Has shared construction been banned? Prohibition of equity participation in construction
A common solution housing issue has now become participation in shared construction... This allows citizens to get an apartment at a bargain price, and developers to develop the market for new buildings. Additional guarantees are provided by the registration of a shared construction agreement, which will not allow swindlers to resell the same apartment again during the construction of a house.
A seemingly successful scheme for everyone, in fact, made some hostages of the situation when developers went bankrupt, the deadlines for putting houses into operation were significantly delayed, and they also became abandoned altogether at an unfinished stage.
More and more defrauded equity holders began to appear, and their discontent poured out into the streets with pickets at local administrations. The current legislation needed to be amended. And they began to operate on January 1, 2018 in terms of the openness of information about the developer, entering this data into Unified system housing and bankruptcy rules. The new part of the amendments was introduced on July 1, 2019 by Federal Law No. 175 and we will talk about them in more detail.
Federal law on shared construction 214-FZ
The main normative document in the field of regulation of relations between developers and citizens is the Federal Law of 30.12.2004 No. 214-FZ "On participation in shared construction". The amendments are made annually in order to solve the problems associated with the emergence of defrauded equity holders.
The reasons for such situations, as a rule, are fraudulent schemes for financing construction, when the funds of new investors "plug" financial holes formed at other facilities. As a result, there may be cases when the developer is unable to fulfill his obligations and declares himself bankrupt. In the worst case, it just disappears.
In order to prevent fraudulent schemes, serious amendments have been made to the law, coming into force on July 1, 2019.
Shared construction in 2019. New in legislation
Innovations in Law 214-FZ have tightened the requirements for construction organizations carrying out the construction apartment buildings under contracts equity participation citizens. Let's list them:
1. One developer - one building permit.
From July 1, 2019, an amendment began to take effect, which does not allow a specialized developer to carry out the construction of apartment buildings under several permits for this. A permit can be issued for one or several construction objects, but only one.
2. The requirements for the construction company have changed.
The permit will be issued only if the developer meets the following parameters:
- the company has its own funds in the amount of at least 10% of the planned volume of construction according to the data project documentation;
- the sufficient size and availability of these funds on the developer's current account must be documented at the time of submitting the project declaration to territorial body authorities;
- the company is not entitled to issue and issue securities, except for shares;
- the developer should not have arrears on targeted loans and credits, if they do not relate to the construction of an apartment building under one permit;
- the company's property should not be used as a fulfillment of obligations to third parties;
- the developer must have successful projects in the amount of at least 5 thousand square meters;
- the developer is prohibited from engaging in activities other than construction.
According to Article 23.3 of Federal Law 214-FZ, the list of data that the developer is obliged to place in the Unified Information System for Housing Construction has been supplemented with documents of title to the land where the construction of a residential building is underway.
3. One developer - one checking account.
A construction company that is a specialized developer is allowed to have only one current account opened with an authorized bank. Thus, in the construction of a residential facility, funds can be involved not only from the developer and buyers, but also from a state-accredited bank.
Everything monetary transactions on this account should be only within the framework of 214 of the Law, but also be under the control of the bank. The withdrawal of funds is possible when the developer contacts with supporting documents and checks them by the credit institution. Thus, the funds will not be transferred to the builders until they fulfill their obligations to the equity participants.
4. Funds from individuals can be attracted through escrow accounts(Article 15.4 of the Federal Law of December 30, 2004 No. 214-FZ).
This method makes it possible to insure the funds of equity holders, but only when they are deposited into an escrow account. Insurance is carried out in the Deposit Insurance Association or compensation fund.
5. Transactions must be accompanied by a bank.
6. State control deals.
Supervisory bodies should be created in each subject, which, together with banks, will exercise control over developers. The heads of such bodies are appointed by the Ministry of Construction (Article 23 of the Federal Law of December 30, 2004 No. 214-FZ).
7. Contributions to compensation fund
In order to guarantee compensation for the lost funds of investors as a result of the developer's dishonesty, a Fund for the Protection of Shareholders is being formed. The legislation obliges the construction company to transfer into it 1.2% of the proceeds from the sale of housing of prisoners under the preschool education institution. Contracts will not be registered without the developer transferring funds to the Fund.
8. Limited advance payments
The new edition of the Law establishes the condition for the transfer Money the developer as settlements with suppliers and contractors. Without presenting documents to the bank to confirm the obligations fulfilled under the contract, the money will not be transferred. This means that only after the partner fulfills the conditions for the provision of services, delivery of goods, etc. the developer will be able to settle accounts with him.
