The situation is becoming quite common where a buyer pays for an apartment at the stage of building a house, and when the developer sold the apartment out, the buyer receives something completely different from what they once chose on the picture in the catalog. It also happens that they have to defend their rights in court and seek additional costs reimbursement.
HERE IS AN EXAMPLE:
Suppose you bought an apartment from a developer at the stage of building the house. On day X, you come to accept an apartment (by the way, it is appropriate to involve experts in this process who would “recognize” the shortcomings of the apartment with a professional look) and discover a number of defects, on the elimination of which you would have to spend several hundred thousand rubles. The developer categorically refuses to reimburse these costs.
What to do? No one will be likely to have a desire (as well as an opportunity) to get hard-earned money from their wallet and give it to the seller.
WHAT YOU CAN DO IN THIS CASE:
1. Ask the developer to eliminate all identified shortcomings out of court. Remember that the complain must be in writing! No verbal agreements are legally binding.
At the same time, judicial practice shows that neither the Consumer Protection Law nor any other regulatory document obliges you to comply with this pre-trial procedure. That is, the decision of how to resolve the issue (voluntarily and peacefully, or by immediately going to court with a lawsuit) is up to you.
2. File with the court for the recovery of losses incurred through the developer’s fault. In addition, you can ask the court for compensation for non-pecuniary damage and imposing a fine on the seller.
You estimate the amount of non-pecuniary damage compensation yourself; it is not fixed by law. Yet, of course, the amount must be adequate in relation to the nature of the physical and moral suffering caused to you, as well as the degree of the developer’s guilt in cases where guilt is a direct basis for compensation for losses. With regard to imposing a fine: recovery is possible under the Consumer Protection Law for non-compliance with consumer requirements on a voluntary basis.
You can also ask the court to cover all the costs for having the necessary examinations conducted (if any) and for representative services (lawyer).
Lawyers often recommend that at the stage of filing a statement of claim in court and presenting the above requirements, you be sure that you can really prove the fact of making a request to the seller to voluntarily eliminate all identified shortcomings before going to court. After all, if you immediately go to court, they may refuse to impose a fine, since the developer company did not have the time and opportunity to satisfy your requirements, it is consequently impossible to fine the company in this case.
Yet there is a small caveat: according to the Decree of the Plenum On the Consideration of Civil Cases on Consumer Protection Disputes by the Courts, exacting a fine upon upholding of the consumer’s claim is a direct duty of the court and must be fulfilled, provided that the plaintiff has not withdrawn their statement of claim in case the defendant has voluntarily complied with the requirements in the case.
Thus, if you have already indicated the requirement to impose a fine in the statement of claim, do not refuse it, even if the seller promises to eliminate the shortcomings on a voluntary basis.
✅ the court will levy a fine as prescribed in the Consumer Protection Law;
✅ the amount of the fine is 50% of the amount awarded by the court in favor of the plaintiff, as prescribed in paragraph 6 of Article 13 of the Law;
✅ the amount of the fine may be reduced at the court's discretion;
✅ compliance with the pre-trial procedure (lodging a complaint to the seller with a request to eliminate the shortcomings on a voluntary basis) requirements is not a prerequisite.
Should you need help in lodging a complaint to a developer (seller) or taking them to court, contact a professional consumer rights lawyer! Just call us or fill out the feedback form and we will call you back:
Tel: +7 909 961-19-09
Visit us: Moscow, Zubovskiy bulvar, building 4, room 308