Protection of the rights and interests of the parties in recovery from the developer for the breach of the terms of transfer of the object of sharing construction to the shareholder

Abstract

The article describes a variety of approaches to determining the amount of a penalty for violation of the terms of transfer of an object of shared construction that exist in practice. It is noted that the lack of uniformity in the methodology for calculating the size of such a penalty reduces legal certainty and, as a result, trust in the judicial system. It is proposed to adhere to a literal interpretation of the law when setting the date on which the size of the key rate of the Central Bank of the Russian Federation should be determined for calculating such penalties, namely, to proceed from the day of signing the act of acceptance and transfer of the shared construction object. The use of a different size of the discount rate often leads to infringement of the rights of equity holders, and the penalty ceases to be a tool to protect the weak party in the relationship of equity participation in construction. If the amount of the penalty with this method of calculation turns out to be clearly disproportionate to the consequences of the violation, to restore the balance of interests of the parties, you can use the mechanism for reducing the penalty on the basis of Art. 333 of the Civil Code of the Russian Federation, taking into account the peculiarities of each specific situation.