Delaying repairs by builders (contractors) is one of the most common problems in practice. Completion of work on the repair and decoration of housing is sometimes postponed for months - due to justified (and not justified) reasons. During this period of delay, customers lose time, money and nerves: after all, what can be more painful than waiting? Moreover, delaying repairs often leads to losses: often, due to unfinished work, people cannot move into their own apartment! They have to live all these months in a rented apartment, while paying the rent.
On this topic today, there is complete confusion in various sources on the Internet (informational articles, forums). Incompetent sources give incorrect advice with outdated (2008 - 2010) or legally illiterate information.
We studied the issue, and came to the conclusion that there is practically no correct guide in the public domain. about what to do if the builders have delayed the repair period, and what rights the customer has in this case.
The lawyer of our site told in detail how to act in this situation (spoiler alert: everything is quite simple!).
The builders delayed the repair: what should the customer do?
Failure to meet deadlines is a common occurrence when carrying out repair work. From the point of view of the law, this is a violation, for which liability is automatically incurred. Moreover, the customer has the right to declare his requirements at every stage of the repair.
We consider cases when repairs are made in a residential area - an apartment, a room, a private house. That is, finishing and repair services are provided to an individual (owner or tenant, tenant of an apartment) for domestic purposes. This does not include the renovation of offices and other premises used for any business for commercial purposes.
The law that regulates situations related to services to individuals for household purposes is the federal law "On Protection of Consumer Rights."
According to article 28 of this law, in cases where the repair terms prescribed in the contract are violated, the customer (that is, the consumer of these services), at his choice, has the right:
- assign a new term to the performer (contractor) - that is, demand that all work be completed by a specific date;
- to entrust the performance of this work to third parties for a reasonable price or to perform it on their own and demand from the contractor reimbursement of costs incurred (costs must be confirmed documented);
- demand a reduction in the cost of the work performed (the request is made in the form of a claim);
- refuse to fulfill the contract and demand compensation for losses.
Kozhevnikova Ekaterina Sergeevna
Legal adviser, practicing since 2004. I provide full legal support for the entrepreneurial activities of construction companies and individual entrepreneurs.
Right to claim damages
In addition to the aforementioned rights, the customer (consumer) has the right to demand also full compensation for losses caused in connection with the delay in the execution of work.
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What are losses?
According to the Civil Code of the Russian Federation (Art. 15):
- expenses that the injured person has already incurred or will have to incur,
- loss or damage to his property (real damage),
- as well as the unearned income that this person would have received under normal conditions if his right had not been violated (loss of profit).
That is, repair losses include:
- The cost of renting housing for the period of delay in repairs (if there is no other own apartment and registration in it);
- Any damage or damage to materials for repair, if it is due to delay, etc.
Penalty for delay in apartment renovation
In addition to all the above rights, for disruption of the completion date of the repair, the customer may demand payment of a penalty in the amount of 3% of the price of work for each day of delay.
For example: The contractor under the contract is obliged to carry out repair work for the total amount of 100,000 rubles. The contract stipulates the deadline for the completion of the repair, but by this date the work was completed only for the amount of 70,000 rubles. The rest of the work (in the amount of 30,000 rubles) was fully completed only after 22 days. In this situation, the amount of the penalty is: 19,800 rubles.
How is the delay recorded?
Failure to complete the repair deadline is recorded upon signing the acceptance certificate.
That is, for example: in the contract for the renovation of the apartment, the deadline for the completion of the renovation is indicated: until May 15, 2020. In fact, all the work was carried out by the contractor and handed over according to the acceptance certificate only on June 1. The date of signing the act by the customer will be a confirmation of the fact of delay (in this case, by 16 days).
How to file a claim for the collection of a forfeit for a delay in repairing an apartment?
The claim to pay a penalty for the delay in repairing an apartment is drawn up in writing. The law does not establish a unified form, but in practice a number of requirements are imposed on such a document.
Contents of the claim with the requirement to pay a penalty for late work:
- The name of the construction company, individual entrepreneur or full name of a private foreman;
- Link to the clauses of the agreement and the exact description of events in chronological order;
- Delay period and full calculation of the amount of the forfeit;
- Indication of the violated articles of the law "On Protection of Consumer Rights";
- The requirement to pay the amount of the forfeit within a specific period;
- Requisites for non-cash transfer of funds (optional);
- Date, signature.
