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In the public prosecution office of the city criminal cases, as well as appeals of citizens on the protection of the rights of investors in the housing market are under constant control

In the public prosecution office of the city criminal cases, as well as appeals of citizens on the protection of the rights of investors in the housing market are under constant control.

 In total in production of the investigation of the Office of Investigations of Ministry of Internal Affairs of Russia in Chelyabinsk there were 8 criminal cases of this category.

  Criminal cases were initiated on the following problematic objects of Chelyabinsk:   Str. Ostrovskogo, 38 "a", str. Ostrovskogo, 35 - 2 criminal cases (criminal proceedings number 965 739 and the number 5,800,773);   Str. Salyutnaya, apt. 21, Geroev Tankograda, 63 "a" (a criminal case no. 4501184).; apartment housing located between houses no. 38 and 40 on the street Molodogvardeytsev (criminal case no. 4701616); Str. Brat'ev Kashirinykh 2 d (criminal case no. 5801198), Str. Kaslinskaya, 99 "a" (a criminal case no. 5801202), Komsomolsky prospect, md, 18 (criminal case no. 5801226), and a criminal case no. 515 248 on the theft of citizens' funds listed for land plots and houses in the village of Petrovsky -2.

Currently 7 persons were indicated of 5 criminal cases.

Thus, in the criminal case no. 4701616 the head of LLC "Ural-stroitel'" Pitkin I.D. was indicted under the part 4 of art. 159 of the Criminal Code of Russian Federation on the fact of embezzlement of funds of a citizen R., entered into a preliminary agreement on the conclusion of the future contract  of equity participation in the construction of a residential apartment building, located between 38 and 40 houses on the street Molodogvardeytsev in Kurchatovsky district of Chelyabinsk with LLC "Ural-Stroitel'".

 On this criminal case 07/03/2013 Soviet District Court of Chelyabinsk      bring in the verdict of guilty by which Pitkin ID was convicted of an offense under part. 4 of art. 159 of the Criminal Code, he was sentenced to imprisonment.  The verdict of the court has come into legal force.

Pitkin I.D., who is already a de facto head of LLC       Construction Company "Novotekh" in the investigation of the criminal case no. 4407124 on the facts of embezzlement of funds of equity holders in the construction of an apartment building at the intersection of str. Kaslinskaya and Br. Kashirinykh 32,33, was also convicted under part 4 of art. 159 of the Criminal Code.

Currently, the court is hearing the criminal proceedings against the leaders of LLC "Atrium" Burlakov V.O. and Suchilov V.G. under part  4 of art. 159 of the Criminal Code on the fact of theft      by false pretences of people's funds paid for the provision of prospective services for registration of documents for the land and building a house in the village of Petrovsky-2.

Also, according to the results of the preliminary investigation of criminal cases the chairman of the board Building Society "Dom" Shamin A.A., the former head of "agricultural cooperative "Rodnichok" Pleshakov V.A., Semenov I.G., a director of the agricultural cooperative "Rodnichok" Chernyakova L.L. were convicted. 

Situation with defrauded real estate investors remains tense.  The reasons for this situation can be attributed to legal illiteracy of the population, and well-thought-out scheme of real estate developers.

So, there are many "shady" schemes of real estate developers (co-investment agreement, loan agreement, the purchase (sale) with the use of promissory notes, contract pre-sale, the purchase of the dwelling through the housing cooperatives, claim assignment agreement (contract of assignment), and others.) .

 I would like to draw the attention of citizens on a few points. At the request of the interest holder the developer must submit for review a building permit, a feasibility study for the project of building a house, the state examination of project documentation, the documents confirming the rights of a builder for the land plot (certificate of ownership, lease agreement). Information about the developer must contain information on the construction project, which involved the developer for the past three years, indicating the location of the object, terms of commissioning according to project documentation and to the actual date. Shared construction participation agreement passes obligatory state registration. Any terms of the contract, relieving the developer from liability or infringing the rights of the buyer shall have no legal force.