But in part 4 of article 18 of the Law there is a clause that advances can be transferred to partners, the total amount of which will not be higher than 30% of the declared cost of the project.
9. The plot of land on which the construction of an apartment building will be carried out must be owned by the developer or on a lease basis.
Will shared construction be canceled on July 1, 2019?
Amendments to Law No. 214-FZ on shared construction led to the cancellation of the existing scheme and to a smooth transition to project financing housing construction.
For developers, projects started earlier on July 1, 2018 should be completed on the same terms, and for buyers with prisoners and registered preschool institutions, they will remain in effect until the delivery of housing.
What will happen instead of the DDU?
From July 1, 2019, it is planned to switch from equity participation to project financing of construction. The new system will include a chain of participants:
- Shareholders.
- Credit institution (bank).
- Developer.
- Regulators.
As a result, project costs will increase, which will certainly affect the final product and cause an increase in housing prices in new buildings up to 20-30%.
Transition period from shared construction to project financing
The transition is carried out in two stages:
1. The period from July 1, 2018 to June 30, 2019, when developers enter into contracts with citizens using one of the following mechanisms:
- escrow accounts;
- state regulation in accordance with Art. 23 No. 214-FZ.
2. The period from July 1, 2019 to December 31, 2020, when all agreements on shared participation of citizens in housing construction will use the mechanism of escrow accounts or special accounts.
The new financing model will lead to the fact that construction will be carried out with the attraction of bank loans. Citizens' funds held in escrow accounts will be transferred to the developer or to repay the loan only after signing deed of transfer parties participating in shared construction.
Banking support of transactions in shared construction
Banking support for transactions has become mandatory since July 1, 2018. Now citizens will not be able to transfer funds directly. The state obliges them to deposit them into a special bank account opened under a building permit. Those projects that started earlier than the specified date are required to switch to the same system of settlements and control over them.
As part of the integrated development of the territory, the developer is allowed to build apartment buildings under several permits, but for each of them a bank account must be opened.
Such regulation financial relations between equity holders and allows you to insure citizens' funds against losses due to fraud or bankruptcy of the developer.
Funds will go to him only on condition:
- putting the house into operation;
- registration of ownership of at least one of the apartments in it.
In the event of the freezing of the object or the bankruptcy of the developer, all funds of the equity holders will be returned to them in full.
Escrow account for the developer
From July 1, 2019, the developer is obliged to open a DDU when concluding contracts. It is planned that such a model will reduce the risks of equity holders being defrauded.
Thus, the new mechanism will lead to the fact that there is no need to conclude agreements with citizens - participants in shared construction. These funds will be kept in special accounts of the developer under the control credit institution and are insured by the Deposit Insurance Agency against possible bank bankruptcy.
The amount of insurance compensation in this case is equal to 10 million rubles based on one apartment in an apartment building.
The set of conditions that are applicable under the new legislation to the construction of apartment buildings make it possible to draw the following conclusions:
- equity participation agreements in construction will no longer apply, there has been a transition to project financing;
- previously concluded preschool educational institutions will operate until the fulfillment of their obligations;
- an increase in the cost of apartments in new buildings is expected in connection with the new requirements for financing construction, now it will be difficult to buy at low prices at the stage of the "foundation pit".
Experts from M16 Real Estate have prepared a detailed material on the cancellation of shared construction in Russia.
We will tell you what changes will take place in the legislation and on the market from July 1, 2018, what consequences the refusal to use the funds of equity holders will have, and when the shared construction will be finally banned in Russia.
Liquidation of shared construction in Russia
At the moment, about 80% of all housing is sold on the basis of equity participation, which, in turn, is regulated by 214-FZ. Alas, legislative regulation the sphere, which at one time had high hopes, did not bear much fruit. And as of the end of 2017, the number of officially recognized defrauded real estate investors in the country amounted to 86 thousand.
The number of officially recognized defrauded real estate investors is 86 thousand, unofficially there are about 2 million people in the country who have suffered from the actions of developers
Obviously, the problem of equity holders affected by actions construction companies, is acute, and its solution requires decisive and tough measures from the government. It is precisely this measure that should be the cancellation of the share.
What will happen instead of shared construction?
In fact, developers will be prohibited from attracting funds from citizens-equity holders for their work. Instead, companies will have to either make do with their own funds (and this is really only for state-owned companies), or get loans. The situation has already been agreed and worked out with the banks.
