The state recognized the possibility of different compensation in Resettlement-Development projects

In this project, the owners of 35 of the 37 apartments signed an agreement with the developer, but two owners refused. One of them owned an apartment with an area of ​​105 square meters. m – significantly larger than many others in the complex, as well as a large share in the total property of the house. The judge ruled that in such circumstances, it is the same increase that does not take into account the difference in the size of the apartments that can create discrimination: the owner of a large apartment contributes more rights and common property to the project, and while receiving the same increase as a neighbor with a small apartment, he actually loses in a relative share. Such a provision, according to the court, can, in principle, serve as a legal basis for refusing a transaction.

The decision has created significant uncertainty in the industry. Developers were afraid that already signed contracts would begin to be revised, and compensation would have to be calculated individually for each apartment. To reduce this uncertainty, the general director of the state Office of Urban Renovation, Yuri Gamerman, and the government’s deputy legal adviser for civil cases, lawyer Karmit Yulis, prepared an explanatory document, which has not yet been finalized.

On the one hand, the state accepts the basic principle of the judicial decision: equality does not mean equal compensation. If the apartments differ significantly in size, ignoring this difference can make the deal uneconomical for a particular owner – and then his refusal will be considered “reasonable”, which means that the deal cannot be forced on him simply because most of the neighbors have already signed the agreement.

On the other hand, the document significantly limits the possibility of interpreting Judge Hes’s decision as a mandatory universal transition to proportional compensation. According to the state’s position, the mere fact that one apartment is larger than another does not oblige the developer to add additional meters to its owner.

According to the document, it is necessary to evaluate a set of characteristics that affect the cost of the apartment: area, location, assigned objects such as parking or storage room. In this case, there is no need to carry out a separate calculation for each of the tens or hundreds of apartments in the project. In suitable cases, apartments can be divided into groups with common characteristics, and only truly unique objects – penthouses, apartments with a garden, etc. – can be considered individually.

Grouping is not required in every project and should not be based on minor differences. In addition, compensation for the difference does not have to be expressed in additional meters: it can be provided by an apartment on a higher floor, improved finishing, a cash surcharge, or priority when choosing an apartment in a new building.

The document also debunks the market perception that the owner of an apartment in an urban renewal project is legally entitled to an increase of 12 square meters. m or any increase at all. The law only requires that the deal define the principles for calculating compensation, but does not dictate to the developer how many meters to add.

The starting point, according to the state’s position, is a new apartment of the same size as the original one, and any increase beyond this is part of the commercial agreement of the parties. Different compensations within the same project are acceptable: the law itself provides for the obligation to notify owners when one of them receives significantly different compensation, which means that the legislator initially recognized this possibility. The key requirement here is transparency with all apartment owners.

In addition, the state is closing another loophole that arose after the court decision: owners who have already agreed to the terms and signed the contract do not have the right to return to the negotiating table simply because they now believe they could have gotten more.

The protection that the law gives to the owner of a unique apartment is relevant mainly before signing – when discussing whether it is reasonable for him to refuse the deal. Once signed, contract law continues to bind the parties.

It should be emphasized that the Gamerman-Julis document still needs to be approved.