Why the new law on shared construction threatens to collapse in the housing market. Cancellation of shared construction: When to expect a rise in housing prices? Has shared construction been banned?
Shared construction was legalized in 2004 in order to streamline the use by developers of citizens' funds in the construction of residential buildings and to protect real estate buyers from unscrupulous builders. Over the years, a number of changes have appeared in the law on shared construction, designed to strengthen control over the work of developers and strengthen the protection of the rights of equity holders. Last changes were passed into law at the end of 2017. Several more will take effect from July 1, 2018. Shared construction: changes from 2018, how shared construction will work from July 1, what you should know about it.
Changes in the law on shared construction from 2018
The authorities are constantly taking measures designed to streamline the construction market and bring it into an increasingly civilized framework. Legislators believe a smooth transition from shared construction to the sale of ready-made apartments will greatly reduce the risks of this market.
The government has long been discussing the need to abandon shared construction and switch to a mortgage method. In December last year, a "road map" was published on the government's website, which included an action plan for the transition to a project type of financing for the construction of residential buildings:
- by July 1, 2018, it is planned to create a regulatory framework for the transition to a new method of financing;
- from July 1, 2018 to July 30, 2019, allow mixed financing of construction - it is possible to use an escrow account or special and directly money of participants in shared construction;
- from July 1, 2019, to attract money for the construction of housing, it will be allowed to use only escrow or special accounts.
Also, lawmakers have developed a law on the protection of the rights of equity holders in the event of a developer's bankruptcy, which introduces many changes to the federal law that come into force on January 1 and July 1, 2018.
Terms of introduction of the adopted changes
At the same time as entering road map on the transition to project financing of the construction industry, legislators have made certain changes to the law on shared construction. Now the amount of own funds and the work of the developer will become more tightly controlled in a number of areas.
Most of the changes will take effect on July 1, 2018. Consequently, developers have enough time to prepare for activities in the changed conditions and to complete the projects they have begun.
It should be noted that the innovations will not affect certain new buildings. These include those in the construction of which the schemes of housing cooperatives are used - housing construction cooperatives. Legislators do not prohibit this, but they this law does not apply.
The measures taken before to protect the rights of equity holders in the form of developer liability insurance proved to be ineffective. Insurers used a large number of tricks to avoid payments for such insurance, not a single building was completed from insurance payments.
Last year, a new organization, the Fund for the Protection of the Rights of Citizens Participating in Shared Construction, was registered to help equity holders. Developers are obliged to deduct 1.2% of the cost of an apartment for each concluded contract to this fund. equity participation.
Money from the compensation fund will be used to complete the construction of unfinished structures, or compensation payments affected equity holders.
General criteria for developers
Requirements for developers in shared construction in 2018 are included in one term “specialized developer”. Among the main new requirements are the following:
- "Specialized developer" will be considered exclusively commercial companies dealing with construction. Any public non-profit organizations, educational, sports and other organizations will not be admitted to construction.
- The developer has at least 3 years of experience in the construction market and obtained permits for commissioning apartment buildings with a total area of 10,000 m2.
- The director, chief accountant and other managers of the developer will no longer be able to be persons with a criminal record, bankruptcy of an individual, or brought to subsidiary liability. Developers will be obliged to place data on the management's compliance with these requirements in the Project Declaration.
- From January 1, 2018, developers are required to place a full and intermediate accounting statements in the Unified Housing Construction Information System and on its official website.
A large number of amendments to the legislation are aimed at strengthening the financial stability of developers.
So, the norm has been canceled minimum amount authorized capital, it will now depend on total area housing under construction. Today the requirement is the following - builders must have their own funds in excess of 10% of the project cost.
At the time of submission of the project declaration in the authorized bank, the developer's special account must have a balance in the amount of at least 10% of the estimated cost of the object.
