Article 14.28. Violation of legal requirements on participation in shared construction apartment buildings and (or) other real estate objects

1. Attraction Money citizen associated with the citizen’s emerging right of ownership of residential premises in apartment building, which at the time of attracting such funds from a citizen has not been put into operation in the manner established by the legislation on urban planning activities, a person who, in accordance with the legislation on participation in shared construction of apartment buildings and (or) other real estate objects, does not have the right to do so and (or) attracts funds from citizens in violation of the requirements established by this legislation, if these actions do not contain a criminal offense , -

entails imposition administrative fine on officials in the amount of twenty thousand to fifty thousand rubles; on legal entities- from five hundred thousand to one million rubles.

2. Publication in media mass media and (or) placement in information and telecommunication networks common use developer project declaration(including changes made to it) containing incomplete and (or) unreliable information, the provision by the developer of incomplete and (or) unreliable information, the publication, placement or provision of which is provided for by the legislation on participation in shared construction of apartment buildings and (or) other objects real estate, as well as violation of the terms of publication and (or) placement of the project declaration or changes made to it -

shall entail the imposition of an administrative fine on officials in the amount of five thousand to fifteen thousand rubles; for legal entities - from two hundred thousand to four hundred thousand rubles.

3. Failure to submit fixed time to the body implementing regional state control(supervision) in the field of shared construction of apartment buildings and (or) other real estate, reporting in cases provided for legislation on participation in shared-equity construction of apartment buildings and (or) other real estate, as well as submission of reports containing false information, or submission of reports not in accordance with in full -

4. Failure by a person whose activities are related to attracting funds from citizens and legal entities for the construction (creation) of apartment buildings and (or) other real estate objects, within the prescribed period, to the body exercising regional state control (supervision) in the field of shared-equity construction of apartment buildings and (or) other real estate objects, information and (or) documents that are necessary for the implementation of the specified regional state control (supervision) and the list of which is established by the state authorities of the subjects Russian Federation, as well as the presentation of such information and (or) documents not in full or false information -

shall entail the imposition of an administrative fine on officials in the amount of five thousand to fifteen thousand rubles; for legal entities - from fifty thousand to two hundred thousand rubles.

Information about changes:

Federal Law No. 236-FZ of July 13, 2015 supplemented Article 14.28 of this Code with Part 5

5. Failure of a person ensuring, in accordance with the legislation on participation in shared construction of apartment buildings and (or) other real estate, fulfillment of the developer’s obligations to transfer residential premises under the agreement for participation in shared construction, within the established period, to the body implementing state registration rights to real estate and transactions with it, information about termination or early termination of the insurance contract and (or) early termination of the guarantee -

shall entail the imposition of an administrative fine on officials in the amount of five thousand to fifteen thousand rubles; for legal entities - from fifty thousand to two hundred thousand rubles.

Information about changes:

Article 14.28 was supplemented by part 6 from October 1, 2018 - Federal Law of July 29, 2018 N 236-FZ

6. Unreasonable adoption by the body exercising regional state control (supervision) in the field of shared construction of apartment buildings and (or) other real estate, a decision to issue an opinion on the compliance of the developer and the project declaration with the requirements established by the legislation on participation in shared construction of apartment buildings and ( or) other real estate objects, or refusal to issue such a conclusion, if these actions do not contain a criminal offense, -

shall entail the imposition of an administrative fine on officials in the amount of fifty thousand to one hundred thousand rubles.

Note. If a person violates the requirements for attracting a citizen’s funds associated with the citizen’s emerging right of ownership of residential premises in an apartment building, which at the time of attracting such citizen’s funds has not been put into operation in the manner established by the legislation on urban planning activities, administrative liability established part 1 of this article, occurs in relation to each case of unlawful attraction of funds from a citizen separately.

