It is not always possible to identify deficiencies in the building design or utilities at the stage of acceptance of residential premises. As practice shows, defects can appear after several months or even years.
You will learn from our article what responsibility the developer bears after signing the housing acceptance certificate and within what period of time you can file claims.
Developer's warranty
The issue of warranty obligations of a construction company is regulated by federal law. It specifies the deadlines and defects of the structure to which these obligations apply.
Warranty period
The warranty period is established by the DDU and cannot be less than 5 years.
If the contract specifies a shorter period, such provisions of the agreement between the developer and the shareholder are considered void.
The law directly states that the established warranty periods are minimal and can be increased in the contract for shared participation in construction. For example, the roofing warranty of most construction companies is 10 years.
The disadvantages of the building itself include:
- defects of walls, facades, entrances;
- problems with supporting structures;
- defects in window structures and doors.
Changes made by residents themselves after acceptance of the house are not covered by the construction company's warranty. For example, if the owner installs new windows in an apartment during the warranty period, then if a defect is discovered in them, the company from which he ordered them, and not the developer, will be liable.
Utility failures include:
- damage to the elevator system;
- defects in the heating system;
- problems with the ventilation system;
- and so on.
Defects are eliminated within a time period agreed with the owners of residential premises. In case of delay in fulfilling the requirements, the construction company pays a penalty for each day of delay in the amount of 1% of the cost of expenses necessary for repairs. It should be remembered that collection of a penalty in such a situation is possible only if the owner uses the premises for personal and family needs, and not for business purposes.
Note!
If defects are identified during the apartment acceptance process, you have every right not to sign the acceptance certificate and demand correction within a reasonable time (usually 30-45 days).
In practice, construction companies often offer residents the opportunity to eliminate deficiencies after accepting a residential property. The developer is interested in signing the papers as quickly as possible, because for each day of delay in the transfer of the house he has to pay a penalty. You have every right to refuse such an offer and not sign the act until the defects are eliminated.
What is not covered by the developer's warranty?
The construction company has every right to refuse to eliminate deficiencies in the following situations:
- natural wear and tear and deterioration in performance due to expiration of use;
- use of premises for other purposes and violation of rules for the installation and operation of household and plumbing fixtures;
- breakdown of equipment that was accepted without drawing up an acceptance certificate, provided that the damage was caused by residents;
- emergency situations arising due to the fault of residents.
In the above cases, the management company or the residents themselves are responsible. So, for example, after the delivery of a house, the technological equipment is transferred to the management of the management company, which must carry out regular maintenance of communications, carry out scheduled and unscheduled repairs. If the management company violates the operating rules. Then it will be she who will be responsible for any defects that arise even during the warranty period.
If you do not know exactly who should be responsible in your particular case, we recommend that you forward your claims to both the management company and the developer.
In accordance with the law, homeowners have the right to demand:
- free elimination of deficiencies;
- reimbursement of costs that you, as the owner, incurred to repair the damage;
- reducing the contract price.
As a rule, owners carry out repairs on their own in cases where defects affect the safety of living.
In addition, the law allows you to demand compensation for moral damage. In this case, you will have to prove in court that you suffered moral suffering due to identified defects in the construction and engineering design. For example, your apartment is located on the 9th floor of a building. A few months after moving in, the elevator began to break down regularly. You have a small child, whom doctors recommend walking with every day, but due to breakdowns in the elevator system, you are forced to walk with the child once every few days. For this reason, you are constantly in an upset state and are forced to take sedatives. In addition, due to nervousness, you have less milk.
Note!
Keep in mind that courts typically reduce the amount of compensation awarded significantly, so don't be afraid to ask for more in your claim.
Complaint to the developer
If damage is discovered, a claim should be submitted to the construction company as soon as possible. The document is drawn up in simple written form. The application must indicate:
- Full name of the applicant, contact details;
- nature of damage;
- deadline for eliminating deficiencies.
The law states that defects must be eliminated within a reasonable time, but does not specify a specific number of days. The period directly depends on the nature of the defects, but, as a rule, does not exceed 30-45 days. If you find it difficult to determine the period yourself, we recommend that you seek advice from specialists.
If you submitted a claim without a time limit, please submit a second, corrected document indicating the time period for correcting the deficiencies. In the absence of a specific date, it will be difficult to prove that the developer violated the agreement, as well as to calculate the penalty.
At the end of the claim there is a date and signature. The document is drawn up in two copies. When submitting, you should ask a construction company employee to sign your version.
If the construction company representative refuses to accept the claim, the document can be sent by registered mail with notification. The appeal can be signed by one of the residents, be a collective one, or sent to the HOA.
When identifying defects, it is very important to record them in photos or videos. Photos and records will be useful in court if the construction company refuses to correct the defects voluntarily.
If the construction organization agrees with the claims, then a joint inspection of the defects is carried out and a report is drawn up recording the defects.
In the event of bankruptcy of the developer after the transfer of the house, claims for defects should be submitted to a self-regulatory organization, which will eliminate the defects.
In a situation where the developer does not eliminate the defects, claiming that they arose due to the fault of the residents or natural wear and tear, homeowners can conduct an independent examination at their own expense. If the examination finds the construction company guilty, the costs incurred can be recovered from the developer.