By the time of presentation project documentation the developer should not have financial commitments that do not relate to construction, over 1%. Maintenance costs are also limited - no more than 10%. Moreover overall size all payments on advances should not be more than 30%.
Recent legislative amendments prohibit developers:
- Issue or buy securities unless it is your own stock. This will close the bill scheme for financing construction.
- Attract or provide loans for construction in addition to the target.
- Create or participate in commercial and non-profit organizations, through which money was often withdrawn from defrauded equity holders.
Another major change in 2018 is the introduction of an escrow account, where the money of participants in shared construction will be transferred. The developers will be able to use the money only after the delivery of the apartments to the purchasers. transfer deeds.
Consequently, after the entry into force of changes in legislation cash flows developers will come under the control of authorized banking organizations.
All changes in the law on shared construction have both advantages and disadvantages. Strengthening control over the real estate market, reducing risks for potential equity holders can be considered as advantages. By cons - the potential rise in prices for apartments in new buildings. How it actually turns out will be clear in less than a month.
The State Duma held hearings on amendments to the law on shared construction. MPs have proposed a number of measures to stimulate developers to quickly abandon sales under the preschool education system
Photo: Evgeny Razumny / Vedomosti / TASS
From July 1, 2019, Russia will completely abandon the existing system of attracting citizens' money to housing construction. This is the period of the transition period from shared construction to project financing, President Vladimir Putin during a straight line on June 7. At the end of May, the Deputy Prime Minister for Construction and regional policy Vitaly Mutko that a phased transition to project financing will take place by 2020-2021.
To solve the problems of defrauded equity holders, Russia must go to "civilized methods of housing construction without attracting funds from citizens" and abandon equity participation agreements (DACs), the president emphasized. The civilized way is attraction bank loans for the construction and use of escrow accounts, where the money of equity holders is kept until the end of the construction of the house. With this money, the developer will be able to open a credit line in the bank and use the funds only to finance the construction.
Hearings in the State Duma
On June 7, the State Duma held hearings on amendments to the law on shared construction. The hearings were attended by deputies, representatives of the Ministry of Construction of Russia, developers, banks and public organizations.
Chairman of the State Duma Committee on natural resources, property and land relations Nikolai Nikolaev declared the need to increase the role of the state in construction and control over it. State Duma Deputy Vladimir Zhirinovsky also spoke about the need to transfer control over the construction and sales of housing to the state. According to him, citizens should receive only ready-made housing.
“The market for shared construction should be transparent, for this it is necessary to move away from the boiler construction method. We need to stop shared construction today, otherwise the pyramid will continue to grow and someday collapse, ”said Vladimir Yakushev, Minister of Construction and Housing and Utilities of Russia.
Not all developers will remain on the construction market after the tightening of requirements for them and the transition to new scheme financing of housing, the market will be cleared, said Kirill Kholopik, chief of staff of the National Association of Housing Developers (NOZA). “Adventurers who built at random, without calculating the financial model, will leave, since they will not be able to pass the project evaluation in the bank. Also, non-professional companies, of which there are many, will leave the market. Go to project financing housing construction in Russia may lead to a temporary drop in housing commissioning in Russia, ”the expert is convinced.
Problems of equity holders
“In total, we have over 1.1 million agreements on shared construction in the country, and the amount of money that is there is 3.4 trillion rubles. These are huge funds, and they are not always effectively used by developers, ”said Vladimir Putin during a direct line.
The number of problem houses, where construction is now suspended, is growing in Russia. “If on January 1, 2018 there were 836 such objects, or 1101 houses, now there are already 842 objects, or 1261 houses,” Yakushev said. In the data residential complexes equity holders who are included in the register of victims. The growth is taking place despite the fact that some of the houses are being completed: since the beginning of the year, 67 long-term construction projects have been introduced, 15 of them have been compensated, he stressed.