At the same time, citizens retain the right to purchase unfinished housing. Only now, the paid funds will be stored on special escrow accounts, access to which will be available to developers only after the house is handed over.
If the developer has not fulfilled the obligations, the buyers simply return their funds, fortunately, they are not spent, but patiently wait, remaining on escrow accounts.
By the way, the government does not exclude the possibility that in a few years a ban will be imposed on the sale of unfinished housing. However, so far this is not legally enshrined anywhere.
President's opinion
The president insisted on the abolition of the doleuke more than anyone else. It was he who initiated the development of an alternative system that would allow the construction of new housing without the use of purchasing funds.
Russian President Vladimir Putin called shared construction an uncivilized system
At the beginning of this month, V. Putin was extremely critical of shared construction, calling the scheme uncivilized and the regulation indistinct.
Law on the abolition of shared construction
As such separate law will not. Instead, all changes will be enshrined in 214-FZ. The first innovations will start working this year. The reform will come into full force only in 2019. This time, as the government expects, should be enough for developers to reorient and prepare to work in the new environment.
New in shared construction since 2018
It is too early to expect a complete cancellation of the dole-up this year. However, the market is still waiting for significant changes.
The main thing is that the requirements for developers are getting tougher. From now on, only companies that have at least 3 years of work in the residential area will be allowed to build housing.
From July 1, 2018, developers will begin to receive building permits only after the full implementation of previous projects
In addition, the company's account must have at least 10% of the planned construction cost. This amount, by the way, will be frozen.
After July 1, developers will only be able to obtain one building permit. And until the full fulfillment of obligations under current project you can not even dream of a new resolution.
At the same time, the examination of project documentation is being tightened.
When will share construction be canceled in the Russian Federation?
At first, developers will retain the right to independently choose the format of construction - equity or project financing. However, starting from July 1, 2019, there will be no such opportunity - shared construction will be completely canceled.
Within a year, companies must prepare for the transition to another form of financing and adjust work processes in accordance with the new requirements.
What will the ban on shared construction turn out to be?
Undoubtedly, such large-scale amendments will leave a noticeable mark on the residential real estate market, and the consequences - both positive and negative - will be felt by both developers and buyers.
Buyer safety
This is the main reason why equity construction should sink into oblivion. However, how effective will the new measure prove?
Thanks to escrow accounts, which will hold the money transferred for the apartment, buyers' finances will really be safe. And if the developer does not fulfill their obligations, clients will simply get their money back.
The new order will protect the money of equity holders, but will not save from long-term construction
But this will not affect the timely completion of houses. Someone might say “they returned the money - and okay, new apartment you can take it ”, but this is not entirely correct.
Imagine that you bought an apartment for 3 million rubles, and two years later the developer took it and went bankrupt. You got the money back, but now such an apartment is already worth 4 million. And the prospect of moving into your own home is again postponed indefinitely.
Housing prices
Apartments will rise in price, this is a fact. The very cost of the objects will grow, because the costs of credit services will now be invested in it. Developers will try, as far as possible, to share the credit burden with buyers, so apartments will steadily rise in price. According to experts of "M16-Real Estate", the rise in prices will be from 15 to 30%.
On the other hand, developers will remain limited by their purchasing power, which has not been increasing for a long time (there is no reason for its growth in the foreseeable future either).
Market participants
The number of developers will noticeably decrease. Moreover, the market will get rid of not only unscrupulous players, but also just small companies. Conscientious developers who do not have sufficient funds in their assets will be forced to leave the market.
The market will get rid of unscrupulous developers. Small companies will also be forced to leave
Some companies are already reorienting themselves to general contracting. The main reason is the uncertainty of the situation caused by changes in legislation. Among such companies, for example, one of the oldest St. Petersburg developers - "47 Trust".
Although the losses of St. Petersburg and Moscow will not be very noticeable thanks to the market leaders working here, in general Russia will lose a significant share of construction companies, including bona fide ones.
Construction pace
The principle of "one developer - one building permit" scares developers no less than the prospect of obtaining a loan for construction.
The companies fear that the terms for the implementation of residential complexes will significantly increase, because now for each building it will be necessary to obtain separate permits. Including for buildings of social or engineering infrastructure.