If the defects that have arisen are eliminated, the next step is to file a claim in court. The claim can also be either individual or from several residents at once.
The application is submitted to the court at the location (legal address) of the developer. The document is written in free form and must contain:
- name of the court;
- Full name and contact details of the plaintiff and name with details of the defendant;
- indication of violated rights and interests;
- regulatory framework;
- demands for elimination of defects or reimbursement of expenses incurred by the owner during self-repairs.
At the end of the application there is a date and signature. Attached are: an agreement on shared participation in construction, examination results (if available), photographs, receipts, estimates from companies that were involved in repairs and other written evidence.
The number of copies of the statement of claim and other documents must match the number of persons participating in the case.
The claim is considered by the court within 2 months. In case of disagreement with the decision made, an appeal is possible to the appellate, cassation and supervisory authorities.
Summary
To summarize, we can say that the responsibility of the construction company does not end after the delivery of the house. If damage is detected, apartment owners have the right to demand that deficiencies be corrected within the time limits specified by law. If a construction company refuses to carry out repairs at its own expense or other disagreements arise regarding the developer’s warranty obligations, we recommend that you seek advice from a qualified lawyer.
What can a customer require from a developer? Let’s look at the list?
- If, after the start of operation of the structure, defects in the work were identified, which are corrected at the customer’s personal expense, then the entire amount spent is compensated by the developer.
- The customer has the right to demand that the developer correct all defects in his work at his expense within the time period specified by the customer.
- If there are defects during the acceptance of the developer's work, the customer has the right to pay less for the work than specified in the contract, but this amount should not exceed that which will be spent on correcting the defect in the work.
Developer's warranty obligations after delivery of a house in Russia
If the developer is not satisfied with the quality of the work done or the presence of defects in the construction, then he has the right not to pay the amount specified in the contract, with the right to demand back the advance amount with interest in the form of compensation.
Of course, it is impossible to notice all the imperfections in the work right away; they will become visible some time after the customer moves into the new house, and many defects begin to appear after a few weeks. According to the law of the Russian Federation, the customer can present his claims to the developer within five years after delivery and acceptance of the work. If the developer does not comply with these rules and refuses to accept the claim from the customer, then he has every right to go to court. Moreover, the guarantee not only applies to the house itself, but also to the walls, roof, and all other parts of the building.
As for engineering and technological equipment, the developer’s warranty applies only for a period of three years, from the moment the document is signed by both parties. In the contract drawn up by the developer, the warranty period for individual parts of the building (for example, an elevator) can be increased, because according to the law, the warranty for a new house extends for a period of five years or more by agreement of the parties.
In order for the developer to eliminate the defect, the customer must submit a written claim, which will indicate the time frame for correction. The customer must send this claim with notification by registered mail. If there is no response from the contractor, the customer must contact the judicial authority to consider the case. So, what do you need to know in order to correctly accept an apartment from the developer?
- First of all, you have to draw up a transfer and acceptance certificate for the apartment.
- It will be necessary to draw up an inspection sheet so that any deficiencies found in the new housing can be recorded.
- It is important to take into account the deadline for the transfer of the apartment by the developer; according to the law, as soon as the developer has announced the completion of construction, the customer must begin accepting housing within one week (seven days).
Before signing the act of acceptance and transfer of housing, it is necessary to clarify several very important points: whether the house has been accepted by the state commission and whether this is confirmed by relevant documentation, whether the house has received a postal address (do not confuse it with the construction address, which is assigned for the period of construction).
Two female architects handshaking, selective focus, canon 1Ds mark III
The transfer and acceptance certificate must contain the following data: the actual cost of the housing and its area, as well as the apartment number, if it is a high-rise building, and the postal address.
Once the developer has received all the necessary documents for the new home, he must transfer them to the customer within three to six months.
Carefully check the quality of the building you accept. Upon acceptance, it is necessary to check all surfaces (floor screed, walls and ceilings, ventilation, glazing of rooms, balconies and loggias), the water supply system (heating and sewerage), and the electrical supply system in the apartment or house. Make sure that the property transferred to you by the developer is of adequate quality. Under no circumstances sign the apartment acceptance certificate until you are sure that all defects have been eliminated. After signing the act, the developer’s responsibilities are considered fulfilled, and there is nothing you can do.
These rules require the developer to transfer the property to the buyer on the terms specified in the contract.
The text of the agreement specifies the cost, terms of transfer, characteristics of the object and warranty obligations after delivery of the house. This article will help you understand the responsibility of the developer, establish a warranty period for apartments, and competently submit a claim under an equity participation agreement in construction.
Important! If you yourself are dealing with your own case related to the developer’s warranty obligations, then you should remember that:
- Each case is unique and individual.
- Understanding the basics of the law is useful, but does not guarantee results.
- The possibility of a positive outcome depends on many factors.
During direct operation, shortcomings and deficiencies are often revealed - leaking roofing, cracks and leaks, mold, initially non-functioning engineering equipment, obvious construction mistakes. There are enough reasons to make claims.
