It happens that after the completion of the construction of the house, the area of \u200b\u200bthe apartment becomes larger or smaller. In this material, we propose to find out why this happens, and how to get a refund of overpaid money or, conversely, pay extra for excess living space.
In the process of accepting an apartment, a shareholder may find that the area of the apartment he bought does not correspond to the declared one. Why do discrepancies appear with the design area?
The thing is that during construction, technical errors can be made, which lead to a change in the actual area of \u200b\u200bhousing. It turns out that each shareholder, purchasing an apartment at the construction stage, is not immune from the need to pay extra for suddenly appeared square meters.
If, during measurements, the area of the apartment becomes larger than that specified in the share agreement, the developer may require the shareholder to make an additional payment. There may be a diametrically opposite situation: the area of the apartment has become less than the design one - which means that the equity holder can count on compensation from the developer.
Are there norms for possible discrepancies in the living space of apartments in houses under construction? Legislatively, such norms are not established, however, practice shows that the discrepancies are usually insignificant, and average 0.1-2 square meters, depending on the area of the apartment.
Least of all, discrepancies between the design and actual area of apartments in new buildings are recorded in new panel-type buildings, since such houses are built from prefabricated components that have strictly defined dimensions.
Most often, possible deviations are prescribed in each specific equity agreement. The allowable discrepancies between the paid and the actual area of housing are usually associated with the thickness of the supporting structures. Given such tolerances, it is very difficult to more or less accurately calculate in advance the possible errors in the area during construction.
Excess square meters: why do they appear?
According to experts, the first and most basic reason for the occurrence of unaccounted square meters of housing are the errors in the thickness of the supporting structures, which were mentioned above. And if during the construction of a building it becomes necessary to make changes to the project, then the appearance of extra or additional square meters in the apartments of the house cannot be avoided. If such a situation arises, the construction company is obliged to notify all shareholders of the planned changes and make these changes to the DDU.
Despite the fact that many buyers consider the change in the declared area of apartments to be the result of construction errors and negligence of the developer, in fact, such cases are not typical, rather this is an exception to the rule. Of course, one cannot discount the experience of builders and their professionalism, but modern technologies for the construction of residential buildings are very accurate, so builders' mistakes can very rarely be the cause of errors.
We have already said that the least likely cases of overlays with the area of apartments occur in prefabricated houses, since in fact such buildings are a constructor, they are assembled from ready-made blocks. In such houses, the discrepancies in area rarely amount to more than one "square". More common today is monolithic and monolithic-brick technology, here it is allowed to change the project during the construction process.
If such a house is built according to an individual project, then the discrepancies in area can be very significant. It happens that an apartment can become larger or smaller by 5-8 square meters, the average error for houses of monolithic technology is 0.5-4 square meters. m.
The change in the area of \u200b\u200bthe apartment is also associated with the number of rooms - in a one-room apartment, the error will be less than in the "three rubles". It can also happen this way: the total area corresponds to that specified in the contract, but there have been changes with the living area - for example, the corridor has become larger, but the living room or children's room has become smaller. Of course, not all buyers will like such changes.
Experts say that in houses built using monolithic-brick technology, deviations from the actual area can hardly be avoided. Usually, in the equity participation agreements in the construction of such apartment buildings, the possibility of deviations from the area is prescribed.
There may be various methods for resolving such issues: some do not require additional payment for the square meters that have appeared, but are also not ready to return the money paid by the buyer if the area of the apartment becomes smaller; others prescribe in the contract that the deviations that appeared during the construction process will be paid by the parties to the contract. Thus, in the latter case, the apartment may become more expensive than the buyer originally paid for it.
Experienced builders understand that it is impossible to build a large multi-storey building without at least small deviations in area. Even building codes allow deviations of building structures up to 20 mm, which will affect the area of apartments, depending on the number of rooms, the difference between the actual and declared area up to 1.5 meters.
Experts believe that dimensional errors arise for a number of reasons:
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The area of each apartment is calculated at the design stage of the house; at this stage, all issues related to the communications of the house are not worked out in detail. Already at the stage of working with construction documentation, engineering communications are calculated more scrupulously, changes are made to the dimensions of chimneys, cross-sectional diameters of ventilation systems or pipe sizes. Often there is a need to change the area of communication systems, which, of course, affects the area of apartments.
When working out the working documentation of the building, the most accurate calculation of the elements of the supporting structures is carried out, as a result of which the sections of monolithic walls or columns may change - increase or decrease. When BTI technicians take measurements, all, even the most insignificant discrepancies in size add up, as a result, the resulting difference in the area of apartments can be very noticeable.