That is, we will have to forget about the parallel construction of houses and kindergartens. The same applies to individual boiler houses, transformer substations, etc. This will be especially noticeable for IBP projects. And the first tenants will have to get used to the atmosphere of the eternal construction site.
What will happen to the defrauded equity holders?
For those who have already suffered from the actions of developers, nothing will change. Rather, their problems will be solved in the current order.
What now?
Until the changes take effect, developers are trying to get as many permits as possible and bring properties to market faster. The sale of objects brought to the market before July 1 will be carried out according to the current rules and the subsequent cancellation of shared construction will not affect this in any way.
In the coming year, the market volume will be formed mainly due to the current proposal, prices will be competitive, the rise in prices will be moderate.
2019 Opinion
Pavel Lipkin, head of the department of real estate under construction "M16": From July 1, the construction market will finally switch to settlements with equity holders through escrow accounts. However, there are exceptions: those who have already sold more than 10% of the area, and the readiness of the house exceeds 30%, will be able to complete the construction according to the old rules.
For those who have to build at their own expense and transfer to the treasury social facilities, the minimum level of readiness has been reduced to 15%. And for “backbone” companies, the readiness threshold has been reduced to 6%, but in St. Petersburg only a few developers can apply for this status.
The period from July 1, 2018 became a "test" regime for the construction market. Some companies switched to escrow accounts, but many started looking for workarounds, such as sales by assignment. Some of the apartments were reissued to third-party legal entities, which now act as sellers under an assignment agreement.
The projected rise in prices was less than expected. For the first half of the year, the average rise in price square meter amounted to 7-10%. In general, any assessment of the new rules will be premature for now, only after the final transition to escrow accounts can the market changes be fully appreciated.
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Enormous amendments were adopted to the legislation on shared housing construction (Federal Law No. 175-FZ dated July 1, 2018).
For those developers who are already in full swing building and completing housing, almost nothing will change, but bank control over their accounts will tighten. But developers who are just getting a building permit, on the contrary, will face big changes.
First, they must choose the most suitable format of work for them - through escrow accounts or through the so-called "project financing" (part 1 of 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 preschool educational institution will be submitted for registration with Rosreestr in a year will be built, with no 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 the construction site, it is allowed to transfer them only after checking the "supporting" documents (,). At the same time, the developer, technical customer and general contractor must open accounts for settlements on the construction site in the same bank; if the developer has several building permits, a separate account is opened for each of them (,). If the developer "leaves" 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 offered by the developer is not confirmed by acts, TTN, invoices and other documents, if it exceeds the spending limit or advance payment limit, or otherwise violates the instructions, the bank is obliged to refuse to carry out the operation on the account (,). By the way, you can cash out only to pay salaries to builders.
The developer's transactions bypassing these rules can be challenged in court - at the suit 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 it will become much easier for him to live: in this case, he will not even need to pay contributions to the Fund for the Protection of Shareholders, and even more so to report to the bank, comply with financial stability standards, have experience in construction and the necessary stock of your own money (). He is even allowed to have debts and tax arrears, and in addition, to issue promissory notes and issue other securities ().
The mechanism of operation of escrow accounts in the "share" is as follows. The shareholder concludes a standard DDU with the developer, but with the condition of an escrow account, registers it with Rosreestr and pays to the bank an amount equal to the price of the DDU (). But the developer does not receive a penny from this money: they are entirely deposited (that is, they lie intact) until the very end of construction, and the developer builds exclusively on his own or on borrowed money (). By the way, for a citizen whom the bank suspects of money laundering or financing terrorism, the bank has the right to refuse to conclude an escrow account agreement, and he will not be able to become a shareholder in principle ().
If the construction of a house has ended successfully, then the developer takes the entire pool of funds on escrow accounts - but not before the constructed house receives a commissioning permit from the construction supervision and the very first shareholder successfully registers ownership of its object in the Rostreestr; By the way, this is an additional bonus for equity holders, because often they cannot register ownership of their apartment, although they live in it, - it suddenly "turns out" in Rosreestr that the developer has not completed the cadastral documents for the house.
If the developer goes bankrupt, the shareholder has the right to terminate the DDU and withdraw his money. However, the option will remain for him 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 delay of the developer), he again can take his money ().
And if the bank goes bankrupt, then the shareholder and the developer will simply move to another: escrow accounts are insured in the deposit insurance system for an amount of up to 10 million rubles.