ULYANOVSKY

REGIONAL COURT

Case No. 7 – ***2008 Judge Ch***

Solution

Judge of the Judicial Collegium civil cases Ulyanovsky

regional court Zhadnov Yu.M. (solely),

Having considered in open court the complaint of LLC "***" against the decision of the Leninsky District Court of Ulyanovsk on August 1, 2008, by which the court decided:

Resolution of the Minister of Construction of the Ulyanovsk Region dated July 11, 2008 on the involvement of companies with limited liability“***” to administrative liability for committing an administrative offense under Art. 14.28 part 1 of the Code of Administrative Offenses of the Russian Federation, left unchanged, and the complaint - without satisfaction,

installed:

By the resolution of the Minister of Construction of the Ulyanovsk Region dated ***.***, LLC "***" was found guilty of committing administrative offense, provided for in Art. 14.28 part 1 of the Code of Administrative Offenses of the Russian Federation, namely in attracting funds from citizens for the purpose of constructing apartment buildings by a person who does not have the right to do so in accordance with the legislation on participation in shared construction of apartment buildings and (or) other real estate. For committing this offenseOOO "***" a fine of 450,000 rubles was imposed.

Having disagreed with this resolution,OOO "***" appealed it to the Leninsky District Court of Ulyanovsk, whose decision dated August 1, 2008 rejected the complaint. The resolution of the administrative body was left unchanged.

In a complaint addressed to the Ulyanovsk Regional Court, LLC “***” does not agree with the court’s decision and asks to cancel it.

The complaint states that the administrative violation protocol was drawn up by an unauthorized person.

The circumstances set out in the resolution do not correspond to the actual circumstances of the case, since LLC "***" is constructing a five-story apartment building with the involvement of funds from participants in shared construction in accordance with the requirements of the Federal Law of December 30, 2004 No. 214 “On participation in shared construction...”.

The activities of LLC "***" were previously checked by regulatory authorities and under all the same circumstances, no violations of the law were found in the actions of LLC "***".

Having checked the case materials and studied the arguments of the complaint, I come to the following.

LLC “***” received a request to postpone the consideration of the complaint due to the fact that the director of LLC “***” was on a business trip. I believe that this request cannot be granted. The presence of the head of LLC "***" on a business trip is not a reason for postponing the consideration of the case.

In accordance with Part 1 of Art. 3 of the Federal Law “On participation in the construction of apartment buildings and other real estate ...” the developer has the right to raise funds from participants in shared construction for the construction (creation) of an apartment building and (or) other real estate only after receiving a construction permit in the prescribed manner, publication, placement and (or) submission of a project declaration and state registration by the developer of ownership of the land plot provided for construction or a lease agreement for such a land plot.

It was established that LLC “***” did not fulfill any of the above requirements.

Under such circumstances, LLC “***” unreasonably raised funds from participants in shared construction for the construction (creation) of apartment buildings.

By these actions, LLC “***” committed an offense under Part 1 of Art. 14.28 Code of Administrative Offenses of the Russian Federation.

The punishment imposed on LLC "***" corresponds to the sanction of Part 1 of Art. 14.28 Code of Administrative Offenses of the Russian Federation.

By virtue of Art. 4.5 of the Code of Administrative Offenses of the Russian Federation, the statute of limitations for bringing to responsibility under Art. 14.28 Code of Administrative Offenses of the Russian Federation one year.

I find the arguments of the complaint that the protocol on an administrative offense was drawn up by an unauthorized official to be untenable.

These arguments of the complaint are not consistent with the content of Art. Art. 23.64, 28.3 of the Code of Administrative Offenses of the Russian Federation, by decree of the governor of the Ulyanovsk region dated November 7, 2006 No. *** and by order of the acting Minister of Construction of the Ulyanovsk Region dated March 21, 2008 No. ***.

The arguments of the complaint that LLC “***” did not violate the law are also unfounded, since they are refuted by the case materials.

Considering the above, I find no grounds for upholding the complaint.

Guided by Art. Art. 30.1-30.9 of the Code of Administrative Offenses of the Russian Federation,

decided:

The decision of the Leninsky District Court of August 1, 2008 was left unchanged, and the complaint of LLC “***” was not satisfied.

New edition of Art. 14.28 Code of Administrative Offenses of the Russian Federation

1. Attracting a citizen’s funds associated with the citizen’s emerging right of ownership of residential premises in an apartment building, which at the time of attracting such citizen’s funds has not been put into operation in the manner established by the legislation on urban planning activities, by a person who does not have, in accordance with the legislation, on participation in the shared construction of apartment buildings and (or) other real estate objects with this right and (or) attracting funds from citizens in violation of the requirements established by this legislation, if these actions do not contain a criminal offense -

shall entail the imposition of an administrative fine on officials in the amount of twenty thousand to fifty thousand rubles; for legal entities - from five hundred thousand to one million rubles.

