home  /  Advice  /  Alienation of a share: voluntary, according to the court, sale of a part. How to protect yourself from alienation? Alienation of a share in the right of common share ownership Agreement for the alienation of a share in a common share

Alienation of a share: voluntary, according to the court, sale of a part. How to protect yourself from alienation? Alienation of a share in the right of common share ownership Agreement for the alienation of a share in a common share

Advice
12.06.2020

Despite the desire of citizens to acquire real estate, which can be owned solely, the percentage of apartments in shared ownership has been and remains high. According to some reports, up to 80% of housing has two or more owners. At the same time, real estate market experts note that it is transactions with shares that are associated with the greatest difficulties. In more detail about what a share in an apartment is and what are the nuances with its design, alienation and sale, you will learn today from our post.

It would seem that the procedures for dealing with this type of real estate are not much different from the disposal of apartments or houses. However, in matters of shared ownership, the human factor is very important. And in cases where the reason for the transfer of ownership is the inability of the co-owners to agree among themselves, there is every reason to believe that the further legal history of such an object will not be smooth until all the shares are in the same hands.

Any property owned by two or more citizens is shared. Moreover, when it comes to the property of the spouses, such property is joint for the entire period of ownership. If the appearance of several owners is associated with other circumstances, such ownership is shared, and the volume of each share is documented and registered in Rosreestr without fail.

Where do the shares in the apartment come from? There are usually three sources:

  • privatization;
  • inheritance;
  • donation.

During privatization, the apartment is registered for everyone who was registered in it at the time of the beginning of the procedure and did not give up their right to take over the property. Upon acceptance of the inheritance, as many shares arise as the heirs enter into their rights. When transferring a share as a gift, the former owner can allocate such a share as he deems necessary.

In addition, shares in appear when the common joint property of the former spouses is divided or for other reasons in which the basis of the property right is a court decision.

How to determine the share in the apartment

The order of using an apartment can be determined in various ways. As a rule, if the shares in the apartment belong to the family living in it, there are no questions about the use of the space. If there is a need for a partition, the tenants agree with each other or, if it is impossible to come to an agreement, they go to court with a claim to determine the procedure for using the housing.

Important! Owning a share in an apartment is not tantamount to owning a room and does not imply the mandatory possibility of using a proportional part of square meters.

It should be understood that only the area of ​​living rooms is subject to division and only if the share is not insignificant in relation to the living area of ​​the apartment. For example, if a two-room apartment is owned by 2 owners with equal share rights, the order of use can be determined so that everyone gets a room. However, if the areas of the rooms are not equal, the “fair” section will not work, in any case, one will get a large room, and the other a smaller one. If, for example, a one-room apartment belongs to two owners, then it is no longer possible to determine the procedure for using it in court.

The same applies to any other situations when housing is not divided "by room" or the proportional footage of the property is too small and excludes the possibility of using the property as housing. Therefore, if it is impossible to determine the order of use, the owner of the "micro-share" has the right to receive compensation from the co-owners in exchange for the right of ownership.

How to register a share in an apartment in ownership

First of all, for registration of ownership, a basis of law is required. This can be a purchase and sale agreement, a certificate of the right to inheritance, a donation, exchange, rent, or a court decision. If there is a reason, a share in an apartment is formalized in the same way as any other real estate: a package of documents is collected and submitted for registration in the Federal Register - to the regional chamber directly or through the MFC. However, there is a significant difference with the owners of "whole" real estate: a number of actions that the owners can perform only with the consent of the co-owners. These activities include renting out, pledging and selling.

Important! The owners of the shares in the apartment have the preemptive right to purchase other shares. Therefore, the sale of such property is possible only if the co-owners refuse to purchase it. The offer, as well as the notarial waiver preemptive right purchases must be notarized.

The package of documents for registration depends on the basis for the transfer of rights and is determined exactly depending on the situation. An approximate list of documents is as follows:

  • legal basis documents;
  • passports of the participants in the transaction;
  • extract from the USRN;
  • extract from the house book;
  • a copy of a financial personal account and a certificate of absence of debts;
  • notarial statements about the absence of other legal claimants (appropriate in each situation);
  • waivers of other owners from the preemptive right to purchase;
  • power of attorney for registration (if the parties to the transaction submit documents to the registration chamber not in person, but through proxies).

In addition, for the state service for registering the transfer of ownership, it is necessary to pay a state duty, which is 2 thousand rubles.

As with the registration of any other real estate, most of the steps for registration of property can be performed independently, or can be entrusted to specialists. Of course, it is more expensive, but in addition to saving time, it also guarantees the absence of errors, which is very important in this matter. Real estate agencies and legal companies specializing in these services.

Important! Starting from 2016, in all cases when the basis for taking possession of a share in an apartment is a purchase and sale agreement, the transaction is possible only in notarial form.

The share of a minor child in the apartment

Every year more and more apartments are owned by minors. In some cases, children become owners during privatization. In others, parents give their children a share of ownership. But most of the shares of minors today are drawn up when selling certificates for maternal capital... Thus, the property rights of minors are protected. However, in a situation where a family, for example, decides to sell an apartment and purchase more spacious housing or even move to another region, the registration procedure will be somewhat more complicated than when selling real estate to adult owners, whose rights are protected by the state through the guardianship authorities.