- It is forbidden to buy DDU for cash;
- the managers and beneficiaries of the developer are now jointly and severally liable with the developer for losses caused through their fault to the citizens-equity holders. This means that you can contact these persons for losses immediately and directly - without waiting for bankruptcy, without establishing the insufficiency of the developer's own funds;
- It is not necessary for developers to have their own sites now - they must disclose all information, first of all, in the unified information system for housing construction (https: // our house.rf). Everybody's favorite photos of houses under construction will also be there with monthly updates. This is convenient for equity holders - firstly, it is easier to complain if the information is not all, and secondly, it will not disappear anywhere if the developer goes bankrupt or decides to flee to Cyprus with a suitcase of money. True, this norm will work only from October;
- as before, the head of the regional "DDU-supervision" will be appointed and dismissed by the governors, however, the candidacy for both entry and "departure" must be approved by the Federal Ministry of Construction of Russia;
- as before, the regional "DDU-supervision" is obliged to warn Rosreestr that the "flawed" developer has no right to sell the DDU (in this case, Rosreestr blocks their registration). But if for "old" developers such information is transferred to Rosreestr within a day after detection, then for objects with new, after 01.01.2018, building 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 (it is allowed to complete previously started projects), and construction through a housing cooperative is allowed only in bankruptcies and such housing cooperatives for which land for construction is provided free of charge by the state or municipality;
- it will be possible to build not only with one building permit, but within several permits at once. Thus, the principle "one developer - one permission to implement", in fact, has not worked. 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 integrated development territory, and (or) agreements on the integrated development of the territory, and work under several permits is possible only through escrow accounts and with the obligatory deduction of money to the Fund for the Protection of Shareholders;
- the amount of information that the developer is obliged to upload to the network (since October - on his account at https: //our house.rf) has increased. In particular, now he is obliged to publish the calculation of the size of his own funds and financial stability standards (quarterly), as well as the GPZU and the scheme planning organization land plot with the designation of the location of the object capital construction, entrances and passages to it, boundaries of zones of action of public easements, objects of archaeological heritage;
- the period of "excommunication from the profession" has increased - until July 1, it was forbidden to let people in the "dolevka" who have stained themselves with ties with bankrupt developers during the previous three years, and now the period of "excommunication" has been increased to five years. For the beneficiaries, they retained a three-year period, but on the other hand, the developer's beneficiaries themselves will become more - before they paid attention only to those who directly or indirectly owned at least a quarter of the shares or shares of the bankrupt developer, and now they will look closely at those who had only 5% shares or shares. The full name, TIN and SNILS of such characters must be disclosed by the developer;
- the period for disclosing interim financial statements by the developer has been increased by 6 times (from 5 to 30 calendar days).
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 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 the abandonment of shared construction in favor of mortgages, regarding such agreements as the legacy of an underdeveloped housing market, "Rudiments of a previous era."
Already on December 25, 2017, on the official website of the Government of the Russian Federation, a "road map" 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 for developers in terms of "ease of use".
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), 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 has already taken 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 and purchase 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 funds from citizens in 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 on 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 place in full the intermediate accounting 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 minimum requirement authorized capital depending on the area of the facilities under construction (from 2.5 million rubles at total area up to 1.5 thousand square meters, up to 1 billion 500 million rubles with a total area of more than 500 thousand square meters).
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, the majority of 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 spheres of business, having entrusted the responsibility for financing the work of the fund to 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 question is raised by the ratio of the market value of a square meter for a particular developer and the “average market value”, which is determined by the federal executive body and may 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 client 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, certificates of delivery and acceptance of work performed, certificates 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 obliged 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, 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 the participant of shared construction under the appropriate rather 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 building a house, and again at interest. At the same time, the developer himself, according to 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 apartment buildings, created new way securing the obligations of the developer 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 novels in practice will be the withdrawal from the market of the majority of small and medium-sized construction companies, many of which will not be able to work according to the new rules. Such companies will either 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 long term in the course of implementation of “ road map»Governments.
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 novelties of legislation and banking control, the reduction in supply due to the withdrawal from the market of many small and medium-sized developers, against the background of an increase in consumer demand, can 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, 2018In Russia, July 1, 2018 entered into force in relation to shared construction which are fixed federal law dated 01.07.2018 No. 175-FZ. According to the new rules, the requirements for developers have become more stringent, both with regard to state control of their construction activities, and in the execution of a transaction with equity holders, as well as financing the construction of residential properties.