2. Publication in the media and (or) placement in public information and telecommunication networks by the developer of a project declaration (including changes made to it) containing incomplete and (or) unreliable information, provision by the developer of incomplete and (or) unreliable information , the publication, placement or provision of which is provided for by the legislation on participation in shared construction of apartment buildings and (or) other real estate, as well as violation of the deadlines for publication and (or) placement of the project declaration or changes made to it -

3. Failure to submit reports within the prescribed period to the body exercising regional state control (supervision) in the field of shared-equity construction of apartment buildings and (or) other real estate objects in cases provided for by law on participation in shared-equity construction of apartment buildings and (or) other real estate, as well as submission of reports containing false information, or submission of reports not in full -

4. Failure by a person whose activities are related to attracting funds from citizens and legal entities for the construction (creation) of apartment buildings and (or) other real estate objects, within the prescribed period, to the body exercising regional state control (supervision) in the field of shared-equity construction of apartment buildings and (or) other real estate objects, information and (or) documents that are necessary for the implementation of the specified regional state control (supervision) and the list of which is established by the state authorities of the constituent entities of the Russian Federation, as well as the presentation of such information and (or) documents is not complete volume or false information -

shall entail the imposition of an administrative fine on officials in the amount of five thousand to fifteen thousand rubles; for legal entities - from fifty thousand to two hundred thousand rubles.

5. Failure by the person ensuring, in accordance with the legislation on participation in shared construction of apartment buildings and (or) other real estate, fulfillment of the developer’s obligations to transfer residential premises under the agreement for participation in shared construction, within the prescribed period, to the body carrying out state registration of rights to real estate property and transactions with it, information on termination or early termination of an insurance contract and (or) early termination of a guarantee -

shall entail the imposition of an administrative fine on officials in the amount of five thousand to fifteen thousand rubles; for legal entities - from fifty thousand to two hundred thousand rubles.

shall entail the imposition of an administrative fine on officials in the amount of fifty thousand to one hundred thousand rubles.

Note. If a person violates the requirements for attracting a citizen’s funds associated with the citizen’s emerging right of ownership of residential premises in an apartment building, which at the time of attracting such citizen’s funds has not been put into operation in the manner established by the legislation on urban planning activities, administrative liability established Part 1 of this article occurs in relation to each case of unlawful attraction of funds from a citizen separately.

Commentary on Article 14.28 of the Code of Administrative Offenses of the Russian Federation

1. The object of the offense is relations related to the attraction of funds from citizens and legal entities for shared construction of apartment buildings and (or) other real estate on the basis of an agreement for participation in shared construction (hereinafter referred to as participants in shared construction) and the emergence of ownership rights among participants in shared construction for shared construction projects. The commented article is intended to provide guarantees established by law for the protection of the rights, legitimate interests and property of participants in shared construction.

Administrative offenses, liability for which is provided for in the commented article, encroach on the procedure for organizing and carrying out shared-equity construction of apartment buildings and other real estate, which is established Federal law dated December 30, 2004 N 214-FZ "On participation in shared construction of apartment buildings and other real estate and on amendments to some legislative acts RF" (hereinafter referred to as the Law).

Regulation of the procedure for raising funds from citizens and legal entities - participants in shared construction for the construction of apartment buildings and (or) other real estate on the basis of an agreement for participation in shared construction, as well as the procedure for participants in shared construction acquiring ownership of shared construction objects, establishes guarantees for the protection of rights , legitimate interests and property of participants in shared construction.

2. The objective side of this offense consists of the commission of the following illegal actions (inaction):

raising funds from citizens for the purpose of constructing apartment buildings by a person who does not have the right to do so in accordance with the legislation on participation in shared construction of apartment buildings and (or) other real estate (Part 1 of the commented article);

publication in the media and (or) placement in public information and telecommunication networks by the developer of a project declaration (including changes made to it) containing incomplete and (or) unreliable information (Part 2 of the commented article);

provision by the developer of incomplete and (or) unreliable information, the publication, placement or provision of which is provided for by the legislation on participation in shared-equity construction of apartment buildings and (or) other real estate (Part 2 of the commented article);

failure to submit within the prescribed period of time to the body exercising control and supervision in the field of shared construction of apartment buildings and (or) other real estate, reporting in cases provided for by the legislation on participation in shared construction of apartment buildings and (or) other real estate (Part 3 of the commented articles);

submission of reports containing false information (Part 3 of the commented article).