Novels of legislators
The government and legislators have prepared two large groups of amendments for the second reading to the law on shared construction. They relate to both restrictions for developers in the transition period and issues of banking support for construction, Yakushev explained. The amendments to the legislation will be finally adopted on June 27, he said.
A number of amendments are already in the second reading. However, at the hearings, novels were also announced, which the deputies will consider in specialized committees. From July 1, 2018, developers can use escrow accounts on a voluntary basis, and from July 1, 2019, it is mandatory for all projects for which an agreement was concluded after the creation of the Fund for the Protection of the Rights of Shareholders.
Legislators also proposed to significantly increase fees from developers to the Fund for the Protection of Shareholders ( compensation fund), which must ensure the completion of housing in the event of the developer's bankruptcy. Now the tariff is 1.2% of the cost of each DDU. From October 1, deductions will increase to 3%, and from January 1 - up to 6%, Nikolai Nikolaev said. In his opinion, this will become a method of economic incentives for developers to switch to escrow accounts. The fund will operate until June 1, 2019.
The deputies also proposed to insure the funds of equity holders on escrow accounts in the Deposit Insurance Association (DIA), similar to bank deposits... The so-called fireproof amount will be 10 million rubles. It is also proposed that one current account should be opened for each building permit so that the expense and transfer of money for the construction site become completely transparent, Nikolayev explained. The money of equity holders from special accounts will be transferred to the developer after the keys are issued to the equity owner, before that he can use his own and borrowed funds, the deputy added.
Legislators also proposed to reduce the regulatory burden of developers who switched to escrow accounts. It is proposed to prohibit the developer from conducting operations not related to the implementation of housing construction projects. The deputies insist on toughening the requirements for developers: the reason for refusing to issue an opinion on the compliance of the developer may be a delay in the commissioning of an object for three months or more.
The mitigation of requirements provided for in the amendments will help make the transition smoother, developers and realtors said. "At the moment, it is much more important for representatives of the construction industry, the banking sector and market regulators to develop a common understanding of how and on what conditions credit lines will be opened, whether the interest rate on loans for construction will be reduced or general market," commented the director of marketing and product development GC "A101" Dmitry Tsvetov.
A smooth cancellation of shared construction will not be painless for the market, but a radical one is even risky, says Dmitry Skvortsov, deputy chairman of the board of directors for legal affairs of the NDV Group. In his opinion, potential buyers will expect a rise in the cost of housing by an average of a quarter, and developers - inevitable bankruptcies. “If the bank decides whether the developer will stay afloat or not, then those who do not receive full funding for their project will be forced to leave the business. As a result, the number of Moscow developers may be reduced to a couple of dozen, if not to a few, ”Skvortsov believes.
What has already been adopted for the second reading
The most significant change is that from July 1, 2018, banking support for housing construction will be introduced, which also applies to those new buildings that are already under construction. Developers will not be able to receive money directly from buyers. They will be transferred to the developer's current account with a credit institution authorized by the Central Bank. Direct sales will be possible only in houses that have been commissioned.
Requirements are established for the size of the developer's own funds and his funds deposited in an account with an authorized bank (at least 10% of the project cost of the shared construction object), follows from the document. The list of operations on which it is possible to spend the funds of buyers received on the account will be determined by a special government act on the procedure for banking support.
The government has facilitated the conditions for attracting funds from equity holders for developers of complex development projects for the territory. From July 1, developers will be given the opportunity to attract cash equity holders for the construction of houses under several permits at once, if the construction takes place on the same site or within the boundaries of the territory of integrated development, it is indicated in the document.
It is assumed that developers who have entered into an agreement on the development of a built-up area, an agreement on the integrated development or development of the territory before January 1, 2018, will be able to complete construction without taking into account the requirements that come into force on July 1. The amendments will create conditions for ensuring the stability of the housing market, follows from the document.
Developers are invited to provide the right to attract targeted loans of the main company for the construction of apartment buildings and other real estate objects in the amount of not more than 20% of the design cost of the construction of objects for each issued building permit at a rate not exceeding the date of conclusion of the target loan agreement key rate Bank of Russia, increased by 2 p.p.