Important! Any alienation of the property of minors is possible only with the appropriate order of the guardianship and guardianship authorities.

An essential point is the conditions under which the guardianship authorities agree to the sale of the property of minors. This may be a requirement for the simultaneous or subsequent vesting of a minor citizen with property of a similar or higher value, which ensures the improvement of the child's living conditions. Moreover, if earlier it was allowed to endow a minor with any property that meets the requirements, then from 2016 it is necessary that it be acquired instead of the alienated one.

It is also important to consider the age of minors. Until the age of 14, all decisions on behalf of minors are made by their parents or guardians. From the moment of receiving the passport, the child has the right to dispose of his property on his own, however, until he reaches the age of majority, all such actions are carried out with the consent of the parents or guardians. Thus, when carrying out, for example, a transaction for the purchase and sale or donation of property of a child under 14 years of age, his name acts on his behalf. legal representative; upon reaching the age of 14 and after receiving a passport, the child disposes of his property himself, but with the consent and in the presence of the parent (guardian).

Pledge of a share in an apartment

By Russian legislation a share in an apartment can be pledged only with the consent of the co-owners. The procedure for obtaining such consent is similar to obtaining a waiver of the preemptive right to purchase: all co-owners must formalize their absence of objections to the pledge in a notarized form. Often, obtaining such documents is problematic: apartment neighbors understand that a pledge can lead to alienation and the appearance of a new owner for the share, which often does not suit them. The absence of such consent does not prevent the receipt of loans secured in those financial institutions, whose loan interest is quite high.

Nevertheless, the law provides for the possibility of registration of shares as a pledge. The property, which is the subject of a pledge, is registered as an encumbrance in favor of a natural or legal person for which the mortgage is registered. The encumbrance, as well as its subsequent withdrawal, is registered in Rosreestr.

Alienation of a share in an apartment

There are several ways to alienate shares in an apartment: sale, donation, inheritance, rent, court decision, etc. Since the most vulnerable from the point of view of legal and financial interests are the parties to alienation through purchase and sale, we will consider them in detail.

Obviously, the parties to such a transaction are the seller and the buyer. But, in addition to the interests of the parties, which must be observed when conducting similar transactions for the purchase and sale of an apartment, there are also pitfalls in the situation with shares:

  1. Who are the sellers?
    These can be, for example, ex-spouses who are not interested in having joint property. If one of them wants to sell, and the other cannot buy, but does not want to sell his part of the property, it can be sold to a third-party buyer. There are also frequent cases of sale of hereditary shares in similar situations - some heirs want to sell, others do not. In these seemingly mundane everyday situations, there is one risk that potential buyers need to consider. If real estate is purchased “for living”, then, when the financial situation improves, it will be problematic to sell it in order to buy a separate house - shares are the most illiquid commodity on the real estate market. And if the buyer plans to use the property for its intended purpose, that is, for living, it makes sense to consider for the purchase not a share, but a room.
    However, there is also special category sellers, unfortunately, are not that rare. It includes the owners of shares whose co-owners are the so-called "raiders". The stories are similar in all cases - a former family member sold his property to representatives of criminals who, using pressure, force the remaining owners to sell them their shares for a pittance. After that, the whole apartment is put up for sale at the market price or it is profitably sold to the already existing buyer "for it". Therefore, when considering options for possible purchases, it is worth paying special attention to who are the sellers, who are co-owners and what is the reason for the sale.
  2. Who are the buyers?
    It is no secret that many buyers of shares do not buy them for living. In some cases, as in the example above, housing is purchased in parts, at a price significantly lower than the market price. In others, purchases are made for the sake of trade, registration of registrations at the place of residence, the creation of so-called "rubber apartments". In rare cases, citizens buy shares for their own use. However, it is important to understand that the law considers residential real estate as objects that must be used for the residence of citizens and cannot be used in any other way. Therefore, if a share is acquired for the sake of registration, but the corresponding number of meters or the number of rooms does not allow for the possibility of using the property as housing, according to the court such a share may be recognized as insignificant and alienated in favor of the owners of a larger share with the obligation to pay compensation to the owner of the alienated property.

Considering other methods of alienation, it is necessary to understand that the entry into property can only be voluntary and, if the potential owner considers receiving this property unprofitable, he has the right to refuse it even if accepted as a gift.

Exchange of shares in apartments

There are many options for the transfer of rights by concluding an exchange agreement. This may be appropriate, for example, if the marital status of one of the owners changes, and the exchange of rights and material benefits between co-owners turns out to be mutually beneficial. There are also options for exchanging a share in an apartment for a separate dwelling or for a share in another apartment by means of an exchange agreement. Moreover, if the property being exchanged differs significantly in terms of meters and cost, the law obliges the acquirer of a larger share to pay compensation to the other party. This can be avoided if the exchange is carried out using two donation procedures, but it is important to remember that the donation is a gratuitous transaction, and evidence to the contrary may lead to its recognition as sham and termination.

