Go prove it: how to get the developer to fix the defects after settling in
It often happens that problems in a new house are discovered only a few years after settling in. But it is sometimes very difficult to prove the developer's guilt in the courts. The courts are delayed, and residents have to spend a lot of money on examining defects. The Department for Public Relations and Mass Media of the Supreme Court said that local courts incorrectly apply the statute of limitations for management companies. That's right: three years should be counted from the date of the claim of deficiencies. If the removal is refused, a construction expert examination should be initiated and a lawsuit filed with the court with a collective statement from the tenants. Details can be found in the Izvestia article.
The developer must be responsible for hidden defects.
The Supreme Court of Russia (SC RF) has considered a dispute (definition no. A61-393/2023) between the management company and the developer concerning the complete repair of the roof and waterproofing in a new apartment building. The management company filed a lawsuit because the developer refused to fix the defects. However, the local courts rejected the petition, citing the expiration of the two-year limitation period provided for consumer protection.
The Supreme Court overturned this decision, stating that in this case a five-year warranty period should be applied, which begins from the moment of transfer of the residential premises. In addition, the limitation period for the management company is three years and is calculated from the moment the deficiencies are discovered. The court also noted that the local authorities had not investigated the shortcomings of the developer's work and had not determined who should prove their presence or absence.
David Bagratuni, a member of the Union of Lawyers in the field of Construction and Housing and Communal Services, director of the investment and legal department of the development group Sum of Elements, explained that after the completion of the facility, the developer still continues to be responsible for its quality within the warranty period. As a general rule, it begins to operate from the date of transfer of the object to the participant of shared-equity construction. At the same time, the developer will not be responsible for the shortcomings that have arisen due to natural wear or violations of the requirements for the operation of the facility or as a result of improper repairs carried out by the shareholder himself, Bagratuni said.
In order for disputes to end fairly, it is better to resolve them when it is still possible to provide indisputable evidence identifying the culprit of the problems, the source stressed.
As noted by the expert of the direction "Popular Front. Analyst" Elena Gladkova, the problem remains extremely relevant today, as evidenced by the large number of appeals received from citizens. People talk about cases of substandard construction and difficulties in protecting their interests.
When buying apartments for a lot of money, consumers often face problems: uneven walls, sagging floors, falling tiles, blown windows, corners unsuitable for furniture installation. At the same time, developers, Narodny Front says, do not really eliminate these shortcomings, and therefore residents of new homes have to seek judicial protection of their rights and recover costs for correcting deficiencies and at least partially cover the costs of eliminating defects. With rising prices for works and materials, the amounts awarded were not always enough before, and taking into account the changes already adopted, this situation has only worsened.
There are alternative conflict resolution methods, such as mediation, to reduce the costs and time of litigation. However, Olga Vlasova, an adviser to the Federal Chamber of Lawyers of Russia, admits that in practice this is a rather expensive procedure that rarely ends with reconciliation of the parties.
— So far, I have not seen any cases where developers have agreed to mediation in this category of disputes, — says the interlocutor. — Although it is theoretically believed that mediation helps to resolve disputes and, consequently, reduces court costs. But in practice, everything is different.
Developers do not always refuse to eliminate shortcomings
Anna Zholobova, Managing partner of the Moscow office of the Regionservice Bar Association, notes that developers do not always refuse to eliminate the shortcomings in the facility identified after the transfer of the house to residents. Moreover, many companies today take a very conscious approach to preserving their reputation. The pro-consumer practice of settling such disputes has prevailed in the courts for quite a long time, the lawyer says.
So, starting from March 1, 2025, developers are allowed to approve their own minimum requirements for the result of finishing work at a shared-equity construction facility. It is assumed that the measure will improve the quality of rented apartments, since their own standards should not set requirements lower than those stipulated in the order of the Ministry of Construction of the Russian Federation (No. 91/pr).
At the same time, he is a Candidate of Law, lecturer at the Department of Family and Housing Law of the O.E. Kutafin Moscow State Law University (MGUA) Georgy Pachulia draws attention to the following: if an object is purchased under a participation agreement and construction defects are found in it, then the developer's warranty period is reduced to one year, according to new amendments to Federal Law No. 214. Moreover, the warranty period was five years until January 1, 2025. And according to the purchase and sale agreements, as the Supreme Court rightly pointed out, it was three years from the moment of the claim of deficiencies.
How can we reduce the cost of conducting examinations to identify defects and determine their causes? The market value of the pre-trial examination ranges from 16 to 60 thousand rubles, it all depends on the qualifications of the specialist and the authority of the expert organization. In court, these costs are reimbursed by the court when making a decision (if they are confirmed by relevant documents), notes George Pachulia.
He also points out that in judicial practice, developers almost always file petitions for the appointment of a judicial construction and technical expertise. Representatives of developers argue this by distrust of the pre-trial investigation and the lack of warning from the pre-trial expert about criminal liability for knowingly false conclusions.
According to the Moscow State Law Enforcement Agency, the amounts for conducting a forensic examination in the capital region range from 80 to 160 thousand rubles.
If we are talking about defects in the common property of the facility, it is possible to reduce costs by collecting alternative evidence, recalls Maria Spiridonova, a member of the Russian Bar Association. Including by contacting the management company, as well as the bodies conducting state housing supervision.
— In this category of cases, it is the developer who must prove that the defects were not his fault, but during the operation of the MCD, — concluded Spiridonova.
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