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05/12/2025
Friday
THIS DAY IN HISTORY:
5 December 
1936 The Stalinist Constitution of the USSR was adopted.
1936 the Stalinist constitution of the USSR was adopted.
1484 Pope Innocent VII initiated the "witch hunt".
1456 An earthquake that destroyed Naples occurred - 35 thousand people died.
1456 occurred an earthquake that destroyed Naples - 35 thousand people died.
5 December
1936 The Stalinist Constitution of the USSR was adopted.
1936 the Stalinist constitution of the USSR was adopted.
1484 Pope Innocent VII initiated the "witch hunt".
1456 An earthquake that destroyed Naples occurred - 35 thousand people died.
1456 occurred an earthquake that destroyed Naples - 35 thousand people died.
THE RIGHTS OF SHAREHOLDERS AND THE CHANGE OF DEVELOPER: FEATURES OF RECOGNITION OF OWNERSHIP RIGHTS
The participants in the shared-equity construction appealed to the developer with a demand for recognition of ownership of the apartment under the contract of participation in shared-equity construction, as well as for inclusion in the register of creditors' claims of claims for payment of penalties and for offsetting financial claims (case no. A32-5192/17).
The courts of two instances refused to satisfy the application, based on the fact that, since the rights and obligations of the developer in relation to the disputed real estate object were transferred to the company to a specialized developer, the claim in question was brought against an improper defendant. In addition, the courts concluded that the applicants had no financial ability to make payments under the shared-equity construction agreement, taking into account previously concluded contracts.
The cassation sent the dispute for reconsideration, noting that, coming to the conclusion that the parties had renegotiated one contract for another and transferred funds from one contract to another to pay for it, the courts did not take into account the existence of another contract on shared participation in construction, concluded by the debtor and the participant in shared construction, which subsequently became the subject of another equity participation agreements.
The arguments given by the participant in the shared-equity construction are consistent with her testimony set out in the aforementioned judicial act in another case. Thus, in the framework of the criminal case, a participant in the shared-equity construction testified that she had concluded one contract with the debtor, for which she deposited a certain amount into the debtor's cash register according to a cash receipt. These indications are confirmed by the excavation protocol.
In turn, the conclusions reached by the courts on the termination of another equity participation agreement and the transfer of funds to pay for the disputed agreement are inconsistent with the agreement on the termination of this equity participation agreement concluded by the company, a specialized developer and a participant in shared construction. The arguments given by the participants in the shared-equity construction have not been properly verified and evaluated by the courts.
As follows from the case file, in order to confirm the payment under the disputed contract, the participants in the shared construction submitted copies of the receipt for the receipt cash order for a certain amount with the purpose of payment to the case file.: "Shared participation in the construction" and a cash receipt for the specified amount, the originals of which were submitted by the participants of the shared construction for review by the court. These proofs, as well as those presented by the participants in the shared-equity construction to confirm payment under previously concluded equity participation agreements by the persons involved in the case, have not been refuted, and no falsification of evidence has been reported.
At the same time, it should be noted that a judicial act in another case established that the debtor's accountant, after issuing receipts to participants in shared-equity construction, changed the data of cash receipts, reducing the amount of funds deposited, that is, the judicial act that entered into force confirmed the distortion of the debtor's documentation by persons controlling the debtor.
The conclusion of the courts about the lack of financial ability of the participants to make payments under the contract of participation in shared construction contradicts the actual circumstances of the dispute, since, according to bank account statements, cash withdrawal operations took place during the period when the participants purchased the apartment. At the same time, the presence of savings from participants in previous periods, including after the conclusion of other equity participation agreements, was not investigated by the courts.
The District Court also considers it necessary to note that the decision of the district court in another case, in which the court concluded that the participants intended to terminate other equity agreements and conclude a new equity agreement, cannot be considered prejudicial to this separate dispute, since it does not follow from the judicial act that the court of general jurisdiction investigated the relationship between the developer and the participants related to the conclusion and execution of another equity agreement, and gave them any legal qualifications. In this case, the courts of first instance and the courts of appeal, denying the participants satisfaction of the stated claims, did not apply an appropriate legal mechanism to protect their violated rights; the circumstances necessary for this were not established.
Photo: Freepik
The courts of two instances refused to satisfy the application, based on the fact that, since the rights and obligations of the developer in relation to the disputed real estate object were transferred to the company to a specialized developer, the claim in question was brought against an improper defendant. In addition, the courts concluded that the applicants had no financial ability to make payments under the shared-equity construction agreement, taking into account previously concluded contracts.
The cassation sent the dispute for reconsideration, noting that, coming to the conclusion that the parties had renegotiated one contract for another and transferred funds from one contract to another to pay for it, the courts did not take into account the existence of another contract on shared participation in construction, concluded by the debtor and the participant in shared construction, which subsequently became the subject of another equity participation agreements.
The arguments given by the participant in the shared-equity construction are consistent with her testimony set out in the aforementioned judicial act in another case. Thus, in the framework of the criminal case, a participant in the shared-equity construction testified that she had concluded one contract with the debtor, for which she deposited a certain amount into the debtor's cash register according to a cash receipt. These indications are confirmed by the excavation protocol.
In turn, the conclusions reached by the courts on the termination of another equity participation agreement and the transfer of funds to pay for the disputed agreement are inconsistent with the agreement on the termination of this equity participation agreement concluded by the company, a specialized developer and a participant in shared construction. The arguments given by the participants in the shared-equity construction have not been properly verified and evaluated by the courts.
As follows from the case file, in order to confirm the payment under the disputed contract, the participants in the shared construction submitted copies of the receipt for the receipt cash order for a certain amount with the purpose of payment to the case file.: "Shared participation in the construction" and a cash receipt for the specified amount, the originals of which were submitted by the participants of the shared construction for review by the court. These proofs, as well as those presented by the participants in the shared-equity construction to confirm payment under previously concluded equity participation agreements by the persons involved in the case, have not been refuted, and no falsification of evidence has been reported.
At the same time, it should be noted that a judicial act in another case established that the debtor's accountant, after issuing receipts to participants in shared-equity construction, changed the data of cash receipts, reducing the amount of funds deposited, that is, the judicial act that entered into force confirmed the distortion of the debtor's documentation by persons controlling the debtor.
The conclusion of the courts about the lack of financial ability of the participants to make payments under the contract of participation in shared construction contradicts the actual circumstances of the dispute, since, according to bank account statements, cash withdrawal operations took place during the period when the participants purchased the apartment. At the same time, the presence of savings from participants in previous periods, including after the conclusion of other equity participation agreements, was not investigated by the courts.
The District Court also considers it necessary to note that the decision of the district court in another case, in which the court concluded that the participants intended to terminate other equity agreements and conclude a new equity agreement, cannot be considered prejudicial to this separate dispute, since it does not follow from the judicial act that the court of general jurisdiction investigated the relationship between the developer and the participants related to the conclusion and execution of another equity agreement, and gave them any legal qualifications. In this case, the courts of first instance and the courts of appeal, denying the participants satisfaction of the stated claims, did not apply an appropriate legal mechanism to protect their violated rights; the circumstances necessary for this were not established.
Photo: Freepik
29.09.2025