Pre-emptive right to purchase a share

As mentioned above, the sale of a share refers to those transactions with real estate that the owner is not entitled to perform alone, without the consent of the co-owners. According to the requirements of Article 250 of the Civil Code of the Russian Federation, the future seller of the share is, first of all, obliged to offer it to all co-owners, and at a lower price than for a “third-party” buyer. And only if none of the owners agrees, the seller can make similar offers to third parties.

How can you get the consent of the owners for the sale? There are two options, but both provide for the receipt of the corresponding notarial document - waiver of the pre-emptive right to purchase.

  1. The owner draws up a refusal to purchase on his own from a notary.
  2. The seller draws up at a notary and sends the co-owner a certified letter with an offer to buy a share at a specified price. If the co-owner does not agree to the purchase within 30 days, the seller has the right to make similar offers to third parties.

It should be borne in mind: the sale of a share in comparison with the sale of an apartment is always unprofitable.

Important! The market price for shares never corresponds to the same part of the cost of entire apartments - as a rule, it is half as much.

Many owners of shares think that if an apartment costs, for example, 4 million rubles, then ½ share will cost 2 million. In reality, it is impossible to sell a stake at that price. Usually, the real selling price of individual shares is about half their sum as the price of an entire apartment. Therefore, each seller of such real estate needs to understand that the only way to achieve this is to negotiate with co-owners and sell the entire apartment.

Apartment share tax

Tax rates are calculated depending on the provisions in the regulatory legal acts the respective municipalities and taking into account the benefits and subsidies of owners. At the moment, decreasing coefficients remain in force, allowing the amount of taxes to be increased smoothly, by 20% per year.

As for the tax on the sale of real estate, since 2016 it has been calculated at 13% of the value of the object over 1 million rubles and is paid if the seller has owned his property for less than 5 (in some cases, less than 3) years. This applies to shares as well as to any other residential property.

Whatever the history of the emergence of the right to a share in an apartment and further plans to dispose of it, it is necessary to carefully study all the pitfalls at the disposal of this type of real estate and do not forget that transactions with shares are related to real estate transactions of increased complexity.

More on and, you will learn from the following posts.

The issue of shares is rather complicated, so if you need help in registration, donation, alienation of shares, etc., then please sign up for a free consultation with a lawyer at special form on our website.

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Notarization of transactions is required:

  1. in cases specified in the law;
  2. in cases stipulated by the agreement of the parties, at least by law this form was not required for transactions of this type.

Thus, the parties themselves have the right to decide to notarize the transaction, providing in the agreement a condition on compulsory notarization, although it was not required by law. In practice, this happens most often when making transactions that are of particular importance to the parties (or one of the parties). A notary has no right to refuse to certify any transaction that complies with the law.

As for the cases of obligatory notarization of transactions specified in the law, we recall that the consequence of non-compliance with the notarial form will be the nullity of the transaction, that is, the absence legal implications her conclusions.

We recommend: "Samples of powers of attorney from a legal entity and an individual. Types, form, terms of power of attorney"

So, by law obligatory notarization was established for the following types of transactions:

Power of attorney issued by way of transfer must be notarized (clause 3 of article 187 of the Civil Code of the Russian Federation). The rule on notarization of a power of attorney issued by way of transfer does not apply to powers of attorney issued by way of transfer by legal entities, heads of branches and representative offices legal entities.

Pledge agreement must be concluded in a simple written form, unless a notarial form is established by law or by agreement of the parties (clause 3 of article 339 of the Civil Code of the Russian Federation). The notarized form of the pledge agreement is provided for in paragraph 2 of Art. 22 of Law No. 14-ФЗ "On Limited Liability Companies", which states that "an agreement on pledge of a share or part of a share in authorized capital society is subject to notarization ".

Pledge agreement to ensure the fulfillment of obligations under the contract, which must be notarized, is subject to notarization (paragraph 2, clause 3, article 339 of the Civil Code of the Russian Federation).

Debt transfer... The rules contained in Article 389 of the Civil Code of the Russian Federation (clause 4 of Article 391 of the Civil Code of the Russian Federation) are respectively applied to the form of transfer of debt.

Annuity agreement is subject to notarization, and an agreement providing for the alienation of immovable property against payment of rent is also subject to state registration(Article 584 of the Civil Code of the Russian Federation).

Spouse's consent... To conclude a transaction by one of the spouses for the disposal of property, the rights to which are subject to state registration, a transaction for which a mandatory notarial form is established by law, or a transaction subject to compulsory state registration, it is necessary to obtain a notarized consent of the other spouse (clause 3 of article 35 of the SK RF).

Alimony Payment Agreement is in writing and is subject to notarization (clause 1 of article 100 of the RF IC).

Transactions on the alienation of shares in the right of common ownership of real estate, including when all participants in shared ownership of their shares are alienated in one transaction, they are subject to notarization, with the exception of transactions related to property that constitutes a mutual investment fund or acquired for inclusion in a mutual investment fund, transactions for the alienation of land shares, transactions for alienation and acquisition of shares in the right of common ownership of real estate when concluding an agreement providing for the transfer of ownership of residential premises in accordance with the Law Russian Federation dated April 15, 1993 N 4802-1 "On the status of the capital of the Russian Federation" (except for the case, foreseen in part nineteenth Article 7.3 of the said Law) (Article 42 of Law No. 218-FZ

Transactions related to the disposal of immovable property under the terms of guardianship, as well as transactions for the alienation of real estate owned minor citizen or a citizen recognized as having limited legal capacity, are subject to notarization (clause 2 of article 54 of the law N 218-FZ "On state registration of real estate" (as amended on 01.07.2017).

