Читать книгу Review of Court Practice in Cases on Protection of Consumer Rights in Russia 2023 - - Страница 9

D. and S. filed a lawsuit against the company (seller) for the protection of consumer rights, indicating that during the operation of the apartment that they purchased from the defendant under the purchase and sale agreement dated June 6, 2016, shortcomings in the construction work were identified. installation and finishing works.

In resolving the dispute and partially satisfying the claims, the court of first instance proceeded from the fact that during the five-year warranty period established by the Law on the Protection of Consumer Rights, defects were revealed in the apartment transferred to the plaintiffs, which were formed as a result of violations committed during construction work, then there arose before the transfer of the apartment to consumers.

Taking into account the foregoing, the court came to the conclusion to recover from the defendant in favor of the plaintiffs in equal shares the cost of eliminating the defects, determined by a forensic examination, as well as compensation for moral damages and a fine for failure to voluntarily meet consumer requirements.

The appellate court agreed with the conclusions of the first instance court, additionally pointing out that the choice of the person obligated at the consumer’s request in this case belongs to the consumer, and therefore recognized the complaint’s argument that the five-year warranty period applicable to construction work was not based on the law. should be used in relation to the apartment developer.

The Court of Cassation of General Jurisdiction left the court rulings in the case unchanged.

The Judicial Collegium for Civil Cases of the Supreme Court recognized the decisions of the courts of appeal and cassation as made in significant violation of the rules of law, canceled them and sent the case for a new appeal hearing.

According to paragraph 1 of Article 475 of the Civil Code of the Russian Federation, if the defects of the goods were not specified by the seller, the buyer to whom the goods of inadequate quality were transferred has the right, at his choice, to demand from the seller, among other things, reimbursement of his expenses for eliminating the defects of the goods.

If a warranty period or expiration date is not established for the goods, claims related to defects in the goods may be presented by the buyer, provided that the defects in the sold goods were discovered within a reasonable time, but within two years from the date of transfer of the goods to the buyer or within a longer period the period when such a period is established by law or the purchase and sale agreement (clause 2 of Article 477 of the Civil Code of the Russian Federation).

A similar rule is provided for in paragraph 1 of Article 19 of the Law on the Protection of Consumer Rights.

The court of first instance, assessing the nature of the controversial legal relations that arose between the parties, did not take into account the fact that legal relations had arisen between the parties arising from the real estate purchase and sale agreement dated June 6, 2016, in which the company (defendant) acts as the seller, and D. and S. – buyers. The developer of the building where the plaintiffs’ apartment is located is not the defendant, but another legal entity.

The relationship between the seller and the buyer is regulated by Chapter 30 of the Civil Code of the Russian Federation and Chapter 2 of the Law on the Protection of Consumer Rights.

Meanwhile, the court erroneously, when considering the dispute, was guided by paragraph 3 of Article 29 of the Law on the Protection of Consumer Rights, which is subject to application when protecting consumer rights when performing work (providing services), and came to the erroneous conclusion that claims related to defects in real estate, may be brought against the seller of real estate, who is not the developer, within five years after the conclusion of the purchase and sale agreement.

If the purchase and sale agreement for an apartment does not establish a warranty period for the apartment, and the law does not stipulate special periods during which the buyer could make a claim regarding the quality of the acquired real estate, then by virtue of paragraph 2 of Article 477 of the Civil Code of the Russian Federation and paragraph two of paragraph 1 of Article 19 of the Law on the protection of consumer rights, the period for submitting claims to the seller regarding defects in the apartment is two years from the date of its transfer to the buyers.

The courts have established that, under the purchase and sale agreement, the plaintiffs were given residential premises corresponding to the terms of the agreement dated June 6, 2016, the apartment was inspected by the buyers, the agreement has the force of an acceptance certificate, signed by the parties without claims to the property in the form in which it was at the time of certification of the contract.

According to the conclusion of the judicial construction and technical examination, the identified defects are obvious and could have been discovered by the plaintiffs when the apartment was transferred to them, but for two years the buyers did not contact the seller with any claims, which was not taken into account by the courts.

Determination of the Judicial Collegium for Civil Cases of the Supreme Court dated August 30, 2022 N 51-KG22-6-K8.