The possibility of construction miscalculations, the consequence of which will be a change in the area of \u200b\u200bthe apartments of the house, can also not be excluded, although such cases are quite rare.
Who will pay?
As a rule, the share agreement states that if the error in the area of the apartment does not exceed one square meter, no recalculation will be made. In the event that the error is higher, most often the equity holder is required to pay extra for the square meters that have appeared.
If the discrepancies in area are very significant, and exceed 5% of the area indicated in the DDU, and the shareholder refuses to pay for the extra "squares", then the latter has the right to refuse the purchased apartment and demand the return of all the money paid. Thus, the conditions for the additional payment (or its absence) are prescribed in the DDU, while the calculation must be made before signing the act of acceptance of the apartment.
When the opposite situation occurs, and the area of the apartment has become less than expected, the developer is responsible for returning the money at the rate of the cost of one square meter, established at the time of signing the DDU. By analogy with the previous situation, the buyer can unilaterally terminate all agreements with the developer if the actual area of the apartment has become less than the estimated one by more than 5%.
The shareholder sends a letter to the developer indicating the reasons for termination of the equity participation agreement, and receives back all the money paid. If the shareholder agrees with such a change in the area of the apartment, and does not refuse to purchase, then the developer is obliged to recalculate and return to him the overpaid amount.
Usually, all conditions for the return of money are entered into the DDU, all settlements between the parties must be made before signing the act of acceptance of the apartment. Often in the DDU there is a condition that when the area changes within 1 sq. m. in the smaller side, the developer is exempted from the need to pay extra, but if the area of the apartment has increased, the interest holder is obliged to pay money for additional square meters. Agree, not quite a fair condition!
But market experts assure that such "smart" developers today are becoming less and less.
About established practice
Most often, in DDU, the conditions for the parties are equivalent, and the size of the error is 0.5 meters. If the area of the apartment has become less than half a meter, the developer will not compensate anything to the shareholder, just as in the case when the area has become more than 0.5 meters, the shareholder will not pay a penny extra. If the error is greater, usually the parties agree to make mutual settlements - to return or pay extra money.
When the construction of the house is completed, the developer is obliged to take measurements, in accordance with which a technical plan of the entire house is drawn up. Based on this document, and also taking into account the terms of the equity participation agreement, which specifies the procedure for possible recalculations, the developer is obliged to notify all equity holders in writing about changes in the area of apartments.
If there is an increase in the area by more than 0.5 meters, the shareholder makes an additional payment, but if there are fewer square meters, then the developer will pay the shareholder. The calculation of the additional payment or refund is made taking into account the cost per square meter indicated in the DDU.
If the area of the apartment has become smaller, the shareholder must send the developer an application for a refund, indicating in it the details of the account to which the compensation should be transferred. Usually the term for the return of non-cash funds is no more than 5 days. It is very important that all mutual settlements are made before signing the act of acceptance of the apartment.
This document should indicate the actual area of the apartment, the buyer will not need any additional documents - only the DDU itself and a personal passport.
It is important to understand that in case of an additional payment or refund, it is not the current market value of a square meter of an apartment that is taken into account, but its cost indicated in the DDU. Thus, if a shareholder at an early stage of construction contributed money at the rate of 40,000 rubles per "square", and at the time the house was put into operation, the cost per square meter increased to 50,000 rubles, then the difference in area will be paid based on the original price.
In this regard, of course, it is extremely unprofitable for the buyer to terminate the contract and demand a refund, since prices on the market have increased during the construction period, and it will hardly be possible to buy a similar object for the returned money, even at the initial stage of construction.
The issue of excess square meters is very important for buyers who used to buy an apartment - if they need to pay extra for additional space, they will need additional money in addition to monthly mortgage payments and a down payment. The amount can be significant, and you will have to think about where to get it, since with an increase in area by 4 sq. m. at the cost of a "square" of 40,000 rubles, you will need to pay an additional 160,000 rubles
People involved in construction are well aware of how difficult it is to build a house exactly according to the project, without allowing the slightest deviation from construction documentation. Even very well-known developers in the market sometimes put into operation their facilities, where some walls and corners are not correct. As for apartments in new buildings, one of the most common problems is their actual footage.
An agreement on equity participation in construction is quite often concluded by citizens long before the completion of the construction process. Therefore, the dimensions of future housing specified in the contract are always approximate. But in fact, the final footage turns out to be slightly more or, conversely, less than planned. What to do in such cases?
