one building permit, but within the limits of several permits at once. Thus, the principle of “one developer – one permit for implementation” actually did not work. True, there remains a ban on the developer’s participation in several agreements on the development of a built-up area, and (or) agreements on the integrated development of the territory, and (or) agreements on the integrated development of the territory, and work on several permits is possible only through escrow accounts and with mandatory deductions money to the Fund for the Protection of Shareholders;
• the amount of information that a developer is required to post online (since October - on his account at https://nash.dom.rf) has increased. In particular, he is now obliged to publish a calculation of the amount of his own funds and financial stability standards (quarterly), as well as the GPZU and a diagram of the planning organization of the land plot indicating the location of the capital construction project, entrances and passages to it, the boundaries of public easements, archaeological sites heritage;
• The period of “excommunication from the profession” has increased - until July 1, it was forbidden to allow people who had stained themselves with connections with bankrupt developers over the previous three years into the “dolevka”, and now the period of “excommunication” has been increased to five years. The three-year period for beneficiaries has been retained, but there will be more beneficiaries of the developer themselves - previously they paid attention only to those who directly or indirectly owned at least a quarter of the shares or shares of the bankrupt developer, but now they will also take a closer look at those who had only 5% shares or shares. The full name, INN and SNILS of such characters must be disclosed by the developer;
• the period for disclosure by the developer of intermediate information has been increased 6 times financial statements(from 5 to 30 calendar days).