Construction organizations will be able to receive money from equity holders for the apartments they have bought only after the houses are handed over. From July 1, amendments to the federal law"About participation in shared construction ...". The main change in it is the emergence of escrow accounts. Banks will keep the money received from the sale of apartments on them until the end of construction. And give builders loans at interest for a specific project at home.
Thus, the buyer of the apartment enters into an agreement with the developer for the purchase of an apartment in a new building.
"This agreement will be registered with Rosreestr," Nikolai Alekseenko explained the new system. general manager Rating agency construction complex... “In this case, the funds will not go to the developer, but will be placed in the bank on a special account.”
The developer will receive them only after the completion of construction. So the funds of equity holders will be protected from waste. It is assumed that with the transition to a new financial model developers will invest in construction more of their own funds. Their minimum volume is prescribed by the new law. Developers are required to reserve 10 percent of their own funds before construction begins. This may be the profit received from the implementation of already implemented projects.
And the more a developer invests in the business, the less bank loans he will need. The cheaper, which means that his apartments will be more competitive on the market.
It is the borrowed money that will later become the main source of financing after the abandonment of shared construction in Russia.
So that money during construction is not diverted for other purposes, a ban has been established on the conduct of projects not related to housing construction, the introduction of compulsory bank support for projects and tightening control over the spending of funds by the developer.
Not all developers will immediately switch to escrow accounts from July 1. V mandatory this mechanism is introduced for those objects for which the contract for participation in shared construction with the first shareholder will be presented at state registration after July 1, 2019.
Features of the application of legislation experts "RG" in the heading "Legal advice". You can ask them your questions
"Escrow accounts will remain a rarity in the near future," says Maria Litinetskaya, managing partner of Metrium. In addition, due to the large number of projects that have already been launched on the market, buyers will be able to find an apartment that can be bought without using escrow accounts for at least two more years, says Alexander Khrustalev, head of NDV Group.
Another thing is that for the buyer of an escrow account it is just more profitable than the current procedure for shared construction. Market participants say that the new financial scheme guarantees buyers unprecedented security in transactions in the real estate market with housing under construction. In fact, several insurance mechanisms are provided at once, which are launched depending on the situation that has arisen.
"If the bank has problems, for example, revocation of the license, the DIA guarantees the equity holders a refund of up to 10 million rubles," says Nikolai Alekseenko. will complete the project ".
The changes will not only guarantee a refund, but will also speed up the process. By the end of the year, changes may be made related to the order of bankruptcy of developers.
"The procedure for withdrawing an object for completion will be accelerated," notes Alexander Khrustalev. Now bankruptcy can last for several years, people do not receive their money, unfinished projects are not transferred to new construction companies for completion. The new mechanism could provide a refund or transfer of houses to new construction companies within three to five months, Khrustalev said.
Additionally, the State Duma adopted amendments that will allow to get away from the "boiler" principle in construction. It is one of the main reasons for the appearance of long-term construction and will prevent the misuse of funds. construction organizations that will contribute to their financial stability. The regulation "one building permit - one company" was also changed. Developers can now use multiple building permits if the projects being implemented are part of the same project.
Shared construction can be completely banned in Russia, and this topic was discussed at a meeting with the president. According to the source of Vedomosti, the head of state himself proposed to leave unfinished sales and do it almost in 2018.
Shared construction may be banned altogether. According to Vedomosti, this possibility was discussed at a meeting with the president. Moreover, as one of the sources close to the participants in the meeting said, the head of state suggested that the head of state proposed to move away from the sale of unfinished construction projects almost in 2018.
Starting next year, the market for shared construction is already awaiting global changes, which should primarily protect equity holders, but they do not cause delight among developers. Apartment developers will not be able to get money from buyers until they rent out their homes. Contributions will be kept in special accounts in banks, and companies will build houses either on credit funds, or on your own.