A transaction aimed at alienating a share or part of a share in the authorized capital of a company, is subject to notarization by drawing up one document signed by the parties (clause 11 of article 21 of the law N 14-FZ "On limited liability companies").

Investment partnership agreement, which includes the policy of conducting general affairs (investment declaration), all changes made to it (with the exception of established by part 2 Article 17 of this Federal Law case), additional agreements and annexes to it, agreements on the full or partial transfer by partners of their rights and obligations under an investment partnership agreement, preliminary agreements on this are subject to notarization at the location of the authorized managing partner (clause 1 of article 8 of law N 335-FZ "On investment partnership ").

Partnership Management Agreement and any changes made to it are subject to mandatory notarization and storage with a notary at the location of the partnership and come into force for the parties to the partnership management agreement and third parties from the moment of such certification. The partnership management agreement and any changes made to it are not subject to state registration, and information about it and the provisions contained therein is not entered into the unified state register of legal entities (clause 2 of article 6 of Law No. 380-FZ "On Economic Partnerships" ).

A transaction aimed at alienating a share in the contributed capital of the partnership, including providing for the obligation to conclude a transaction aimed at alienating a share in the pooled capital of a partnership in the event of certain circumstances or the fulfillment of a counter obligation by the other party, must be made in notarial form (clause 3 of article 12 of Law No. 380-FZ "On Economic Partnerships ").

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NOTARY CERTIFICATE OF TRANSACTIONS MANDATORY

What transactions must be notarized

Obligatory notarial form of the contract(notarization of transactions) required:

  • for all transactions with immovable property, where the property belongs to the seller (donor) on the basis of common (shared or joint) ownership, with the exception of transactions related to property that constitutes a mutual investment fund or acquired for inclusion in a unit investment fund, transactions for the alienation of land shares
    NOTE: From July 31, 2019, transactions on the alienation of shares by ALL participants in common property under one agreement are NOT subject to mandatory notary! More details here >>
  • for all transactions related to the disposal of immovable property under the terms of guardianship;
  • for all transactions for the sale of real estate owned by a minor citizen or a citizen recognized as having limited legal capacity.

Grounds for notarizing a transaction

From 01.01.2016 to 01.01.2017 Article 30 of the Federal Law of 21.07.1997 N 122-FZ "On state registration of rights to real estate and transactions with it" in terms of transactions related to the disposal of real estate under the terms of trust or guardianship, and also transactions for the sale of immovable property belonging to a minor citizen or a citizen recognized as having limited legal capacity.

From 06/02/2016 to 01/01/2017, article 2 of Federal Law 172-FZ of 06/02/2016 in terms of transactions on the alienation of shares in the right of common ownership of real estate, including when all shares are alienated for one transaction (one agreement), are subject to compulsory notarization.

From 01.01.2017: Article 54 of the Federal Law of 13.07.2015 N 218-FZ"On state registration of real estate" in terms of transactions related to the disposal of immovable property on terms of guardianship, as well as transactions for the alienation of immovable property belonging to a minor citizen or a citizen recognized as having limited legal capacity and article 42 of the same law in the part of transactions on the alienation of shares in the right of common ownership of real estate, including when all participants in shared ownership of their shares are alienated in one transaction.

From 31.07.2019: Federal Law 76-FZ of 01 May 2019 amends Article 54 of the Federal Law of 13.07.2015 N 218-FZ"On state registration of real estate", which allow for the alienation of shares in the right of common ownership in a simple written form, provided that the transaction is made by ALL participants under one agreement.

More about some deals,

which are subject to mandatory notarization

  • Gift or sale of a share to a co-owner

to whom donated) will pay a tax of 13% (or 30% for non-residents) on the market (cadastral) value of the donated share.

  • Giving a share to an outsider

In this case, the consent of the co-owners is not required, but the notary will check if a deal is fake For example, a donation of a micro share can be rejected by a notary as a sham transaction in order to avoid the need to receive refusals from the co-owners of the right of priority purchase of the alienated share.

  • Purchase and sale of a share to an outsider (not a co-owner)

Alienation in this case is made on condition that all co-owners have given a refusal to purchase the alienated share in notarial form. Refusals should be from all co-owners according to the extract of the USRN (and only on the basis of an extract!). An urgent statement for 200 rubles is possible

If the co-owners do not want to go to a notary and write refusals, then you can send them a notice in writing (notices are issued either by a notary, or in a simple form by sending a registered letter with a receipt acknowledgment) of the intention to sell their share indicating the price and other terms of sale.

It will be impossible to sell for cheaper than you indicated in the notice. If none of the co-owners responded to your offer to buy an alienated share from you (if you sent notices in simple writing, you will receive all the stubs about the delivery of your letters to the addressees personally) within a month, then you can safely go to a notary and draw up a document confirming that that the co-owners did not exercise their priority purchase right.