Important! The amount of the forfeit cannot exceed the total cost of the work (or stage of work) under the contract. If, according to the calculation, the amount of the penalty is higher, then it must be reduced to the cost of overdue works.
Download a sample of a claim for the recovery of a forfeit:
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We offer 2 options for samples: on the recovery of a forfeit, as well as a forfeit + damages, to download follow the link >>>
How is the claim submitted?
It is important to hand over a written claim to the contractor, and have a confirmation of such handing in hand. This is important because filing a claim is a pre-trial dispute resolution procedure. This is a mandatory procedure established by law. If the dispute cannot be resolved peacefully, and you have to file a claim with the court, it will not be accepted without confirmation that the claim procedure was complied with (that is, without confirmation that a claim was sent to the contractor, he received it, but did not voluntarily fulfill it requirements).
Ways to properly submit a claim:
- Personally hand over to the contractor's representative against signature;
- Send to the contractor by registered mail with acknowledgment of receipt;
- Send by courier delivery;
- Send a telegram with a short text of the claim.
In general, any method is suitable that allows you to reliably prove that the addressee has received a claim on the hands.
Claim handed: what's next?
Article 31 of the Law "On Protection of Consumer Rights" establishes a 10-day period for the executor (contractor) to voluntarily fulfill all legal requirements of the consumer (customer). If, after 10 days, the contractor does not receive a response to the claim or the the amount of forfeit and / or losses - you can file a claim in court and demand the enforced recovery of these amounts.
Filing a statement of claim in court for a consumer is free of charge (not subject to state duty). When filing a lawsuit, the consumer has the right, in addition to the amounts of forfeit and losses, to demand also reimbursement of expenses incurred (for example, for the services of a lawyer), as well as a fine of 50% of the total amount in the claim. The fine is collected not for the state revenue, but for the consumer's pocket. This measure was introduced into the law in order to encourage service providers to comply with consumer requirements on a voluntary basis and not burden the courts.
Experienced contractors are aware of this provision of the law, and, more often than this, they pay voluntarily, trying not to bring it to court (it will be more expensive for them).
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Ask an expert
I signed a contract with a construction company. They have their own form of contract, it spelled out the amount of the penalty 0.1% for each day of delay. Does this mean that for a month of delay I can only demand these pennies?
This is common. Firms prescribe a low percentage of forfeits, relying on the fact that consumers do not know the law and do not know how to apply it. And often they get away with this: no one simply argues and does not demand what is laid down by law, since the contract has different conditions.
Here's what you need to know: understating the amount of the forfeit in the contract is against the law!
First, p. 5 tbsp. 28 of the Law "On Protection of Consumer Rights" contains the condition: "An agreement on the performance of work (provision of services) between the consumer and the contractor may establish a higher amount of the penalty (penalty)." That is, higher is possible, lower is not.
Secondly, in p. 1 tbsp. 16 of the same law provides for the rule: established by laws or other legal acts of the Russian Federation in the field of consumer protection, are recognized invalid ". That is, the condition of the agreement on the understatement of the amount of the penalty is not applicable. The consumer has the right to demand what is required by law.
Is it possible to write about the termination of the contract in one claim, as well as demand to pay a forfeit and reimburse losses? Or do you need to arrange everything separately?
Yes, you can state all your requirements in one claim, the law does not prohibit this.
If the contract for the renovation of the apartment was concluded with a private master (natural person), can I claim a penalty from him for violation of the terms under the contract under the Law "On Protection of Consumer Rights"?
Yes, you can. Even if a private craftsman is not an entrepreneur, he provides you with a service on a commercial basis and receives a reward for it. Such activities are subject to the regulation of the Consumer Protection Law. This is confirmed:
the clarifications contained in cl. 12 Resolutions of the Plenum of the Supreme Court of the Russian Federation of June 28, 2012 N 17 "On the consideration of civil cases by courts in disputes on the protection of consumer rights"
as well as jurisprudence: see. Appeal ruling of the Moscow City Court dated March 14, 2018 No. in case No. 33-9700 / 2018.
You can download the text of the court decision for review below.
- Appeal ruling of the Moscow City Court dated March 14, 2018 No. in case No. 33-9700 / 2018.