These amendments were criticized by many. There were opinions: this could put an end to shared construction.
Business FM asked market participants, buyers and experts what would happen if the purchase of unfinished construction was completely banned. The deceived shareholder of the Terletsky Park residential complex Nikita Zhevchenko believes that the state thus wants to absolve itself of responsibility:
Nikita Zhevchenko shareholder of the residential complex "Terletsky Park"“First of all, there is no shared construction anywhere in Europe. We have it. Why do we have it? Because we have high rates on a mortgage, that is, therefore, the state came up with such a method. Instead of a low mortgage, they came up with shared construction, so that this money, which is interest-free in fact, which was with low interest, which banks give in Europe, here are given by equity holders. But in this case, if the state thus resolved the issue with the development of the construction market, that is, they must somehow protect these investments. Otherwise, it turns out that you kind of wash your hands and at the same time it seems like a boom in construction is underway but you have nothing to do with it if something happens. As a result, unscrupulous developers took advantage of this, those who do not build, but withdraw money. Accordingly, of course, the state bears direct responsibility for this. And now they are trying to somehow adjust it in such a way as to patch these holes. "
It will be difficult for a business without the possibility of shared construction, especially in the regions, says Dmitry Kotrovsky, a board member of Opora Rossii:
Dmitry KotrovskyMember of the Board of Opora Rossii“First of all, this will undoubtedly lead to an increase in the cost of housing, which, it seems to me, completely contradicts May decrees, in which it was said that plus 40 million square meters of affordable housing should appear, so that 5 million Russians could improve their living conditions... This is absolutely not correlated with each other. PIK took more than 30% of the market, but not everyone is able to cast a shadow over the entire market and adjust absolutely all participants to themselves. The scalability that the PIK group of companies has, of course, will allow them to minimize the cost. Accordingly, to determine the marginality, which will ultimately allow to form the final cost of the product. I cannot imagine it is possible to keep up with such an opportunity for other market participants, especially those who work in the regions. Still, if we are talking about the fact that 5 million Russians should get affordable housing, how can this be done in all 85 regions, taking into account the fact that the developer will first need to take money somewhere, prove to the bank that the project is expedient and relevant , and then add to the cost of the price a load that is comparable to the value of money, while you will be obliged to take out loans. It's a mystery to me - how can such two opposite solutions be elevated to the rank of a state task. I don't know how this can be done. "
Experts believe that if the sale of real estate is banned during the construction phase, prices for finished housing will skyrocket. Here is what Sergei Lobzhanidze, director of the BNmap.pro analytical platform, says:
Sergey Lobzhanidzedirector of the analytical platform BNmap.pro“In addition to the fact that this will automatically lead to an increase in pricing at the stage of final construction, because now the average growth during construction, for example, in Moscow, is from 18% to 27%, the credit load will be added to this. Added to this will be VAT, which will need to be paid upon receipt of the property, so I think that here up to 50-60% can be increased in price, only based on the increase in volumetric costs for products. This is about the price. As for how popular it is, I can say, as an example, that at the end of 2017, we have about 54 thousand transactions with individuals, including apartments-apartments, within the borders of Moscow and New Moscow, within the framework of equity participation agreements on the transfer of rights based on the purchase -sales. Secondary market - about 120 thousand [transactions], that is, in principle, almost half - this is a very large percentage. "
It is not reported whether any decisions were made regarding the prohibition of shared construction. The publication only notes that as an option, the possibility of selling only finished housing from 2020 was also discussed.
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 the shared construction of apartment buildings and other real estate objects ..." dated December 30, 2004 No. 214-FZ, introduced by Federal Law dated 29 July 2017 No. 218-FZ.