Many newcomers are faced with the fact that they receive from the developer not quite the same apartment as promised: the kitchen, for reasons they do not understand, turns out to be one meter larger, and the room, respectively, one or two meters smaller. To the question “why?”, the developer shrugs his hands and answers “because” ... It happened, and that's it. And there is no malicious intent here. Especially often this situation occurs in monolithic new buildings. It's no secret that they are mainly built by low-skilled guest workers. Therefore, the discrepancy in footage within 3-5% for monoliths is already considered almost the norm.
Sometimes such situations develop in panel houses of new, not yet "run-in" series. For example, when the popular P44-T series was just being introduced in the capital's market, the actual area of 3-room apartments exceeded the design area by 13 sq.m. Today, this no longer happens, and the difference in footage in the apartments of this series does not exceed one meter.
But even when a person acquires housing in an already built house, where finishing work is being carried out, there may be discrepancies in footage. Developers prefer not to count the area of apartments up to a centimeter, until the arrival of measurers from the BTI. “It's their job, let them count,” they say. And participants in shared construction have to be content with the data of project documentation. But there is another trick here: sometimes developers deliberately underestimate the area of apartments at the design stage in order to save on settlements with the city authorities and the general contractor. Of course, it is impossible to strongly distort the data, but such actions still bring some savings to the developer.
Buyers in a situation with extra meters can only be given one piece of advice: carefully read the contract, where this clause is for sure provided. That's just how he protects the interests of the citizen? After all, in most cases, he is obliged to pay extra to the developer for extra footage. And this surcharge is carried out at a price fixed on the day of the conclusion of the contract. Even if a square meter has risen in price during the construction of a house, it does not matter: they do not have the right to demand payment from the buyer at the new cost. So, participants in shared construction only benefit from such a situation; The apartment was bigger and more spacious.
But on the other hand, not all citizens need these additional meters, and even paid ones. But if the difference in footage is some 1-2 sq.m, then this is hardly important.
But after all, the apartment may turn out to be smaller than it is provided for in the contract. This situation is very unpleasant, and in this case the developer is obliged, in theory, to return to the buyer a certain amount of money for the lost meters. Unfortunately, the money is also paid at the old rates fixed at the time of signing the contract, and this can still be considered a favorable solution to the issue. It is worse when this clause is absent in the contract at all, and it turns out that the citizen paid for one apartment, and received another, less. And at the same time, no one is in a hurry to compensate him for the damage - neither moral nor material.
Therefore, it is so important to carefully study the contract even before signing. The situation with the footage of the apartment should be spelled out in it as detailed as possible, and the conditions for the buyer and the developer should be equally fair. Otherwise, unpleasant surprises simply cannot be avoided. The contract may contain the so-called threshold of 3-4%, which is not paid by either party. In other words, if the actual footage differs from the design by the value of this indicator, then no one pays extra to anyone; calculations are carried out only above this threshold. On the one hand, it is like a lottery; on the other hand, it allows you to protect both the developer and citizens from exorbitant costs due to extra or missing meters.
How to behave in cases where the developer insists on too much surcharge? If you have reason to doubt the results of BTI measurements, you should call the technician yourself and remeasure the apartment. Sometimes in such situations, a repeated measurement actually gives a smaller result, which leads to certain thoughts.
There are cases when the measurement of the BTI is carried out before the installation of interior partitions, although the project provides otherwise. In such a situation, it is necessary to require the developer to first fulfill his obligation to install partitions, and then measure the area of \u200b\u200bthe apartment. With partitions, the area of the apartment will be smaller, and this is in the hands of the citizen, and not the developer company.
But, most importantly, you need to carefully study the contract with a lawyer before signing it. Since then it will be much more difficult to prove something.
One of the ways for the developer to earn extra money on equity holders is to demand an additional payment for the additional square meters he has built. Often, when relocating, equity holders fall into the trap of learning that the developer refuses to transfer the already finished apartment to their ownership until the cost of additional living space is paid. Despite the fact that in most cases such requirements are not justified, and the amount of the additional payment, given the overall high cost of housing, is huge, future residents, believing the developer at their word, pay the announced amount as soon as possible, fearing not to get an apartment for use.
Not everyone knows that such actions of the developer are easy to challenge, and regardless of the terms of the contract. In a typical DDU, a fixed price is set for the amount that must be paid for an apartment under construction. Accordingly, if during the inspection of the apartment you were asked to pay extra for the increased area, you have the right to refuse the extra payment, referring to the terms of the contract. It must be understood that the key role here is played not by the requirements of the developer, but by contractual conditions. In addition, the company does not have the right, when providing an apartment in a new building, by law to require you to pay for additional square meters without inviting you to sign an additional agreement before that. At the same time, in some cases, the terms of the contract itself can put you in a strict framework for additional payments per square meter. meters due to improved living conditions - if, for example, you conclude a DDU when demolishing housing that is recognized as emergency.