Important! The scope of warranty obligations in relation to the property is specified in Article 7 of the Federal Law of December 30, 2004 No. 214-FZ “On participation in shared construction. "
The object transferred to the shareholder must comply with the terms of the concluded agreement presented to the buyer of the project, general technical standards and urban planning regulations. Full responsibility for the quality and safety of housing lies with the developer.
The guarantee for an apartment in a new building is established in accordance with Law No. 214-FZ, and when concluding an agreement for participation in shared construction, the parties can establish an increased duration of the guarantee obligations.
When drawing up the deed of delivery of the finished property, all equipment and elements of the apartment’s furnishings are transferred to the shareholder. This means that the windows of an apartment in a new building, as well as other similar elements of the apartment, will be covered by a single warranty of at least three years. This rule does not apply if, after receiving the finished object, the residents independently replaced individual improvement units and technical elements.
The developer's area of responsibility is strictly defined - these are defects of a capital nature. The developer’s refusal to provide a guarantee may be due to the following circumstances:
- natural wear and tear and deterioration in performance associated with the expiration of the design life;
- non-compliance with the rules for the operation of common areas and property;
- neglect of the rules for installing and using plumbing and household appliances;
- failure of equipment and structural elements initially accepted without claims under the acceptance certificate, or damaged by residents during operation;
- emergency situations associated with disruption of heating, sewerage, gas and water supply, ventilation, drains, provoked by residents.
Important! After delivery of the house, the management company is responsible for its operation. If the claim does not apply to any of the above points, then you will have to contact the developer.
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The roof guarantee from the developer will be at least ten years, unless otherwise stated in the terms of the transfer deed. In addition, the warranty period may be provided for in the technical documentation, which is transferred by the developer to the management company immediately after putting the house into operation.
How long does the developer fulfill warranty obligations?
Let's consider whether the standard warranty period can be extended or reduced depending on individual elements or components of an apartment building (for example, how much is the warranty for an elevator after delivery of a fully finished building). In accordance with paragraph 5 of Article 7 of Law No. 214-FZ, the standard warranty period for apartment buildings built under an equity participation agreement is at least five years.
However, due to direct provisions of the law, the contract may provide for a longer warranty period for individual elements of the building. For example, for interpanel seams and roofing, the warranty period cannot be less than 10 years. Most responsible developers indicate this period in the contract.
Important! The warranty period for technological and engineering equipment of MKD cannot be less than three years. This equipment includes elevators, boiler rooms, substations, garbage chutes, access systems, ventilation and heating units.
To participate in construction, contractors are selected who guarantee the fulfillment of obligations for a period no less than under the agreement with the shareholders. If this condition is not met, then all responsibility for the operation of engineering equipment falls on the developer.
Free legal advice:
For example, what warranty period can be established for a radiator battery when accepting an apartment from a developer? If, after signing the act, the residents did not apply for replacement of utility networks and certain types of communications, the guarantee will apply for the entire five-year period. It should be taken into account that after the transfer of an apartment building to a management company, responsibility for current repairs will be assigned to the management company.
How to properly file a claim with the developer after delivery of the house?
Since the contractor’s liability after the warranty period can only arise for the proper condition of the load-bearing structures and components of the building, all claims regarding the condition of residential premises or general property of the house must be submitted before the expiration of the five-year period. This period of time is calculated from the moment the property is transferred to the owner. This fact is recorded by signing the acceptance certificate of the finished residential premises. It is signed after receiving the certificate of ownership. Enforcement of obligations after delivery of the house is based on the following algorithm.
Claims discovered during the warranty period must be submitted in writing. The appeal must indicate the nature of the deficiencies and the time frame for their elimination. In some cases, it is not possible to completely eliminate the defect; for this purpose, the law provides for compensation - a proportionate reduction in the contract price or reimbursement of the costs of elimination by the shareholder (Clause 2 of Article 7 of Law No. 214-FZ).
The application must be handed over to the developer's representative against signature, keeping the second copy for yourself, or sent by registered mail with notification. Only in this case will you have a document on hand confirming the fact that the claim was sent.
Important! The period for consideration and response to claims is regulated by the Law on the Protection of Consumer Rights (up to 10 days) and the Civil Code of the Russian Federation (no more than 30 days). But it is better to indicate in the text of the appeal the period within which to consider and respond to the appeal.
Free legal advice:
In most cases, the nature of the appeal is carefully checked to see whether the claim falls under the responsibility of the management company. Therefore, it is recommended to apply there at the same time. Having in hand a response from the Criminal Code confirming that the defects are construction deficiencies, it will be easier to communicate with the developer’s representatives.
Since the technological equipment of a residential building is transferred to the management company for operation, its responsibilities will include routine maintenance and repair of the transferred property. If the rules and procedures for repair work are violated, the management company may be responsible for the deficiencies if it did not exercise the right to make a warranty claim.
Who bears warranty obligations if the developer goes bankrupt (liquidated)? The answer to this question will depend on the stage of construction - if bankruptcy took place before the facility was put into operation, the shareholders will have to register rights to the unfinished construction project. In this case, the house will have to be completed with the help of another contractor or construction organization, which will set the warranty period.