Introduction
On November 30, 2017, the Prime Minister of the Russian Federation Dmitry Medvedev, during an interview with Russian TV channels, called for abandoning shared construction in favor of mortgages, regarding such agreements as a legacy of an underdeveloped housing market, "Vestiges of a previous era."
Already on December 25, 2017, on the official website of the Government of the Russian Federation, a roadmap was published for the 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), consisting in the creation of a regulatory framework for the transition to a target financing model;
- transitional (from July 01, 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 equity holders;
- final (from July 01, 2019 to December 31, 2020) - the transition to the conclusion of all contracts 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 cardinal solution to the problems of shared construction is pre-election rhetoric - in March 2018, the next presidential elections will take place and the ruling party 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 is essentially an interest-free financing of the developer, is out of any competition in terms of "ease of use" for developers.
Nevertheless, the legislators have taken a course towards tightening regulation and gradual reform of the institution of shared construction, which implies appropriate 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 Russian Federation"Dated July 29, 2017 No. 218-FZ, containing many amendments to 214-FZ.
The amendments enter into force on 01 January and 01 July 2018... Many of them are of a fundamentally new nature. The novellas 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, 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 will not be superfluous to recall that since its adoption, 214-FZ has changed to one degree or another 16 times, and each new attempt by lawmakers to make the construction market more transparent and protected has caused similar sharp criticism from developers, however, in the field of development large, medium and small developers are still working.
The truth is that earlier attempts to reform 214-FZ failed to solve the problem of defrauded equity holders. How real will the innovation "work", how far will it actually go, and how positive or negative will their work become?
When innovations will "work"
It immediately draws attention to the fact 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 novels, gave construction companies a whole year to prepare for the changing working 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 objects, the construction permit for which was obtained after April 1, 2015.
Then, many developers simply received permission to build a number of objects before the "X" date, after which they quietly completed their construction for several more years, not falling under the influence of innovations.
It is highly likely that many developers will implement a similar scenario now.
It is noteworthy that many new buildings will not be affected by the 214-FZ novelties at all. It is about those houses that are being built according to the scheme of housing construction (HSC) or housing accumulative cooperatives (HSC), as well as according to preliminary agreements for the sale of apartments. The new version of the law still does not prohibit such schemes for attracting money to construction, and here the legal relationship "developer-citizen" 214-FZ does not regulate in any way.
Interestingly, at the same time, the novels deprived developers of the opportunity to issue or purchase securities, with the exception of shares. Since one of the types of securities are promissory notes, the new edition of 214-FZ has finally put an end to the “promissory note” 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, a specialized developer can only be a business company - corporate commercial organizations in the form of limited liability companies or joint stock companies... Developers such as non-profit are becoming a thing of the past. public organizations, sports, music, educational and scientific institutions.
Since the developer must perform the function of construction, and, according to the new requirements of the legislation, cannot perform other functions, this rule seems to be logically justified.
A 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 obligatory to have permits for commissioning of at least 10 thousand square meters of apartment buildings.
This innovation makes it much more difficult for new construction companies to enter the market. Now the organization must first "show 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 meet" 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 state power, to be earlier (less than 3 years ago) brought to subsidiary liability for obligations legal entity, be insolvent (bankrupt). The same requirements apply to the developer's beneficiaries.
In the project declaration published for general review, the developer will be obliged to indicate information about the compliance of its managers with the requirements of the law.
Special attention is paid to the increased information transparency of the developer. On its official website, the developer will be obliged to post in full the interim financial statements no later than 5 calendar days after the end of the relevant reporting period, as well as annual accounting statements and audit report no later than 120 calendar days after the end of the relevant reporting year.
The developer will be obliged to post the same information in the Unified Information System for Housing Construction, such an obligation arises from January 1, 2018.
It is important to note that such a United Information system has already started working (https: //our.dom.rf/).
The financial stability of the developer
A number of innovations are aimed at improving the financial reliability of developers.