Letters are sent to the registration address of the co-owners or to the address of their actual residence.

  • Donation or sale of all immovable property, if the property belongs to sellers on the basis of common ownership (common share, common joint)

It does not matter whether the property belongs to members of one family or to outsiders, the transaction, if the property belongs to two or more co-owners, is subject to mandatory notarization.

For example, if the property belongs to the parents, then the donation of the share to the child is subject to compulsory notary. Or donation of a share from one spouse to another, parents, brothers, sisters - all these transactions are subject to obligatory notary.

In the case of a gift, the donee (i.e. the one who to whom donated) will pay a tax of 13% (or 30% for non-residents) on the cadastral value of the property, excluding donations to immediate family members.

If the alienation is carried out under a sale and purchase agreement, the relationship with the tax service arises with the seller, and not with the buyer (About the taxation procedure from 01.01.2016 it is possible)

This article is purely informational and cannot be used as evidence in court. The wording in this article is deliberately simplified, which, perhaps, entails a distortion of meaning when analyzing the nuances in special cases. In difficult or atypical situations, it is necessary to be guided only by the legislation of the Russian Federation, if necessary, consult a lawyer with a description of a particular situation.

In connection with the changes in 2015-2016 on the compulsory certification of transactions for the alienation of shares, many began to ask the question "is it possible to do without notary certification of transactions of sale and purchase and donation of shares in real estate?" Let's figure it out!

What laws established the notarization of transactions

The changes relate to Articles 24, 24.1 and 30 of the Federal Law of 21.07.1997 No. 122-FZ "On state registration of rights to real estate and transactions with it." Also, from 01.01.2017, the Federal Law of 13.07.2015 No. 218-FZ "On State Registration of Real Estate" was enacted, which is in force today.

Alienation of shares in real estate (except for land plots)

A). Share sale in common ownership to an outsider is subject to notarization and can be done no earlier than after a month from the date the seller notifies the share of the remaining participants in shared ownership (Federal Law of December 29, 2015 No. 391-FZ). Period of validity of the law:12/29/2015 -02.06.2016

B). Share alienation transactions in the right of common ownership of real estate, including when all participants in shared ownership of their shares are alienated in one transaction, are subject to notarization. (Federal Law dated 02.06.2016 No. 172-FZ). Period of validity of the law: 02.06.2016 - 01.01.2017

V). Share alienation transactions in the right of common ownership of real estate, including when all participants in shared ownership of their shares are alienated in one transaction, are subject to notarization, with the exception of transactions related to property that constitutes a mutual investment fund or acquired for inclusion in a mutual investment fund, transactions on the alienation of land shares (clause 1 of article 42 of the Federal Law of 13.07.2015 No. 218-FZ).

CONCLUSIONS:

  • If share purchase agreement(apartments, houses, rooms) to an outsider concluded after 12.2015 - you need to notarize. The share donation agreement does not need to be certified. There is no need to sell a stake to another co-owner. The sale of all shares at the same time for one transaction - no need to certify.
  • If contract of sale, donation or exchange of shares(apartments, houses, rooms) any person concluded after 06.2016 - you need to notarize. The sale of all shares at the same time for one transaction - you need to certify.

Land share transactions

A). Land share sale transaction subject to notarization (Federal Law dated December 29, 2015 No. 391-FZ). Period of validity of the law: December 29, 2015 - July 4, 2016

B). No notary required for transactions on the alienation of land shares (Federal Law of 03.07.2016 N 351-FZ). Period of validity of the law:04.07.2016 - 01.01.2017

V). Transactions on the alienation of shares in the right of common ownership of real estate, including when all participants in shared ownership of their shares are alienated in one transaction, are subject to notarization, with the exception of transactions related to property constituting a mutual investment fund or acquired for inclusion in a mutual investment fund, transactions for the alienation of land shares(Clause 1 of Article 42 of the Federal Law dated July 13, 2015 No. 218-FZ). The beginning of the law - 01.01.2017 is in force at the present time.

CONCLUSIONS:

  • If land share purchase agreement concluded during the period 12.2015 -04.07.2016you need to notarize. The land share donation agreement does not need to be certified. The sale of all shares at the same time for one transaction - no need to certify.
  • Currently transactions with land shares do not need to be notarized.

Real estate transactions of a minor

A). Transactions related to the disposal of real estate under the terms of trust or guardianship, as well as transactions for the sale of immovable property belonging to a minor citizen or a citizen recognized as having limited legal capacity, are subject to notarization (Federal Law of December 29, 2015 No. 391-FZ). Period of validity of the law: December 29, 2015 - June 2, 2016

B). Transactions related to the disposal of immovable property under the terms of guardianship, as well as transactions for the alienation of immovable property belonging to a minor citizen or a citizen recognized as having limited legal capacity, are subject to notarization (Federal Law of 06/02/2016 N 172-FZ). Period of validity of the law:02.06.2016 - 01.01.2017

V). Transactions related to the disposal of immovable property under the terms of guardianship, as well as transactions for the alienation of immovable property owned by a minor a citizen or a citizen recognized as having limited legal capacity are subject to notarization (clause 2 of article 54 of the Federal Law of 13.07.2015 No. 218-FZ). The beginning of the law - 01.01.2017 is in force at the present time.

