How to recover from the developer 194 million rubles. For short -razings in the apartment
“Kommersant” learned about the rare case of a huge penalty from the developer due to the shortcomings of the sold apartment. The citizen found defects in the decoration and filed a lawsuit to the developer. The lawsuit lasted several years, as a result, the courts obliged the developer to eliminate the shortcomings and pay a penalty of 1% of the cost of the apartment (30 million rubles) for each day of delay with the repair. The amount of penalties has already reached 194 million rubles. And continues to grow. The loser developer is trying to appeal the decision, accusing the plaintiff of « consumer extremism. » Lawyers believe that the maximum that the developer can count on is a decrease in the amount of the penalties, but for this it will be necessary to prove the fact of the uncertain of workers in the apartment for repairs.
The dispute around the record penalty turned between LLC Arp Frunze district (part of the FSK group) and Ksenia Mgar. In February 2023, a citizen acquired from an ARP for 30.2 million rubles. An apartment in Moscow under a contract of sale. After a couple of months, Mrs. Mgar found flaws in the decoration of housing and a slight deviation in the area. There was no disagreement, and then the consumer sued.
In September 2023, the argument was examined by the Butyrship District Court of Moscow. The first instance rejected claims to the size of real estate, since the contract allowed changes in the area, but agreed with a poor -quality decoration. As a result, the developer was obliged to correct defects and pay a penalty of 250 thousand rubles.
The plaintiff demanded a penalty of 7.3 million rubles. For the period from April 24 to May 17, 2023, and for the subsequent period of delay with repair – 1% of the cost of the apartment per day, that is, more than 9 million rubles. per month.
Around the size of the penalty and judicial battles unfolded. In June 2024, the dispute examined the cassation, which sent the case for a new consideration to an appeal due to the ambiguity, “for what specific period” and from what amount the penalty was reduced.
In the order of appeal, the Moscow City Court in August 2024 calculated the penalty under Art. 23 of the Law « On Protection of Consumer Rights » – 1% of the price of the apartment for each day of delay in the implementation of the repair to eliminate the shortcomings of the finish. For the period from April to September 2023 (before the decision of the Butyrsky district court), the amount of penalties amounted to 43.2 million rubles, which the appeal considered it disproportionate and reduced it to 806.8 thousand rubles. But in addition, the Moscow City Court ordered the developer to pay the penalty in full (1% of the property of property per day) “for the future period” – from September 2023 under the date of “fulfillment by the defendant’s obligations to eliminate deficiencies in the apartment”.
In October 2024, the company filed a complaint with a cassation, which referred to “consumer extremism”, saying that a citizen does not provide access to the apartment for repairs. The developer claimed that he had repeatedly tried to contact the plaintiff on the phone and sent her telegrams, but the requests were ignored. In confirmation, the company provided acts of prevention to the apartment of September 2023. But in January 2025, the Cassation Court refused to satisfy the complaint.
The developer did not come to terms with this outcome and made new attempts to reduce the penalty.
So, in March, the company asked the Moscow Court to revise the case due to newly discovered circumstances, but received a refusal, since the court found that the developer actually tried to challenge the judicial act that entered into force. In addition, in April, the defendant filed a complaint against the decision to recover the penalty to the Supreme Court of the Russian Federation, it has not yet been considered. And in May, the developer filed a lawsuit against Ksenia Mgar to the Butyrsky court to reduce the penalty, the hearing was scheduled for August.
Meanwhile, the size of the penalties for June 17, according to the calculations based on a court decision, is 194.17 million rubles, which is six times more than the cost of the apartment. Moreover, the amount continues to grow, since the repair has not yet been completed. Ksenia Mgar turned to the bailiffs for the forced recovery of the penalty from the developer, at the moment it was possible to get 1.3 million rubles, said “Kommersant” lawyer Ilya Grigoryev, representing the interests of the plaintiff. He does not see the grounds for revising the case and claims that no obstacles were repaired to the defendant. FSK did not respond to Kommersant’s request.
Consumer skew
Lawyers say that the recovery of the penalty for the shortcomings of the sold goods (apartment, car) in an amount several times higher than the value of the property itself is extremely rare in practice, and they did not see such large amounts of penalties as in this matter. According to the lawyer K & P.group Murat Hatefova, the size of penalties for developers for non -disabilities largely depends on which transaction the purchase of housing was drawn up. If it were a shared participation agreement (DDU), then the penalty would not exceed the cost of eliminating the deficiencies, explains Vladislav Strelkov, leading lawyer Enforce Law Company. But if the developer sold the apartment under the sale and sale agreement and “does not eliminate the shortcomings for years, the penalty drip even after the cost of the apartment,” admits the Optima Development CEO David Harrian. At the same time, he notes, some clients « purposefully engage in consumer terrorism, trying to earn even on minor defects. »
According to Murat Hatefov, the choice of a contract of sale of the apartment is due to the desire of developers to avoid the application of guarantees and liability mechanisms provided for by law for DDU. There may be other reasons: for example, often apartments are sold under a contract of sale in connection with the completion of the construction of the house, adds the general director of the Mitra legal company Soslan Kairov.
The lawyers surveyed “Kommersant” believe that the developer has little chance of revising the case.
“By the letter of the law, the consumer is right”, and “the defendant’s attempt to introduce“ new ”acts of prevention into the apartment in the process, says Mr. Kairov. At the same time, Vladislav Strelkov believes that the court “determined only the procedure for accruing the penalty”, and the specific “calculation of penalties should make the bailiff as part of the enforcement proceedings,” and it is “that it is necessary to submit acts confirming the resources in housing” to reduce the amount of penalties.
Mr. Strelkov considers the prospects for satisfying the developer’s response to reduce the penalty “doubtful”, believing that the defendant is trying to “change the court decision that has entered into force, which is unacceptable”. In his opinion, the restriction by the court of calculating the penalty (maximum amount or calendar date), when it should be accrued before the date of execution of the court decision, would contradict the goals of this mechanism.
In general, in order to prevent the accrual of such impressive non -storage, lawyers advise developers to provide evidence in time confirming obstacles in access to housing. For this, law enforcement agencies that manage residential buildings of the company, resource -supplying organizations, can also be used, you can use video recording, says the partner of the RU.COURTS Yur.cours Aleksey Ageev. But if the court finds out that evidence of inadmissions in the apartment is formed “retroactively”, there will be a critical attitude towards them, Soslan Cairov warns.