If the area of the apartment does not correspond to that specified in the DDU, you will have the right to demand a penalty for violations of contractual obligations by the developer. In the event that, after measuring the BTI, it turned out that you were provided with an apartment with an area that did not correspond to the figure indicated in the DDU, you can increase the amount of the claim, referring to the provision of incorrect information.
In some cases, the contract concluded between you and the developer may contain a clause stating that the price indicated in the contract is not final and can be changed at the will of the parties. But even in this case, you can defend your rights without apparent difficulty, since according to Federal Law 214 “On Shared Construction”, the price indicated in the contract must be fixed. Accordingly, the mere fact of the presence of such an agreement in a clause will be sufficient grounds for declaring it invalid. At the same time, you, as a future owner, should not worry about the fate of your future housing - since it is not your fault that the developer provided you with the wrong form of the contract, and no one will withdraw the apartment from your property after the completion of the construction process.
Response to the requirements of the developer
It is possible to measure the exact area of the apartment only after the construction is completed with the help of BTI representatives. In the event that the words of the developer about the increased lived. areas have been confirmed, you will have several ways to defend your rights without resorting to additional payment.
You can send a claim to the developer and demand a penalty from him for failure to comply with the terms of the contract and at the same time demand to pay you money on account of the “extra” square meters he built. If the developer does not put up obstacles and pays you a penalty, from now on you can consider the cooperation ended. But if he flatly refuses to pay and threatens not to give you an apartment for use, you can sue. In such a case, the requirements for the claim will need to indicate:
the amount of the penalty for non-fulfillment by the developer of obligations under the contract
payment of additional amounts for non-pecuniary damage and loss
other claims against the developer that accumulated during construction (delay in the completion of the house, failure to provide timely information about delays in deadlines, etc.)
If you have no other options for obtaining an apartment except through the court, and at the same time, the downtime of your apartment is significant, the best option would be to contact a lawyer who will be able to assess the prospects for your case and competently build a line of defense in court. It must be remembered that each case of a construction dispute is individual and it depends on each nuance whether in the end you will have to pay extra per square meter. meters or not. There are cases in which it is initially impossible for a shareholder to defend his rights (if he signs an agreement on additional payment for square meters), and sometimes it is not difficult to prove the developer’s guilt, based on the provisions of the law (for example, if the shareholder is a former military man, families who are entitled to the provision of additional square meters).
In this case, the actual area of \u200b\u200bthe apartment will be of great help to the court. If you are not sure that the equity holder is right regarding the increased footage of the apartment, you can invite an independent appraiser to inspect the housing, who, having measured the apartment, will be able to give an independent assessment of its actual area, which in many cases may be less than the one insisted on by the developer. There are cases in which construction companies made massive demands to equity holders to pay extra for an extended vein. area, and at the same time, independent experts invited by equity holders made a decision stating that the area of \u200b\u200bthe apartment was even less than that indicated in the DDU.
Not in all cases, there is a direct fault of the developer in the changed area of the apartment: after all, it is almost impossible to guarantee jewelry accuracy during the construction process, and during construction, many subtleties and emergency situations can arise that do not depend on the quality of the developer's work - for example, weather conditions unsuitable for construction. But the increased area of the apartment in no way depends on the shareholder himself - therefore, the developer a priori does not have the right to require you to pay for the overfulfilled plan. From you as a shareholder in this situation, first of all, it requires a readiness for such actions of the developer. You should always remember that the requirement to pay extra for square meters is most likely presented to you because of the desire for additional income, and not because of force majeure. And it depends on how ready you are to defend your rights whether you will pay extra to the developer for the extras he may have invented. square meters or receive a penalty for violation by the company of obligations under the DDU.
In most cases, the area of a finished apartment built under a shared participation agreement differs from the project area. Therefore, shareholders inevitably have questions. Is it possible to return part of the price of the apartment if the area turned out to be less? Can the developer ask for an additional payment if the area of the apartment has increased? In this article, we will try to explain what a shareholder should do if the area of the apartment differs from the design one.
How can the price of an apartment be determined by DDU?