CONCLUSIONS:

  • If minor's real estate sale contract concluded during the period 12/29/2015 - 06/02/2016- you need to notarize.
  • Currently any deal for the disposal of real estate minor subject to notarization.

Is it possible to do without a notary if the transaction is concluded before 29.12.2015 or before06/02/2016?

Many people ask: will Rosreestr register a purchase and sale agreement or a donation agreement for a share of real estate without notarization, if the transaction was concluded before the date when notarization was introduced?

For example, the contract for the sale or donation of a ½ share in an apartment is dated "May 2, 2016", but the contract has not been handed over to register ownership of the Rosreestr since then.

Let's turn to the law.

According to Art. 4 of the Civil Code of the Russian Federation civil law are not retroactive and apply to relations arising after their introduction.

The action of the law applies to relations that arose before its entry into force, only in cases when it is directly provided for by law.

For relations that arose before the entry into force of an act of civil legislation, it applies to the rights and obligations that arose after its entry into force. The relations of the parties under an agreement concluded before the enactment of an act of civil legislation shall be regulated in accordance with Article 422 of this Code.

According to Art. 422 of the Civil Code of the Russian Federation, the contract must comply with the rules binding on the parties, established by law and other legal acts ( peremptory norms), effective at the time of its conclusion.

If, after the conclusion of the contract, a law is adopted that establishes rules binding on the parties that are different from those that were in force at the conclusion of the contract, the terms of the concluded contract remain in force, unless the law states that its effect applies to relations arising from previously concluded contracts.

The laws that introduced the notarization of transactions with shares in real estate are not retroactive.

The law entered into force on 02.06.2016 and, accordingly, the requirements of this law on the compulsory notarization of some transactions apply to relations that have arisen only from the date of entry into force of the Law on Amendments.

Conclusion: if you entered into an agreement on the alienation of a share of real estate before 06/02/2016, and submitted it for registration to Rosreestr after this date, then you will register the ownership right without notarization.

Such a transaction, made in simple writing, is valid and Rosreestr cannot refuse registration.

Is there a time limit for registering a transaction in Rosreestr concluded before 29.12.2015 or before06/02/2016?

The current legislation does not limit and does not establish any time limits for submitting documents to Rosreestr if the transaction was concluded before June 2, 2016 or before December 29, 2015.

In other words, you could conclude an agreement for the sale or donation of a share in an apartment at the beginning of 2016, and register with Rosreestr at the end of 2017 or later.

For the form of transactions for the alienation of real estate (purchase and sale, exchange,) in article 550 Civil Code The Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation) established a special requirement - they are made in writing - simple or notarial, not subject to state registration.

At the same time, transactions are mandatory in the cases specified in the law, as well as in cases provided for by the agreement of the parties, at least according to the law, this form was not required for transactions of this type.

Federal Law of July 21, 1997 No. 122-FZ "On state registration of rights to and transactions with it" (Articles 24, 30) established a mandatory notarial form for transactions:

- on the alienation of shares in the right of common ownership of real estate, including when all the participants in shared ownership of their shares are alienated in one transaction;

- on the alienation of immovable property belonging to a minor citizen or a citizen recognized as having limited active legal capacity, are subject to notarization;

- as well as for transactions related to the disposal of immovable property on the basis of guardianship.

Notarization of a transaction means checking the legality of the transaction, including whether each of the parties has the right to complete it, which is carried out by a notary or official who have the right to do so in the manner prescribed by the law on notaries and notarial activities.

When notarizing a transaction, in particular, an agreement, it is guided by the rules provided for by the Fundamentals of the Legislation of the Russian Federation on Notaries (hereinafter referred to as the Fundamentals), in particular, it clarifies the persons who applied to it for certification of the transaction, explains to the parties the meaning and significance of the draft transaction submitted by them, checks, whether its content corresponds to the actual intentions of the parties and does not contradict the requirements of the law (Articles 43, 54-56 of the Fundamentals).

When certifying transactions aimed at alienating property, the rights to which are subject to state registration (Article 8.1 of the Civil Code of the Russian Federation), the notary checks the ownership of this property to the person who alienates it, unless, in accordance with the transaction at the time of its execution, this property is still does not belong to this person.

At the same time, the information required to certify the transaction contained in the Unified state register rights to real estate and transactions with it, or information entered in the state real estate cadastre, notaries request independently and receive in the established Federal laws dated July 21, 1997 No. 122-FZ "On state registration of rights to real estate and transactions with it", dated July 24, 2007 No. 221-FZ "On state cadastre real estate »terms.

Certification of agreements on the alienation of a residential building, apartment, summer cottage, garden house, garage, as well as a land plot is made at the location of the specified property.

Within the meaning of Article 48 of the Fundamentals, a notary certifies a transaction if it complies with the requirements of the law, and the documents submitted for its execution comply with the requirements of the law.

When drawing up a real estate purchase and sale agreement, you should pay attention to it and the peculiarities of its conclusion.