If the bankruptcy occurred after the transfer of the house to the management company, claims under the guarantee will be satisfied through the compensation funds of self-regulatory organizations and civil liability insurance of SRO members.
If citizens involved contractors in the construction of their own private home, a warranty period may also be established for the construction work for making quality claims. The warranty period for the construction of a private house cannot be less than one year, and for certain types of work - up to five years.
Free legal advice:
Experienced lawyers will help you competently draw up a claim, track its consideration and achieve full satisfaction of the requirements. We recommend using the help of our specialists to ensure that you achieve justice in your dispute with the developer. To do this, call the numbers listed on our website or fill out the feedback form.
ATTENTION! Due to recent changes in legislation, the information in this article may be out of date! Our lawyer will advise you free of charge - write in the form below.
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Developer's guarantee
A developer's guarantee is required when purchasing an apartment in a new building. In this text, we will look at the basic laws that govern this obligation, clarify the deadlines and tell you what to do if a situation arises when you have to file a claim with the developer to eliminate defects under the warranty.
In modern legislation, any purchase of an apartment in a building under construction (or rather, shared participation in construction) is regulated by the provisions of Federal Law-214 - the law on participation in shared construction of apartment buildings. Additionally, it is necessary to take into account the norms of civil law - Art. 469 – 478 Civil Code of the Russian Federation. The consumer protection law also helps in protecting the rights of the shareholder.
What do the developer's warranty obligations mean?
Important! Please keep in mind that:
- Each case is unique and individual.
- A thorough study of the issue does not always guarantee a positive outcome. It depends on many factors.
To get the most detailed advice on your issue, you just need to choose any of the options offered:
To understand what the developer’s guarantee covers, let’s study the seventh article of 214-FZ. Paragraph one clearly states the developer’s obligation to transfer the object (apartment) to the shareholder, and the quality of this object must comply not only with the points specified in the share participation agreement, but also with other technical regulations and urban planning standards.
Free legal advice:
Law No. 214 protects shareholders who have entered into a share participation agreement with the developer.
Therefore, if you are planning a purchase using bills, shares or other forms, then think twice. Indeed, in this case, the claim to the developer regarding an apartment building will be regulated precisely by the Civil Code of the Russian Federation, without assistance from the relevant federal law. See Article 756 of the Civil Code of the Russian Federation. And even in this case, you need to understand that each situation is individual, and carefully study judicial practice.
What guarantees can a shareholder expect?
The developer's warranty for a new home includes two types of obligations. Thus, within three years, you can file a claim with the developer to eliminate defects under warranty for various engineering structures and other technological equipment. The list itself implies the overall system or its components:
- ventilation shafts and equipment;
- elevator system and related equipment segments;
- communal heating system;
- Housing and communal services systems are structures through which water, gas and electricity are supplied to the house.
You need to understand that the developer, unless otherwise specified in the contract, is responsible for the in-house systems. Therefore, if, for example, there are problems with gas pipes in the yard, you will have to separately prove that the developer has anything to do with this.
After the completion of a new building, within five years, you can demand that the developer eliminate deficiencies under the guarantee of objects that affect the structure of the building.
Free legal advice:
- Defects and problems with walls - both outside and inside. This also includes the condition of the entrances.
- Problems with building facades - falling off cladding, poor-quality materials due to which the façade is constantly wet, and other problems.
- Problems with the building's load-bearing structures. The most common problems are with ceiling tiles and their sagging in apartments.
- Defects in the default double-glazed windows and iron doors installed in apartments.
In Art. 8 of Federal Law-214 clearly states that the shareholder must require the developer to sign a certificate of non-compliance of the property being handed over with the construction requirements of Part 1 and Part 7 of Federal Law-214.
Also, the shareholder must refuse to sign the transfer deed. Therefore, if the developer claims that he will fulfill contractual obligations later, but at the same time demands to accept your apartment, feel free to refuse. This will help you get the developer’s claims under the warranty enforced in court. Although if warranty claims arose after the apartment was accepted, it’s okay - but there will be more litigation.
What the developer does not guarantee
For a layman in the law, it can be difficult to figure out what is covered by a builder's warranty and what is not. It states that the developer is responsible for deficiencies of a capital nature. But there is one trick that real estate lawyers use.
After the house is commissioned, the management organization bears responsibility for its internal condition. There is a list of requirements for their work. So, management companies are responsible for:
- current wear and tear and reduction in performance characteristics of various in-house equipment and systems;
- for the proper use of common premises and property in common property;
- for broken equipment and structures that were accepted without complaint from the developer using an acceptance certificate for home property;
- for compliance with the recommendations of the instructions for installing household appliances and plumbing fixtures;
- for stopping emergency situations with heating and sewer systems, for proper operation of ventilation and drains.
In summary, if the identified deficiency is not included in the above points, then you can study the documentation and try to file a claim with the developer.
Free legal advice:
Terms of fulfillment of warranty obligations
There is a common misconception that the developer’s warranty is supposed to last for 5 years. Actually this is not true. As mentioned above, this period applies to common building structures. For engineering – 5 years. But the condition of the roof is 10 years.