V new edition 214-FZ canceled the previously existing requirement on the minimum amount of the authorized capital, depending on the area of 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 of more than 500 thousand sq. m).
However now own funds the developer must be at least 10% of the planned cost of the project.
A new requirement has been introduced for minimum balance funds on the account of an authorized bank as of the date of sending the project declaration, which must be 10% of the project cost of construction.
The developer's obligations not related to the construction of an apartment building should not exceed 1% of the design cost of construction as of the date of sending the project declaration to the authorized body. The maintenance costs of the developer cannot exceed 10% of the project construction cost.
Also, the aggregate 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 or create commercial and non-commercial organizations. Thus, an attempt was made to exclude the creation of construction holdings, which, in practice, do not so much contribute to the developer's ability to stay "afloat", but rather simplify the withdrawal of the troubled developer's funds beyond the reach of defrauded real estate investors and law enforcement agencies.
This is especially true of foreign offshore legal entities affiliated with the developer.
However, it seems that this prohibition in practice can be easily circumvented by registering subsidiaries on "their" individuals, formally not connected in any way with the organization-developer.
The developer cannot attract loans and borrowings, with the exception of targeted loans, the developer himself also cannot provide loans or loans.
As already noted, from now on the developer has no right to issue bonds and other securities, except for shares, as well as purchase securities (including bills of exchange).
Construction requirements
One of the main innovations was the rule according to which the developer is not entitled to simultaneously carry out the construction of apartment buildings under several building permits and has the right to raise money from equity holders only for the construction of apartment buildings specified in one permit.
Now the principle is working: "1 developer = 1 building permit".
This innovation is aimed at suppressing the practice when the developer completes the 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 object.
According to the new edition of 214-FZ, the developer has the right to attract funds from citizens only with one building 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 that are not related to attracting funds from equity holders and the construction of the corresponding facility. Such a 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 minimize the risks associated with the developer's financial responsibility in other areas of business, which ultimately negatively affected the financing of the development.
However, in reality, even before, most developers practically did not “break away” from their main activities, mastering only types of activities related to construction (registration of a preschool institution, property rights, repair of built apartments on a turnkey basis, 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.
Lack of expertise in this area (mainly - the sphere suburban construction) often led to significant violations of building codes.
Compensation fund
The developer will be obliged to make contributions to a specialized compensation fund in the amount of 1.2% of the cost of each preschool institution.
The non-profit organization "Fund for the Protection of the Rights of Citizens - Participants in Shared Construction", established by the Decree of the Government of the Russian Federation of December 7, 2016 No. 1310, is now being transformed into a public company.
The funds of the fund are intended for the completion of problem objects or for the payment of monetary compensation to equity holders. Mandatory deductions the compensation fund replaced the previously existing methods of securing the developer's obligations in the form of a mandatory bank guarantee or compulsory insurance civil liability.
However, the developer can still voluntarily use them.
It should be noted that the previously practiced system of compulsory insurance of developer's liability in practice has not justified itself. According to statistics, there was not a single case when a problem house or a residential complex was completed with the money of insurers.
In this regard, the decision of the legislator to cancel this method of securing the developer's obligations seems to be 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 equity holders, such a system is more reliable than the current one. The funds already formed in the fund are much easier to use than the hypothetical insurance compensation or bank payments.
At the same time, the legislators remained true to themselves and the previously taken general course of self-regulation of certain areas of business, placing the responsibility for financing the fund's work on the participants in shared construction - developers and citizens.
Consistently implementing the policy of planned financing, the legislators, as an alternative to the financial burden on the creation of the fund, provided for the developer's transition to the use of escrow accounts.
It is important to note that the law determines the maximum amount of compensation, which is defined as the product of the total area of all living quarters to be transferred to a citizen - a participant in shared construction (but not more than 120 sq. m.) and an average market value 1 sq. meter in the corresponding constituent entity of the Russian Federation, the value of which is determined in a specific period federal body executive power.