Changes to the Federal Law "On participation in the shared construction of apartment buildings and other real estate objects ..." dated 30.12.2004 No. 214-FZ (hereinafter - 214-FZ) are applied only to those projects for which equity participation agreements (hereinafter - DDU) will be concluded after July 1, 2018.
Contracts signed and registered before the specified date continue to be valid, and developers who received a building permit before July 1 will be able to engage in construction according to the old rules.
Federal Law No. 175-FZ of 01.07.2018 decided to introduce the use of escrow accounts, which will compulsory from 1 July 2019.
A transition should be made to the use of so-called escrow accounts for placing money of the equity holders themselves. At the first stage, these will be voluntary decisions. But we proceed from the assumption that in a year this kind of transition will already be mandatory.
D. Medvedev
Escrow accounts are called special bank accounts designed to store under certain conditions the funds of citizens contributed when buying residential real estate from a developer.
In this case, the bank will control the progress of construction and its costs (to prevent misappropriation of funds), and an escrow account is a necessary element in lending to developers for project financing. It is noted that the use of new mechanisms of banking support for construction will allow better management of the majority type of equity construction risks than when making a deal at the pit stage.
The essence of escrow in shared construction is as follows:
- co-investors' money is not transferred directly to the developer, as it was before, but is transferred to a separate account of the new building where the apartment is purchased;
- these funds cannot be used by the developer before the end of construction;
- after handing over the house, the funds on the escrow account can be used by the developer to repay a loan in front of the bank financed by him construction activities, and the rest of them will be considered profit;
- if the developer goes bankrupt, the money will be returned to citizens, which eliminates the problem of defrauded equity holders.
However, the transition to escrow accounts does not eliminate the emergence of another problem - the possibility of closing the bank. To prevent it, the money of equity holders will be insured by the Deposit Insurance Agency, the maximum the amount of compensation will be 10 million rubles. for one apartment in one house.
The transition of developers to the use of escrow accounts
Legislators are pushing developers in every possible way now switch to escrow account mechanism... For those making the transition, it continued to reduce some of the requirements and provide a number of benefits:
- Firstly, if the developer formalizes and conducts work through an escrow account, with an increase in sales, the rate on a construction loan may be reduced (up to about 5%). This is due to the fact that as funds arrive on the account (from the conclusion of transactions with citizens), an amount is accumulated, which will eventually be guaranteed to be paid to the bank.
- Secondly, the transition to escrow accounts allows construction to be carried out only depending on bank financing, the volume of sales does not affect the pace of construction.
- Third, bank-financed construction is more attractive to apartment buyers through insurance and favorable conditions storage of funds.
According to RBC, currently approved, those entitled to open escrow accounts (their list is published on the website of the Central Bank), including Sberbank, B&N Bank, Alfa-Bank, Raiffeisenbank, etc.
What will happen to shared construction and preschool education from July 1, 2019?
Go to project financing in housing construction ends on July 1, 2019, which indicates that developers are prohibited from entering into transactions with equity holders under the old rules. This means that the attraction of funds from citizens will be possible only through escrow accounts (there is a separate account for each shareholder).
By December 31, 2020, it is planned that the share of contracts concluded using escrow accounts will be 95%.
However, for projects for which a building permit has been obtained before the introduction of amendments to 214-FZ, the new rules do not apply, and the sale of apartments in such residential complexes will be drawn up through the conclusion of the preschool educational institution according to the old procedure.
Since it is impossible to open escrow accounts without the participation of a bank, equity agreement changes await too. This agreement in its previous form is outdated and does not correspond to the new requirements in the field of shared construction. The contract becomes tripartite- shareholder, developer, bank - which, accordingly, will entail changing and supplementing the terms of the contract. It is also likely that the document will be named differently.
The transition to project financing undoubtedly means the beginning of the process cancellation of shared construction, which, according to the forecasts of legislators, will cease to exist by 2021.
How real estate prices will change after the cancellation of the equity participation
To the question - will the apartments become more expensive after the abolition of shared construction - experts and specialists in housing construction give mixed answers. Opinions on this matter are divided:
- Some believe that the rise in house prices can be significant. This is explained by the fact that the participation of banks (interest on a loan for a construction project, the cost of using escrow accounts, etc.) can entail a number of additional costs for a developer who can shift some of the costs to the buyer by raising apartment prices.
- Others are inclined to believe that if prices rise, then only slightly (no more than 8%). According to this group, everything depends on how banks will formulate prices for housing and provide preferential rates when lending to developers.
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