The contract for the sale of real estate must contain data that make it possible to definitely establish the real estate to be transferred to the buyer under the contract, including data that determine the location of real estate on the corresponding land plot or as part of other real estate. In the absence of this data in the contract, the condition on the immovable property to be transferred is considered not agreed by the parties, and the corresponding one is not considered concluded.

The contract for the sale of real estate must stipulate the price of this property.

In the absence in the contract of a condition on the price of real estate agreed by the parties in writing, the contract for its sale is considered not concluded. In this case, the rules for determining the price provided for by paragraph 3 of Article 424 of the Civil Code of the Russian Federation are not applied.

Unless otherwise provided by a law or the contract for the sale of real estate, the price of a building, structure or other real estate located on a land plot established therein includes the price of the corresponding part of the land plot transferred with this real estate or the right to it.

In cases where the price of real estate in the contract for the sale of real estate is set for a unit of its area or other indicator of its size, the total price of such real estate subject to payment is determined based on the actual size of the real estate transferred to the buyer.

The transfer of real estate by the seller and its acceptance by the buyer are carried out according to the signed by the parties deed of transfer or other transfer document.

Unless otherwise provided by law or contract, the seller to transfer the real estate to the buyer is considered fulfilled after the delivery of this property to the buyer and the parties signing the corresponding transfer document.

Evasion by one of the parties from signing a document on the transfer of real estate on the terms provided for by the contract is considered the seller's refusal to fulfill the obligation to transfer the property, and the buyer - the obligation to accept the property.

Acceptance by the buyer of real estate that does not comply with the terms of the contract for the sale of real estate, including in the case when such a discrepancy is stipulated in the document on the transfer of real estate, is not a basis for releasing the seller from liability for improper performance of the contract.

In the event that the seller transfers to the buyer real estate that does not comply with the terms of the contract for the sale of real estate on its quality, the rules of Article 475 of the Civil Code of the Russian Federation apply, with the exception of the provisions on the buyer's right to demand the replacement of goods of inadequate quality with goods that comply with the contract.

Under the contract for the sale of a building, structure or other real estate, the buyer simultaneously with the transfer of ownership of such real estate is transferred the rights to the land plot occupied by such real estate and necessary for its use.

In the event that the seller is the owner of the land plot on which the real estate to be sold is located, the ownership right to the land plot occupied by such real estate and necessary for its use is transferred to the buyer, unless otherwise provided by law.

The sale of real estate located on a land plot that does not belong to the seller by right of ownership is allowed without the consent of the owner of this plot, if this does not contradict the conditions for using such a plot established by law or agreement.

When such real estate is sold, the buyer acquires the right to use the relevant land plot on the same terms as the seller of the real estate.

An essential condition of the contract for the sale of a residential building, apartment, part of a residential building or apartment in which the persons who retain, in accordance with the law, the right to use this residential premises after purchase by the buyer, is a list of these persons indicating their rights to use the residential premises being sold.

Features of the purchase and sale of residential premises that meet the conditions for classifying economic class housing, established by the authorized federal body executive power are determined by law.

The specifics of the purchase and sale of an enterprise are provided for in Articles 559-566 of the Civil Code of the Russian Federation.

It should also be borne in mind that if the transaction requires a third party, body of a legal entity or government body either organ local government, a third party or the relevant body informs the person who requested consent or another interested person in reasonable time after receiving a request from the person who requested consent.

In the preliminary consent to the conclusion of the transaction, the subject of the transaction, to the conclusion of which the consent is given, must be determined. In case of subsequent consent (approval), it must be indicated to the performance of which the consent was given.

Silence is not considered consent to the transaction, except in cases established by law (Article 157.1 of the Civil Code of the Russian Federation).

To conclude a transaction for the alienation of real estate by one of the spouses, which is common property spouses, it is necessary to obtain a notarized consent of the other spouse (Article 35 Family Code Russian Federation).

When selling a share in the common ownership of real estate to an outsider, it is necessary to take into account that the seller of the share is obliged to notify the other participants in the shared ownership in writing of his intention to sell his share, indicating its price and other conditions on which he sells it.

A transaction for the sale of a share in the common ownership of real estate to an outsider may be notarized no earlier than one month after the seller notifies the share of the remaining participants in shared ownership. If the notary establishes that the seller of the share has submitted documents confirming the refusal of the remaining participants in shared ownership to purchase his share, the transaction may be completed before the expiration of a month from the date the seller notifies the share of the remaining participants in shared ownership.

The seller can notify about the sale of a share in the right of common shared ownership of real estate independently, as well as through a notary in the manner prescribed by Article 86 of the Fundamentals. Making within the framework of Article 86 of the Fundamentals notarial act upon the transfer of the seller's notice, the notary does not verify the accuracy of the information provided by the applicant about the co-owner and the address to which the notice should be sent.

When certifying transactions for the alienation of real estate by a notary, a notary tariff is charged, as well as a fee for the provision of legal and technical services. In this case, the notarial fee for the certification of transactions depends on whether the certification of the transaction is mandatory by virtue of the law or the notarial form of the transaction is optional.