3. In accordance with Art. 3 of the Law, the developer has the right to attract funds from participants in shared construction for the construction (creation) of an apartment building and (or) other real estate objects only after receiving a construction permit in the prescribed manner, publishing and (or) posting a project declaration in accordance with the mentioned Law and after the state registration of ownership or lease rights of the developer to a land plot provided for the construction (creation) of an apartment building and (or) other real estate objects, which will include shared construction objects.

In addition to administrative liability under Part 1 of the commented article, it is possible to bring to civil liability - a citizen may demand the immediate return of the funds transferred to him, as well as payment of interest for the use of other people's funds, provided for in Article 395 of the Civil Code of the Russian Federation.

In accordance with paragraphs 1 and 2 of Art. 19 of the Law, the developer is obliged to publish in the media and (or) post on public information and telecommunication networks (including on the Internet) a project declaration, including information about the developer and information about the construction project, no later than fourteen days before the the developer concludes an agreement with the first participant in shared construction.

Art. 20 of the Law defines a list of types of information about the developer:

1) about the company name (name), location - for the developer - a legal entity, about the surname, first name, patronymic, place of residence - for the developer - individual entrepreneur, as well as about the work schedule of the developer;

2) on state registration of the developer;

3) about the founders (participants) of the developer;

4) about projects for the construction of apartment buildings and (or) other real estate in which the developer took part during the three years preceding the publication of the project declaration;

5) about the type of licensed activity, the license number, its validity period, about the body that issued this license, if the type of activity is subject to licensing in accordance with federal law and is related to the developer’s activities to attract funds from participants in shared construction for the construction (creation) of apartment buildings houses and (or) other real estate;

6) about the amount of own funds, financial result current year, size accounts payable on the day of publication of the project declaration.

On a quarterly basis, the developer is obliged to make changes to the project declaration concerning information about the amount of own funds, the financial result of the current year, and the amount of accounts payable on the day of publication of the project declaration. These changes are subject to publication in the manner established for the publication of a project declaration, within ten days from the date of amendments to the project declaration.

If the developer violates the specified requirements for the project declaration, the participant in shared construction has the right to apply to a court or arbitration court with a claim to declare the transaction invalid as made under the influence of a mistake, which entails the application of civil sanctions.

4. Publication by the developer in the media and (or) placement in public information and telecommunication networks of the project declaration and changes made to it with incomplete and (or) unreliable information, violation of the established deadlines for publication and (or) placement of the project declaration or changes it is the basis for bringing to administrative liability under Part 2 of the commented article.

5. In accordance with sub. 4 p. 2 tbsp. 23 Law Commissioner federal body executive power (Ministry of Finance of the Russian Federation - see Regulations on the Ministry of Finance of the Russian Federation, approved by Decree of the Government of the Russian Federation of June 30, 2004 N 329), exercising control and supervision in the field of shared construction of apartment buildings and (or) other real estate, has the right to receive quarterly from the developer reporting on the implementation of activities related to raising funds from participants in shared construction, including the fulfillment of their obligations under agreements for participation in shared construction, in the forms and in the manner established by the Government. Failure by the developer to provide specified information within the prescribed period or presenting it with false information serves as the basis for prosecution under Part 3 of the commented article.

Along with bringing the developer to administrative liability, it is possible to suspend or liquidate the developer’s activities by decision arbitration court(at the request of the authorized body).

6. The subjects of this offense are developers - legal entities, as well as officials.

In paragraph 1 of Art. 2 of the Law, a developer is understood to be a legal entity, regardless of its legal form or individual entrepreneur who own or lease a land plot and attract funds from participants in shared construction in accordance with the specified Federal Law for construction (creation) on this plot of land apartment buildings and (or) other real estate on the basis of a received construction permit.

7. The subjective side of the offense is characterized by guilt in the form of intent or negligence.

Code of Administrative Offenses

Article 14.28. Violation of legal requirements on participation in shared construction of apartment buildings and (or) other real estate objects

(introduced by Federal Law of December 30, 2004 N 214-FZ)

(as amended by Federal Law dated May 1, 2016 N 139-FZ)

shall entail the imposition of an administrative fine on officials in the amount of twenty thousand to fifty thousand rubles; for legal entities - from five hundred thousand to one million rubles.

