“Cassation: Shareholders of Bankrupt Developer Have Right to Demand Inclusion in Register for Compensation” — Tatiana Tereshchenko for PRObankrotstvo
In cases of developer bankruptcy, shareholder claims can be satisfied not only through monetary compensation from the bankruptcy estate but also by transferring residential premises or unfinished construction projects to them.
Moldross LLC was declared bankrupt. Zhenishbek Alimbekov and Zeinep Azimbaeva filed an application to include a claim of 1 million rubles in the register, based on unfulfilled obligations under a shared construction participation agreement. The courts of first instance and appeal denied the claims, considering the developer's obligations fulfilled. Zeinep Azimbaeva appealed to the cassation court, arguing that the lower courts failed to consider her intention to include the claims in the register to obtain compensation from the Territorial Development Fund. The East Siberian District Arbitration Court overturned the lower courts' rulings and remanded the case for new consideration (Case No. A19-24031/2017).
According to Tatiana Tereshchenko, Attorney and Head of the Analytical Department at Prime Advice Law Offices, the key theme of the cassation ruling is the importance of ensuring equal protection for the rights and lawful interests of construction participants, as housing rights are constitutionally recognized and receive special state protection, while participation in housing construction represents a common form of exercising such rights.
The significance of the cassation court's position and its impact on practice lies in its interpretation of the shareholder's protected interest - the restoration of housing rights through protection of personal investments. This interpretation helps overcome formalism in claim assessment and avoids limiting the analysis to concluding that the shareholder has no grounds for claims because the developer fulfilled its obligations. The cassation court particularly emphasized that in such situations where the developer's bankruptcy is completed but its obligations remain unfulfilled despite property rights registration, it is crucial to determine what specific method of restoring shareholders' rights would be effective and feasible in each particular case.