For the certification of a transaction for which the legislation of the Russian Federation does not provide for a mandatory notarial form, the notary fee is charged by the notary in the amount established in accordance with the requirements of Article 22.1 of the Fundamentals. If the notarial form of the transaction is required, the notary charges a notarial tariff in the amount and taking into account the specifics established by the Tax Code of the Russian Federation.

The notarial fee established by the Fundamentals for the certification of transactions, the subject of which is the alienation of real estate, is:

spouse, parents, children, grandchildren, depending on the amount of the transaction:

up to RUB 10,000,000 inclusive - RUB 3,000 plus 0.2 percent of the real estate appraisal (transaction amount);

over 10,000,000 rubles - 23,000 rubles plus 0.1 percent of the transaction amount exceeding 10,000,000 rubles, but not more than 50,000 rubles;

to other persons, depending on the amount of the transaction:

up to RUB 1,000,000 inclusive - RUB 3,000 plus 0.4 percent of the transaction amount;

over 1,000,000 rubles up to 10,000,000 rubles inclusive - 7,000 rubles plus 0.2 percent of the transaction amount exceeding 1,000,000 rubles;

over 10,000,000 rubles - 25,000 rubles plus 0.1 percent of the transaction amount exceeding 10,000,000 rubles, and in the case of alienation of residential premises (apartments, rooms, residential buildings) and land plots occupied by residential buildings - no more than 100,000 rubles.

In the event that a transaction for the alienation of immovable property is subject to mandatory notarization by virtue of the law, the notary fee is charged by the notary in accordance with subparagraph 5 of paragraph 1 of Article 333.24 Tax Code Of the Russian Federation, as for the certification of other agreements, the subject of which is subject to assessment, if such certification is mandatory in accordance with the legislation of the Russian Federation, and amounts to 0.5 percent of the amount of the agreement, but not less than 300 rubles and not more than 20,000 rubles.

When certifying transactions, the subject of which is the alienation or real estate that has a cadastral value, if the assessment given to this real estate by the participants (parties) of the transaction, below its cadastral value, the cadastral value of this immovable property is used to calculate the tariff.

an official authorized by the state who has the right to perform notarial acts on behalf of the Russian Federation in the interests of Russian citizens and organizations (legal entities).a method of securing the fulfillment of obligations, allowing the creditor (pledgee) in case of default or improper performance by the debtor of the obligation secured by the pledge to receive satisfaction from the value of the pledged property (the subject of the pledge), primarily to other creditors of the person who owns the pledged property (the pledger). The subject of pledge can be material values, manufactured products, land or other property owned by the borrower.conditions on the subject of the contract, conditions that are named in the law or other legal acts as essential or necessary for contracts of this type, as well as all those conditions regarding which, at the request of one of the parties, an agreement must be reached.a legal situation due to which one person (the debtor) is obliged to perform a certain action in favor of another person (the creditor) (for example, transfer property, perform work, provide a service, contribute to joint activities, pay money, etc.), or to refrain from a certain action, and the creditor has the right to demand that the debtor fulfill his obligation.verification of the legality of the transaction, including whether each of the parties has the right to complete it. It is carried out by a notary or an official who has the right to perform such a notarial act, in the manner determined by the Fundamentals of the legislation of the Russian Federation on notaries and civil legislation.an agreement under which one party (the donor) transfers or undertakes to transfer certain property to the other party (the donee) free of charge or property right(claim) to herself or to a third party, or relieves or undertakes to release her from property obligations to herself or a third party. Gratuitousness is the main classifying feature of a donation contract; in the presence of a counter transfer of a thing or right or a counter obligation, the contract is not recognized as a gift. An agreement providing for the transfer of a gift to the donee after the death of the donor is null and void.a document that grants a person the right to perform a certain action by a person whose consent is required to complete a particular transaction in accordance with the law. Notarized consents include: the consent of the spouse to conclude a transaction (both for the acquisition and for the alienation of property), consent to refuse privatization, consent to travel abroad minor child, the consent of the owners (tenants) of housing for temporary registration.the ability of a citizen by his actions to acquire and exercise civil rights, to create for himself civic obligations and execute them. The legal capacity and legal capacity of a citizen are mandatory for his participation in civil rights about relationships. Legal capacity arises in full with the onset of the age of majority - 18 years. Until a person reaches the age of eighteen, legal capacity is acquired upon marriage and emancipation.certain actions (or inaction), as a result of which the owner of the property changes. With the transfer of ownership, the new owner has legal grounds for owning, disposing and using the property. As a rule, the basis for the transfer of ownership is the transaction.agreement of two or more persons on the establishment, change or termination of civil rights and obligations.land plots, subsoil plots and everything that is firmly connected with the land, that is, objects, the movement of which is impossible without disproportionate damage to their purpose, including buildings, structures, objects of construction in progress, as well as parts of buildings intended for placement Vehicle(parking spaces). TO immovable things aircraft and sea vessels subject to state registration, as well as inland navigation vessels are also included.actions of citizens and legal entities aimed at establishing, changing or terminating civil rights and obligations.a legally significant action performed by a notary or an authorized official in accordance with the Fundamentals of the legislation of the Russian Federation on notaries.