If a claim is identified and the developer agrees to eliminate the deficiencies, then in accordance with clause 2 of Article 7 of 214-FZ, the developer must eliminate the deficiencies “within a reasonable time.” Unfortunately, what a reasonable period is is not specified in the law, so each case must be considered individually. Usually this is 30 days, but the period can be extended.
In order to find out the elimination period in each specific case, experts analyze similar services on the market. And they focus on the average period within which third-party organizations offer to complete such work.
How to properly file a claim?
We have already found out what the warranty for a new building covers and for how long. Therefore, do not be afraid to file a claim with the developer, even if warranty claims arose after the delivery of the house, acceptance of the apartment and other actions related to your ownership (download sample).
Discovered claims can be filed either by one tenant or by using a collective claim. You can act similarly in the case of filing a claim in court - anyway, the judge, if necessary, can combine several claims into one hearing.
Free legal advice:
The first thing you do after discovering flaws is capture them in photos or videos. File a claim with the developer. In the complaint, you describe in detail the shortcomings and how they were detected (). It is advisable to refer to a regulatory document confirming your requirements. For example, if you took over a house in the summer, and in the winter it turns out that the apartment is very cold, find a government decree in your region, which should indicate temperature standards for residential premises in an apartment building. The claim must be submitted to the developer independently or by sending mail with an inventory of the contents. On the second copy you need to get a note from the developer’s representative confirming the receipt of the claim with the current date.
The response period may be no later than 10 days. It’s best to write “In accordance with the Consumer Rights Protection Law, I request you to provide a response in writing within no more than 10 working days.”
You need to understand that the developer can refer to the civil code, answer you and ask for more time to verify the information - this is an adequate process, since the developer will need to check whether the detected deficiencies fall within his area of responsibility, or whether this is the prerogative of the management company. If you first contact the management company - and this is exactly what you should do - and attach the management company’s response to the claim, then the developer will not have such an opportunity.
Having started interaction with the developer, we recommend drawing up an act in which you need to indicate all the shortcomings in the construction of an apartment building. If the developer refuses to sign it, it’s okay, just make two copies, sign for them and send one to the developer by mail, remembering to keep the receipt.
It is worth understanding that in accordance with Article 7 of Federal Law-214 you have the right to demand:
How to force builders to eliminate shortcomings?
If the developer refuses to voluntarily eliminate all defects identified by the apartment owners, we recommend that you immediately go to court. In addition to the above requirements, you can try to get a penalty from the developer.
It is worth considering that lawyers often confuse the rules for collecting penalties under Federal Law 214 for failure to meet construction deadlines and the rules for collecting penalties under the consumer protection law for failure to fulfill warranty obligations.
Free legal advice:
Clause 5 of Article 28 of the latest law clearly states that the consumer can demand compensation for damages for violation of deadlines for completing work (this is more than 45 days after filing a claim). The penalty is charged for each day. And its size is determined from the price of the service. Often in claims they put 3% of the full price, multiplied by 1/300 of the refinancing rate of the Central Bank of the Russian Federation. It’s better not to split hairs here - the judge will still calculate the penalty according to the law, based on your specific case.
In judicial practice, there are cases when residents were helped by examinations performed by third-party unbiased organizations that proved the developer’s dishonesty. If the trial is won, the apartment owners will receive the money spent on experts back, along with other court costs (Part 1 of Article 98 of the Code of Civil Procedure of the Russian Federation).
What happens if the developer goes bankrupt? In such a situation, everything depends on the moment when the claim is considered. If the house has already been transferred into ownership, then it may be possible to start communicating with the SRO compensation fund. If not yet, then the shareholders may have to take ownership of the property along with all the land, organize a housing cooperative, or take another route to try to complete the construction.
Warranty obligations of the developer after delivery of the house
Every person who buys real estate in a new building should know the warranty obligations of the developer after the delivery of the house. The presence of such information allows you to avoid problems in the future and get quality housing that complies with the contract, technical regulations and current standards.
Free legal advice:
Judicial practice confirms that home buyers in apartment buildings have all the necessary “levers.” They have the right to demand that the construction company fulfill its obligations, and the number of cases won allows us to speak about the effectiveness of such actions. The main thing is to be calm, to prove that you are right by conscience of the case and according to the law. Below we will consider what kind of guarantee the developer gives and what to do to protect the rights.
What are the developer's warranty obligations after delivery of the house?
Federal Law No. 214 states that the developer is obliged to provide the client with high-quality housing that complies with the conditions of the DDU, current standards, as well as other documentation - technical, design and urban planning. Violation of these requirements and deviation from the terms of the contract leads to a deterioration in the quality of the finished property and the appearance of a number of shortcomings in the finished apartment. As a result, the housing may be declared unfit for use, and the shareholder (buyer of real estate) has the right to demand from the developer:
- Reducing the cost of the contract taking into account defects identified during the inspection.
- Eliminate deficiencies without additional payment and within a specified time frame.
- Compensation for the money spent if the new owner of the apartment undertakes to eliminate the deficiencies.
In the event of significant violations during the construction process and poor quality of construction, as well as in the event of untimely elimination of detected defects, the shareholder has the right to refuse to fulfill the contract and demand that the construction company return the funds paid, including interest. In such circumstances, the conditions ensuring the removal of the developer’s liability for identified deficiencies are not valid.
