Compensation for unfinished construction – Business – Kommersant

The Supreme Court of the Russian Federation (SC) recognized that the Territorial Development Fund, which receives land and unfinished objects of a bankrupt developer, is obliged to compensate for all current expenses, including expenses for persons attracted by the arbitration manager (AU). Previously, the fund agreed only to payments related to the first stage, and the managers could not recover all their costs. The decision of the Supreme Court develops the July position of the Constitutional Court of the Russian Federation (CC), and also removes restrictions on the amount of payments. This is a major boost for AHs, as property developer bankruptcy often requires costly action.

On October 7, the Supreme Court published a decision on the dispute on reimbursement of expenses in the bankruptcy of the developer RPK-Realt LLC. The Fund for the Protection of the Rights of Citizens Participating in Shared Construction (now the Fund for the Development of Territories) decided to take away from the debtor a land plot with unfinished facilities. To do this, according to the law, the fund must repay current payments and debt to creditors of the first and second stages of the registry. Concerning current payments at fund with AC and there was a dispute.

The Arbitration Court of the Moscow Region in August 2021 allowed the fund to receive the property of the LLC, subject to payment of 10.13 million rubles. The court referred to Art. 201.10 and 201.15 of the Bankruptcy Law and pointed out the need to compensate for the current expenses of the AC (including the third-fifth stages) related to the transferred property of the debtor and the bankruptcy procedure. But the appeal in November 2021 reduced the amount to 5.2 million rubles, considering that it was necessary to repay “exclusively current payments of the first priority” (AC remuneration and court costs), and debt compensation for other amounts (including payment for the services of persons attracted by the AC for implementation of the transfer of the debtor’s objects) “not provided”.

The manager, Ilya Anurov, appealed this decision to the Supreme Court, believing that the fund should compensate all the debtor’s expenses related to current payments. On August 23, the case was transferred to the Economic Collegium of the Armed Forces.

The Board noted that in July the Constitutional Court in the case of Anna Shalimova recognized the norms of Art. 201.10 and 201.15 of the law in the sense that they do not allow the repayment of debts that are not related to the first stage of current payments, and reimbursement of expenses for the completion of bankruptcy proceedings at the expense of the fund.

According to the position of the Constitutional Court, if the fund did not want to acquire the developer’s land, then this land could be used to pay current payments, “however, when it passes to the acquirer, this opportunity is lost.”

In the meantime, current payment creditors contribute to the “safety of the facility”, “the proper implementation of bankruptcy procedures”, and ultimately contribute to the “successful completion of construction”. Therefore, it would be fair to take into account their interests, “recognizing the obligation of the fund as the acquirer, in case of insufficiency of the bankruptcy estate of the developer, to repay the claims of all current creditors,” the Supreme Court emphasized.

Valeria Gerasimenko, General Director of the Union of Autonomous Organization SRO “Northern Capital” notes that the bankruptcy of developers requires significant costs. Thus, the law requires the AU to carry out the conservation of construction if necessary, and this is always an “expensive event”, and “the facility must be guarded, which also requires money,” Sergey Domnin explains. But with the subsequent compensation of these expenses to the AU at the expense of the fund, a “big problem” arises, “because they are not directly fixed as the first stage of current payments, and the fund refused to reimburse them,” explains Ms. Gerasimenko.

Now the managers will receive “significant support” in the issue of reimbursement of expenses, says Sergey Domnin, “especially in view of the explanation of the Supreme Court about the non-applicability of limits on the amount to current payments.” Elena Mende, lawyer of the Baltic Bar Association named after Anatoly Sobchak, believes that the decision of the Supreme Court “brought the necessary clarity regarding the volume of claims to be satisfied at the expense of the fund.” “Given that both the Constitutional Court and the Supreme Court have now spoken in favor of repaying debts to all current creditors, this should significantly reduce or completely eliminate such disputes,” she adds.

Oleg Ganyushin, head of corporate law and bankruptcy practice at Versus.legal, clarifies that in any case, a court decision will be required for payments from the fund, but the position of the Supreme Court “significantly improves the position of bankrupt counterparties” who receive “confidence in paying for their services, which they were previously deprived of “.

Ekaterina Volkova, Anna Zanina