Thus, the owners of elite apartments, the area of which often exceeds 120 square meters, were not fully protected. m.
In addition, the ratio of the market value is also questionable. square meter for a particular developer and the "average market value", which is determined by the federal executive body and can be significantly lower than in reality.
Bank control
The natural result of the banking lobby was the granting of broad powers commercial banks, the list of which will be specially determined by the Government of the Russian Federation.
The developer is obliged to open an account only with an authorized bank, while he is entitled to have only one current account through which all payments for the construction will be carried out.
All key participants in the construction, such as the developer, technical customer and general contractor, must have accounts with one authorized bank.
The most controversial innovation was the rule according to which a special bank control will be carried out for each payment by the developer. The bank will check DDU, other contracts related to construction, acts of delivery and acceptance of work performed, acts of delivery and acceptance of goods, consignment notes, etc. In case of detection of fictitious transactions and other violations current legislation the bank will be required to inform the supervisor.
The granting of supervisory powers to banks that are commercial organizations, along with the authorized executive body of the constituent entities of the Russian Federation, already provided for by 214-FZ, is indeed an unexpected decision.
Extensive interaction of some commercial structures (developers) with other commercial structures (banks), especially when the former are dependent on the latter, almost always gives a wide field for abuse and corruption.
At the same time, it must be admitted that such double control over financial flows builders reduces the risk of asset withdrawal from construction and subsequent deliberate bankruptcy of the developer.
Finally, bank control can be regarded as a kind of test for banks' ability to control the equity construction market.
Recall that according to the roadmap for reforming the institution of shared construction, starting from July 1, 2019, a full transition to the use of escrow accounts and / or special accounts is expected. The latter fact also raises a lot of controversy about the nature of legislative changes.
In particular, it is pointed out that the main beneficiary (beneficiary) of the introduction of escrow accounts in the primary real estate market are not developers (due to increasingly complex requirements for their work) and not participants in shared construction (although for them the risk of investments in construction decreases, but there is a high probability of growth in prices for primary real estate), but directly themselves banking structures.
For example, the bank issues mortgage to a participant in shared construction under the appropriate fairly high interest rates... Then, when a participant in shared construction acquires an apartment, the bank returns the same money to the escrow account. And then the bank again lends the same money to the developer for the construction of a house, and again at interest. At the same time, the developer himself under the conditions loan agreement falls under the full control of the bank.
Thus, without actually "taking out" the money from the bank, credit organisation gets the opportunity to receive interest from both a participant in shared construction and a developer.
Output
The changes made to 214-FZ can be characterized as significant. There are new requirements for the creation and operation of developers, financing of construction and the process of creating multi-apartment buildings, created new way securing the obligations of the developer in the form of a public company called the Fund for the Protection of the Rights of Citizens - Participants in Shared Construction.
The obvious result of the novels in practice will be the withdrawal from the market of most small and medium-sized construction companies, many of which will not be able to work according to the new rules. Such companies or will be forced to switch to the schemes of housing cooperatives and ZhNK, preliminary agreements, or transfer your construction sites to larger developers who will share the vacated potential among themselves.
Banking structures are already receiving important preferences, with which developers will have to work, and with the rules of the game which developers will have to reckon with. Banks can get even greater benefits in the future in the course of the implementation of the Government's road map.
The use of escrow accounts is not mandatory at the moment, which means that the institution of equity participation in construction itself continues to work.
At the same time, a general course has been taken to replace equity participation bank lending and other forms of financing.
Obviously, at the same time, difficulties may arise in the implementation of another government course - to create an affordable housing market. After all, the monopolization of the construction market by large development companies, the complication of their work due to legislative innovations and bank control, the reduction in supply due to the exit from the market of many small and medium developers, against the background of an increase in consumer demand, may lead to a significant increase in prices for apartments in residential buildings under construction.
However, only practical use considered innovations in legislation in life.
Post date January 11, 2018