Warranty terms
After receiving the property, the buyer is often euphoric and does not immediately notice the shortcomings. In addition, there are defects that appear only after several months of operation of the newly constructed housing. By law, the buyer has 5 years - the period of the developer's warranty after the completion of the new building. If during this period the construction company refuses to comply with the requirements of the real estate buyer, the equity holder retains the right to go to court.
In judicial practice, there are many cases where the buyer of “defective” housing managed to prove the case. In this case, the countdown of the five-year period should begin from the day when the object was transferred for operation to the shareholder. By law, the guarantee applies not only to the building, but also to its roof, ceilings, finishing and other elements of the building. This applies to all types of apartment buildings and private buildings.
Free legal advice:
A separate warranty is provided for technological and engineering equipment, which is valid for three years. The countdown of this period begins from the day when the signature is placed on the transfer deed. It is worth noting that a construction company is involved in drawing up the DDU, so the section on warranty obligations may accidentally “drop out”. But don't worry. Even in the absence of such a clause, the developer bears full responsibility, because the warranty period of the obligation is prescribed in federal law. A construction company must comply with current legislation, and the information in the contract merely duplicates well-known facts and reveals the specifics of cooperation.
Is it possible to change the warranty period?
There is an opinion that the warranty period can be reduced or increased for certain elements of a new building - an elevator and other elements. From the above-mentioned Federal Law No. 214 (clause 5, article 7) it follows that the guarantee for an apartment building built under an equity participation agreement is 5 years or more.
The contract may extend the warranty period for certain elements of the structure. For example, for the roof and interpanel seams the warranty period should be longer - from 10 years. Many Russian developers indicate this exact period in the agreement with shareholders.
As for engineering and technological equipment, the minimum warranty threshold by law must be 3 years or more. This category includes elevators, power substations, boiler rooms, heating and ventilation devices and other systems.
Before the construction of a multi-storey building, contractors are selected who guarantee the fulfillment of obligations throughout the entire period specified in the Federal Law. If the condition is not met, the developer is forced to take responsibility.
Free legal advice:
The issue of warranty for elements inside an apartment or house deserves special attention. For example, what is the warranty period for a radiator battery? The period discussed above also applies here - 5 years. But it is worth considering that if the property is transferred to a management company, it will be the company that will be responsible for repairs (if necessary).
How to demand fulfillment of obligations?
If during operation the shareholder discovers a construction defect, the buyer has the right to contact the developer and demand that the defect be eliminated. To do this, you must submit your complaint in writing and indicate in it the time frame for elimination. The document is sent by registered mail indicating the list of documents inside and mandatory notification. If the developer does not respond to the claim within the period specified by law, the applicant has the right to go to court.
In detail, the algorithm of actions when identifying defects in a new building is as follows:
- Submitting a claim in writing. The document is drawn up in 2 copies and must contain detailed information about the problem. Here you must indicate the time frame within which the defect must be eliminated. If the problem cannot be completely eliminated, the value of the property must be reduced or the owner's costs must be covered.
- One copy of the claim is handed over to representatives of the construction company, and the other remains with the applicant. This is necessary so that the shareholder has proof of the application.
- Contact the management company. This body must confirm that the defect falls within the developer’s area of responsibility.
- After checking the deficiencies stated in the claim, a decision is made
The recommendations discussed above are an excellent way to ensure that the developer fulfills his obligations under the law. Making a claim is possible throughout the entire warranty period. The countdown begins from the day when the papers on the transfer of the apartment were signed.
The technological equipment of the apartment building is operated by the management company. It is her responsibility to repair and maintain such property. If during the process of repairs or other activities the requirements of current standards were violated, the management company may be responsible for the defects.
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What happens in case of bankruptcy?
When a developer goes bankrupt, the question of the executor of warranty obligations arises. If this happened before the commissioning of the property, home buyers will have to register the title to the unfinished property. In this case, the construction of the new building will be continued by another construction company. The latter should establish a warranty period.
If the developer went bankrupt immediately after putting the property on the balance sheet of the management company, then the claims must be satisfied from the money of the compensation funds of the SRO. If a person hired a contractor during the construction of a private house, a guarantee is also established for the work performed with the possibility of making quality claims. For a private home, the warranty period must be at least a year, and for some types of work - up to 5 years.
How quickly is the developer obliged to fulfill warranty obligations?
The Law on the Protection of Consumer Rights states that a response to a claim must be given within 10 days, but the Civil Code of the Russian Federation specifies a different period - up to 30 days. To avoid conflict situations, the complaint must indicate the recommended time frame for responding to the appeal.
Please note that the nature of the claim is carefully studied by the developer to determine whether the defect falls within the area of responsibility of the management company. Go to the management company to have in hand a response from its representatives confirming that the identified deficiencies are the fault of the developer. In such a situation, it is easier to prove that you are right.
What does the developer not guarantee?
The above-mentioned Federal Law clearly stipulates the developer’s area of responsibility. As a rule, we are talking about defects that are of a capital nature. If a construction company refuses to fulfill its obligations, it may explain its actions for one of the following reasons:
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- Natural wear and tear, as well as deterioration of operational parameters due to the end of the estimated period of use.