(Part 1 as amended by Federal Law dated June 17, 2010 N 119-FZ)

entail the imposition of an administrative fine on officials in the amount of five thousand to fifteen thousand rubles; for legal entities - from two hundred thousand to four hundred thousand rubles.

3. Failure to submit reports within the prescribed period to the body exercising regional state control (supervision) in the field of shared construction of apartment buildings and (or) other real estate in cases provided for by the legislation on participation in shared construction of apartment buildings and (or) other real estate , as well as submission of reports containing false information, or submission of reports not in full -

(as amended by Federal Laws dated June 17, 2010 N 119-FZ, dated June 23, 2016 N 222-FZ)

(as amended by Federal Laws dated June 22, 2007 N 116-FZ, dated June 17, 2010 N 119-FZ)

4. Failure by a person whose activities are related to attracting funds from citizens and legal entities for the construction (creation) of apartment buildings and (or) other real estate objects, within the prescribed period, to the body exercising regional state control (supervision) in the field of shared-equity construction of apartment buildings and (or) other real estate objects, information and (or) documents that are necessary for the implementation of the specified regional state control (supervision) and the list of which is established by the state authorities of the constituent entities of the Russian Federation, as well as the presentation of such information and (or) documents is not complete volume or false information -

(as amended by Federal Law dated June 23, 2016 N 222-FZ)

shall entail the imposition of an administrative fine on officials in the amount of five thousand to fifteen thousand rubles; for legal entities - from fifty thousand to two hundred thousand rubles.

(Part 4 introduced by Federal Law dated June 17, 2010 N 119-FZ)

shall entail the imposition of an administrative fine on officials in the amount of five thousand to fifteen thousand rubles; for legal entities - from fifty thousand to two hundred thousand rubles.

(Part 5 introduced by Federal Law dated July 13, 2015 N 236-FZ)

shall entail the imposition of an administrative fine on officials in the amount of fifty thousand to one hundred thousand rubles.

(Part 6 introduced by Federal Law dated July 29, 2018 N 236-FZ)

Note. If a person violates the requirements for attracting a citizen’s funds associated with the citizen’s emerging right of ownership of residential premises in an apartment building, which at the time of attracting such citizen’s funds has not been put into operation in the manner established by the legislation on urban planning activities, administrative liability established Part 1 of this article occurs in relation to each case of unlawful attraction of funds from a citizen separately.

1. Attracting a citizen’s funds associated with the citizen’s emerging right of ownership of residential premises in an apartment building, which at the time of attracting such citizen’s funds has not been put into operation in the manner established by the legislation on urban planning activities, by a person who does not have, in accordance with the legislation, on participation in shared construction of apartment buildings and (or) other real estate objects with this right and (or) attracting funds from citizens in violation of the requirements established by this legislation -

shall entail the imposition of an administrative fine on officials in the amount of twenty thousand to fifty thousand rubles; for legal entities - from five hundred thousand to one million rubles.

entail the imposition of an administrative fine on officials in the amount of five thousand to fifteen thousand rubles; for legal entities - from two hundred thousand to four hundred thousand rubles.

3. Failure to submit, within the prescribed period, to the body exercising control and supervision in the field of shared construction of apartment buildings and (or) other real estate, reporting in cases provided for by the legislation on participation in shared construction of apartment buildings and (or) other real estate, as well as submission of reports containing false information, or submission of reports not in full -

4. Failure by a person whose activities are related to raising funds from citizens and legal entities for the construction (creation) of apartment buildings and (or) other real estate objects, within the prescribed period, to the body exercising control and supervision in the field of shared construction of apartment buildings and (or) ) other real estate objects, information and (or) documents that are necessary for the implementation of the specified control and supervision and the list of which is established by state authorities of the constituent entities of the Russian Federation, as well as the presentation of such information and (or) documents incompletely or inaccurate information -

shall entail the imposition of an administrative fine on officials in the amount of five thousand to fifteen thousand rubles; for legal entities - from fifty thousand to two hundred thousand rubles.

Note. If a person violates the requirements for attracting a citizen’s funds associated with the citizen’s emerging right of ownership of residential premises in an apartment building, which at the time of attracting such citizen’s funds has not been put into operation in the manner established by the legislation on urban planning activities, administrative liability established Part 1 of this article occurs in relation to each case of unlawful attraction of funds from a citizen separately.