From January 1, 2017, in the Federal Law on participation in shared construction, there are 3 ways to determine the price of an apartment:
- as the amount of funds for reimbursement of construction costs + payment for the services of the developer;
- as the product of the price per unit of the total area of the object by the total area of the object (roughly speaking, from the price per 1 sq.m.);
- as the product of the price per unit of the total reduced area by total area object. This option is applicable to apartments that have balconies, loggias, verandas, terraces. The total reduced area is determined as the sum of the total area of the dwelling and the area of \u200b\u200bthe balcony, loggia, veranda, terrace with a reduction factor. These coefficients are set in the Order of the Ministry of Construction of Russia dated November 25, 2016 No. 854 / pr and are 0.5 for loggias, 0.3 for balconies and terraces, 1.0 for verandas.
Can the share price change at all?
The federal law "On Participation in Shared Construction" states:
By agreement of the parties, the price of the contract may be changed after its conclusion, if the contract provides for the possibility of changing the price, the cases and conditions for changing it (Part 2 of Article 5).
Therefore, the possibility of changing the price of the addition, both up and down, depends solely on the terms of your contract. Carefully reread your share agreement (and if you bought an apartment on the assignment of claims, also look at the assignment agreement). Usually, all issues related to the recalculation of the price are specified in the section "Price of the contract". If nothing at all is written there about the possibility of adjusting the price, this means that neither you nor the developer can demand an additional payment due to a change in area.
The condition on the possibility of additional payment for changing the area can be formulated, for example, as follows:
With this option, the price of the addition will change only if the actual area deviates from the design area up or down by more than 1 square meter. That is, if the deviation of the area does not exceed 1 sq.m., the payment under such an agreement will not be recalculated.
Attention! The equity participation agreement may provide that the condition for recalculating the price of an apartment is the conclusion of an additional agreement to the agreement. In this case, before paying the money to the developer / returning the money, you need to sign an additional agreement to the DDU and register it with Rosreestr.
What to do if the area of the apartment has decreased compared to the design?
So, the apartment is ready for delivery, BTI has already made the necessary measurements, and you know the final area. You carefully read your share agreement and found a clause there about the possibility of recalculating the price when the area is reduced.
- Write a letter to the builder's director. This can be done even before signing the act of acceptance and transfer of the apartment. The actual area of the apartment is always necessarily indicated in such an act. If the area deviates from the design area, it also often includes clauses about mutual settlements between the shareholder and the developer in connection with the change in area.
Be sure to include your current bank details in the application for a refund. Hand over the application against signature and be sure to keep your copy of the application with the developer's mark of receipt. It is also acceptable to send the application by certified mail with acknowledgment of receipt (in this case, keep the receipt of posting and the postal notice when it returns to you).
- If the issue of refunding money for excess footage is not resolved on your application and the refund period stipulated by the contract has expired, then you can collect overpayment through the court. To do this, you need to file a claim for consumer protection. .
Can the developer ask for an additional payment when increasing the area of the apartment?
Yes, if it is provided for in your share agreement. The terms and procedure for such an additional payment are prescribed in the contract, but usually this happens even before the signing of the act of acceptance and transfer of the apartment. Please note that the developer has the right to demand a penalty from you for late payment (Part 6 of Article 5 of the Federal Law “On Participation in Shared Construction), therefore, if possible, it is better not to delay the surcharge.
How to calculate the amount to be returned for the missing footage and the size of the surcharge to the developer for extra meters?
For this you need the following data:
- the design area of the apartment (usually specified in the "Subject of the contract" section);
- actual area (it can be taken from the act of acceptance and transfer of the apartment, as well as the technical passport issued by the BTI);
- the cost of 1 square meter of an apartment is prescribed in the equity participation agreement, usually after the clause about the price of the agreement, for example, like this:
Example 1:
51.6 sq.m. - project area; 52.7 sq.m. — actual area, price 1 sq.m. = 37878 rubles.
Actual area > design => the shareholder pays extra to the developer
To the surcharge to the developer = (52.7 sq.m. - 51.6 sq.m.) * 37878 rubles = 1.1 sq.m. * 37878 rubles = 41665.8 rubles
Example 2:
53.9 sq.m. - project area; 52.7 sq.m. — actual area, price 1 sq.m. = 55,000 rubles.
Actual area< проектной =>the developer returns the money to the shareholder
To be returned to the shareholder = (53.9 sq.m. - 52.7 sq.m.) * 55,000 rubles = 1.2 sq.m. * 55,000 rubles = 66,000 rubles
Is it legal to pay the developer 3% of the price of the contract for connecting to networks?
Yes, if such an additional payment is stipulated by the terms of your equity agreement.