- Violation of the rules for the operation of premises that are classified as general use, as well as improper use of property.
- Breakdown of equipment or structural elements that, during the delivery of the object, were accepted without filing a claim under the acceptance certificate, or were damaged by the user himself.
- Violation of the rules of operation, installation or use of plumbing equipment and household devices.
- Emergencies related to heating, sewer, ventilation, gas, drainage and other systems occurred due to the actions of residents.
As noted, after the commissioning of the facility, the management company bears responsibility. If the management company does not respond to any of the points, you must contact the developer. It is he who must eliminate existing defects at the request of the client.
The warranty period for the cover from the contractor is 10 years or more, unless other conditions were reflected in the acceptance certificate. The guarantee may also be specified in technical documents that are transferred by the developer to the management company after the building is put into operation.
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When buying an apartment in a new building, you must first study the developer’s warranty obligations. This will allow you to get rid of problems in the future and get an apartment of proper quality.
Home buyers have the right to demand fulfillment of all obligations from the developer, but in order to do this, they need to know the rules and deadlines for their fulfillment.
What is the developer's warranty?
Warranty obligations are the agreement of one party to compensate for the losses of the other, through monetary payments or elimination of defects.
The real estate purchase agreement must contain a clause that describes the guarantees from the housing developer. Leaks, construction defects and a non-functioning elevator are just a few of the problems you may have to face.
According to the legislation of the Russian Federation, the developer bears full responsibility for the delivered property for five years from the commissioning of the house. The contract pays a lot of attention to information about this, because there will be defects in any case; no one is insured against low-quality building materials or the human factor.
For these reasons, it is necessary to know that guarantees from the developer are mandatory and must be strictly adhered to. The buyer does not have to eliminate the defect at his own expense, unless, of course, he filed a claim on time and correctly.
Execution conditions:
- The house has been put into operation
- The developer is to blame for the defects
- The warranty period has not passed
- No force majeure situation
How to write a complaint to a developer?
Within five years after putting the house into operation, the buyer has the right to make a claim to the developer for the condition of the residential premises or the general property of the house. The claim must be made in writing. First of all, it is necessary to indicate exactly what defects have appeared and the time frame within which they must be eliminated. If it is impossible to completely eliminate them, the buyer has the right to demand compensation. The claim is written in two copies, one of which is handed over to the developer against signature. Only in this case will the fact of sending the claim be confirmed.
Naturally, such claims are carefully checked. There is a possibility that it will not be the developer, but the management company that will bear responsibility, so it is better to immediately send a claim there.
Required details:
- Address of the developer and object
- Registration number and date
- Fact of violation and detailed description
- Requirements
- Deadlines by which the requirements must be met
- Bank details (for penalties)
- Applications
- Date of filing the claim
To avoid filing a claim incorrectly, be sure to use the sample.
How long does the developer need to fulfill warranty obligations?
If you have identified a problem, the developer has agreed that it was his fault and agrees to correct the deficiencies, he must do this within a reasonable time. The legislation of the Russian Federation has not established the time given for eliminating defects; each case is individual. Usually it is one or two months, but it can be much longer.
To determine the time frame within which the defect must be eliminated, a comparative analysis of similar services is carried out. They also focus on the average period during which other companies correct similar defects.
Despite the fact that the buyer of real estate has the right to demand fulfillment of all obligations from the developer, this does not apply to all problems.
After the housing is delivered, many claims become the responsibility of the management company, for example:
- Building depreciation
- Force majeure situations
- Equipment damage
- Failure to comply with plumbing installation regulations
- Emergencies
When purchasing an apartment in a new building, the future resident must first carefully study the developer’s warranty obligations, which will allow him to get rid of problems in the future and get an apartment of good quality.
Home buyers have the right to demand fulfillment of all obligations from the developer, but in order to do this, it is worth knowing the rules and deadlines for their fulfillment.
Current information for 2019 on this issue is further in the article.
The purchase of housing from a developer is always accompanied by the conclusion of an equity participation agreement (DPA). The text of the contract contains the conditions under which the purchase is made.
The DDU must include the following items:
The process of purchasing housing in a new building is regulated by the following regulations:
- Civil Code of the Russian Federation.
- Law on ZPP No. 2300-1.
- Federal Law No. 214 of December 30, 2004
According to the above documents, the developer is obliged to comply with absolutely all the conditions specified in the DDU.
Warranty obligations mean that upon completion of construction the buyer must be given an object that meets all of the following parameters:
- Established town planning acts.
- Adopted technical regulations.
- Compliance of the finished property presented to the buyer even before the transaction with the project from the developer.
The scope of work performed by the developer under warranty is regulated by Federal Law No. 214 Art. 7. The terms of these obligations may vary between the parties at the stage of concluding the agreement.
The property transferred to the shareholder must comply with the terms of the concluded agreement, a pre-developed project, general technical standards and accepted urban planning regulations.
The developer bears full responsibility for the quality of housing and the safety of the buyer.
The guarantee for an apartment in a new building is regulated by Federal Law No. 214, and when concluding a DDU, the parties have the right to increase the duration of the warranty.