Knowledge of basic requirements for the developer and reasonable foresight of participants of shared construction will prevent them from entering into the category of "deceived investors".

I would like to give you an another example. So, in the        investigative unit of the Office of Investigations of Ministry of Internal Affairs of Russia in Chelyabinsk the inspection is being carried out on the appeal to Rosreestr Office of the Chelyabinsk region of a c. P. about the registration of the shared construction participation agreement.

  The audit found that c.   P. and the Head of LLC CC "Novotekh" signed an agreement of shared participation in the construction of an apartment building.

 Citizen P. hadn't sent Rosreestr's Office an application for registration of the contract in a timely manner, made a part of the money to the cashier of LLC CC "Novotekh". Subsequently, when contacting Companies House, she was informed that the apartment had been registered in the other equity holders.  

 In the course of pre-investigation audit it was found that the procedure for receiving funds from the public in the company LLC CC "Novotekh" did not meet the requirements of the Federal Law dated 30.12.2004 no. 214-FZ "About participation in equity construction of apartment houses and other real estate objects and about modification of some legal acts of the Russian Federation".

Thus, according to p. 3 art. 4 of the Law the contract of a joint construction shall be in writing, shall be subject to state registration and shall be deemed concluded from the moment of such registration.

Due to par. 1, part 2, art. 1 of the Law raising funds from citizens related to citizens's rights of ownership of premises in apartment buildings, which at the time of raising such funds from citizens are not put into operation, shall be permitted only on the basis of the contract of a joint construction.

Thus, the actions of fund raising from citizens with the loss of contract (unregistered contract ) of a joint construction are illegal.

In these circumstances, after the additional measures the issue of the presence (or absence) in the actions of the leaders of LLC CC "Novotekh" constituent element of offence under part 1,art. 330 of the Criminal Code of the Russian Federation will be dolved.

In addition, it is necessary to pay attention to the provisions of the Chelyabinsk Region Law dated 28.06.2012 no. 344-ZO "On measures of state support to citizens affected by the actions (inaction) of developers and (or) other persons raising citizens funds for building (creating) apartment houses in the Chelyabinsk region", that establish the following forms of state support to citizens in the form of provisions:

1) for the ownership of free land with plots of land owned by the state or municipal property, for individual housing construction or ancillary services with the construction of a residential house on the farm land in accordance with the Law of the Chelyabinsk Region "On the free allocation of land in the ownership of citizens to individual housing construction or ancillary services with the construction of a residential house on the farm land in the Chelyabinsk region";

2) based on the contract of social rent with living accommodation of state housing stock of the Chelyabinsk region in accordance with the Law of the Chelyabinsk Region "On the order of providing under contracts of social rent certain categories of citizens with living accommodation of the state housing stock of the Chelyabinsk region";

3) with lump-sum of social payments for: a) the acquisition of the dwelling; b) the payment of an initial payment on delivery of residential mortgage credit (loan) for the acquisition of property; c) housing loan payment (loan) and interest for the use of credit (borrowed) funds, including a mortgage, taken by deceived investors or a member of their family to acquire the dwelling, including the contract of a joint construction concluded by deceived investors or a member their family after receiving confirmation of the impossibility of satisfying their property or monetary claims. Confirmation of inability to meet the defrauded real estate investors' requirements of property or money is a judgment or decision of Court Bailiffs of the termination of the proceedings for the recovery from the debtor's funds; d) with housing loan payment (loan) and interest for the use of credit (borrowed) funds, including a mortgage taken by deceived investors or a member of their family to acquire the ownership of the dwelling of a construction contract, the failure of which led to the recognition of the citizen being defrauded investor.

State support is provided by the choice of "deceived investors" in one of the forms mentioned above.

Other forms of state support of the Chelyabinsk region are not provided by the legislation.

 

Senior Assistant of the city prosecutor

junior counselor of justice E.Yu.Blinovskih

 

The assistant of the city prosecutor

Lawyer of 3 class AD Nigmatulina