With the help of the act of handing over the finished property, all the equipment and agreed upon elements of the apartment’s furnishings are transferred to the shareholder. This means that, for example, windows, as well as other elements of the apartment, will be covered by a general warranty of at least 3 years.
Note! This rule does not “work” if, after receiving the finished object, the owners independently replaced individual improvement units and any elements.
The roofing warranty from the developer is legally at least 10 years; a longer warranty period is fixed in the terms of the transfer deed.
In addition, the warranty period can be indicated in the technical documentation, which the developer transfers to the management company immediately after the new building is put into operation.
During the operation of the house, defects and shortcomings may be identified, for example, mold, leaking roofing, cracks and smudges, obvious construction mistakes, etc. All this serves as a reason for making claims to the developer.
The developer’s refusal to provide a guarantee is usually due to the following circumstances:
After the developer delivers the house, the management company is responsible for its operation.
In accordance with Federal Law No. 214 Art. 7 clause 5, the standard warranty period for new multi-apartment buildings built according to the DDU is at least 5 years. At the same time, the law indicates the possibility of extending the warranty period for certain elements of the building.
For example, the warranty on interpanel seams cannot be less than 10 years. Most developers indicate exactly this period in the DDU.
The warranty period for engineering and technological equipment of an apartment building is at least 3 years. This list includes boiler rooms, elevators, substations, garbage chutes, access systems, heating and ventilation units.
Contractors are invited to participate in construction, guaranteeing the fulfillment of obligations within the period specified in the DDU.
If this condition is not met by the contractors, then all responsibility falls on the developer.
The law establishes that the shareholder has the right to expect the developer to eliminate defects and problems associated with the structures and equipment of the construction project within a certain period.
The general list of warranty systems includes the following elements:
- shafts and ventilation equipment;
- communal heating system;
- elevators;
- housing and communal services systems that supply gas, electricity and water to the house.
The developer is responsible for the systems that are located inside the building, therefore, if problems arise with the gas supply or other deficiencies are identified, the shareholder can make claims against the developer.
Once the house is put into operation, residents have 5 years to file a claim if a defect is discovered, demanding that the defects be corrected, for example, such as:
- Damage to the external and internal walls of the building.
- Problems with entrances.
- Defects in the facades of the house (falling off cladding, damp walls, etc.).
- Damage to load-bearing elements of the structure (for example, sagging ceilings in an apartment).
- Deformations in double-glazed windows and problems with metal doors.
Advice! If the developer’s representative assures that he will fulfill his obligations under the contract later, do not sign the apartment acceptance certificate.
Most often, after signing and handing over the property, the developer forgets about verbal promises, and it will be more difficult to prove his guilt.
As soon as the building is put into operation by the developer, responsibility for the operation of the main equipment is transferred to the management company.
If, after putting the property into operation, one of the above problems appears, the management company, and not the developer, will have to eliminate them.
Residents can write a statement of claim to the developer within 5 years after the house is put into operation. The claim is made in writing in 2 copies.
The application indicates exactly what defects have appeared and within what time frame they must be eliminated. If it is impossible to completely eliminate the defects, the buyer has the right to demand compensation.
The first copy of the claim is handed over to the developer against signature, otherwise the fact of dispatch will not be confirmed.
A copy of the claim should also be sent to the management company: it is possible that responsibility will fall not on the developer, but on the management company.
If you identified the problem, the developer admitted his guilt and agreed to correct the shortcomings, then he must fulfill the promise within a reasonable time.
The legislation of the Russian Federation has not established specific deadlines for eliminating defects, so each case is individual. As a rule, this is 1-2 months, but it can be longer.
To establish a realistic time frame within which the defect can be eliminated, a comparative analysis of such services is carried out. They usually focus on the average period within which other companies correct similar defects.
If the developer does not agree to eliminate the defects, pointing out the fault of the residents or natural wear and tear, the owners can order an independent examination at their own expense.
Subsequently, the costs incurred can be recovered from the developer if his guilt is established. If after this the developer refuses to eliminate the defects, then the residents have the right to file a claim in court.
The claim can be individual (from one tenant) or collective (from several). The application is submitted to the court at the place of the developer’s legal address.
The document must include:
- name of the court;
- name and details of the defendant;
- Full name and contact details of the plaintiff;
- an indication of a violation of the rights and interests of the tenant;
- links to the regulatory framework;
- requirements for elimination of defects or reimbursement of expenses incurred by the tenant during self-repair;
- date and signature.
The following are attached to the claim:
- equity participation agreement;
- results of the examination (if carried out);
- photographs, receipts;
- estimates of companies involved in repairs, etc.
The number of copies of the application and attachments must match the number of persons participating in the case.
The claim is considered for about 2 months. In case of disagreement with the court decision, an appeal is possible to the cassation, appeal and supervisory authorities.
In the event of bankruptcy or liquidation of the developer after the delivery of the house, claims for defects can be submitted to a self-regulatory organization, which will eliminate the defects at the expense of the compensation funds of the SRO.
In conclusion, it is worth adding that the developer’s responsibility does not end after the transfer of the house.
If defects are identified, apartment owners have the right to demand their elimination within the time limits specified in the law of the Russian Federation.
