Real estate has always been considered one of the most common and attractive types of investments and the most desirable asset for purchase. The number of transactions with such property continues to grow steadily every year: for example, in 2021, the number of real estate transactions in the secondary housing market (4.2 million) increased by more than 14.5% in comparison with 2020 (3.7 million) (As of December 2022, statistical indicators for the current year have not been published, so the author used data from the previous year).
At the same time, it must always be remembered that the acquisition of real estate is a complex process that requires unconditional compliance with the applicable law, careful verification of documents and competent legal support. In addition, the conduct of such transactions may often involve the mandatory participation of third parties (in particular the spouse (in the alienation of joint property), child services, banks, etc.).
RIA-Nedvizhimost approached Elena Gladysheva, Managing Partner of RI-Consulting, for explanations:
1. Let's name real estate transactions where the participation of child services, a bank, bailiffs, a doctor is mandatory. And explain why in each case the presence of these specialists will be mandatory.
1) Real estate, of which a minor child is the owner, is exclusively his property. In this connection, parents, despite the fact that they are the legal representatives of the child, may not voluntarily alienate his immovable property without the prior permission of child services (Art. 28, 37 of the Russian Federation Civil Code, Art. 21 of Federal Law of 24.04.2008 No. 48-FZ "On trusteeship and guardianship”).
These rules apply to transactions involving minors under the age of fourteen, as well as citizens lacking legal capacity, and are aimed at protecting their interests as persons who cannot independently perform legally significant actions, against dishonest behavior on the part of their legal representatives (For example, when the guardian, pursuing his own interests, intends to conclude in his own favor a donation of the apartment of the guarded person).
At the same time, the law proceeds from the fact that prior permission from the child services and custody service for a real estate transaction is required only in cases where it may lead to a worsening of the property situation of a minor or a ward (in particular, when selling, donating, exchanging property owned by a minor, dividing such property or allocating a share from it, etc.). In turn, other transactions, such as accepting an apartment as a gift on behalf of a minor, do not require prior consent.
1.1. If a minor is not the owner of the apartment, but is registered in it, is the participation of child services obligatory in this case? And if yes, why? Is a notary required in this case?
If a child is not the owner of immovable property, but simply registered in the apartment, child services do not need to participate in the sale of the apartment. Notary certification of the contract is also not necessary.
However, by virtue of Article 20 of the Civil Code, children under the age of 14 must live with their parents, so the place of their registration is the place of registration of one of their legal representatives. In such cases, the seller (one or both parents) needs to remove the child from the registration before selling. This is only possible with the consent of both parents. As a rule, de-registration in the apartment takes place before the transaction is concluded or within a period determined by the parties to the agreement.
Otherwise, the new owner (buyer) of the apartment reserves the right to deregister and evict (if living) the child by force through the court.
2) Often citizens acquire real estate (apartment) not on their own, but with a mortgage from the loan. In this case, by virtue of the law, the bank that issued the loan acquires the right of the mortgagor to the said residential property.
Of course, in such cases, the owner of the real estate is not deprived of the right to enter into transactions with it, including its alienation to third parties. However, in order to protect the interests of the bank (mortgagor), which has the right to expect proper execution of the contract and the timely repayment of the loan, there are several restrictions on transactions with mortgage real estate: the owner (mortgagee) may not sell, transfer or encumber the subject of mortgage (real estate) without the consent of the bank (mortgagor).
If the bank gives its consent to the alienation (e.g., the sale of an apartment), the legal registration of the transaction is possible in one of the following ways:
- reissue of the loan (assignment of the right) to the new owner (the buyer) - the buyer becomes the owner of the real estate and the new borrower under the mortgage agreement;
- the buyer takes a mortgage in the same bank where the seller received the loan, and pays his debts; the bank provides registration of the transfer of ownership of the apartment to the buyer.
3) If the owner of immovable property (with the exception of residential premises, which are the only habitable premises for a citizen and his family members) acts as a debtor under the enforcement proceedings, his property may be sold at auctions in the manner prescribed by Federal Law No. 229-FZ of 02.10.2007 "On Enforcement Proceedings”. So, first the bailiff will try to collect the debt at the expense of the debtor's income, but if the amount of debt is not repaid, the bailiff has the right to begin the sale of the property. At the same time, the foreclosure of land plots within the framework of enforcement proceedings is allowed only on the basis of a court decision.
However, the bailiff is not a third party in the transaction for the sale of the seized property. As an official of the authorized state body, he acts as the organizer of the auction for the sale of such property and acts solely in the interests of the debtor's creditor(s).
4) The law does not provide for the obligatory participation of a doctor in transactions with immovable property.
However, the parties to the transaction, in order to mitigate potential risks, may agree on the mutual provision of medical documents (in particular, certificates, examination results, etc.) confirming the person's legal capacity and ability to understand the meaning of his actions or to control them. As a rule, these are certificates from narcological and psychoneurological dispensaries that the parties are not registered with them. If the agreement is certified by a notary, he also asks the parties to the transaction to provide the above-mentioned certificates.
2. Explain why it is so important to get the spouse's consent for a transaction? And in what cases is this consent required: only when the property is being sold or when it is being purchased as well? And what about if the personal property of the spouse is sold, in which case the consent will also be required (if so, why)?
When entering into real estate transactions, citizens must obtain notarized consent of the spouse or a notarized statement that there is no registered marriage at the time of the transaction (clause 3, Article 35 of the Family Code).
This requirement is imperative and applies to all transactions for the alienation (sale, donation, exchange, etc.) of immovable property that is the common property of the spouses (i.e., property acquired during the marriage, or property that has been substantially improved during the marriage (for example, through repairs). Consent to sell personal property is not required from the other spouse.
Otherwise, the spouse, whose notarized consent to the transaction was not obtained, has the right to demand that such a transaction be declared invalid by a court according to Article 173.1 of the Civil Code (transactions performed without the consent of a third party required by law).
It is important to note that the law does not provide for a spouse's consent to the purchase of real estate (since it is actually a disposal of common funds). However, we believe that its receipt is also necessary, as it will protect the transaction from possible claims in the future (For example, a spouse who was against the purchase of property at the expense of the common budget may apply to the court to invalidate such a transaction on grounds of lack of his or her consent to the purchase).
In addition, it is important to note that when carrying out a transaction with real estate, a bona fide purchaser is in any case guided by the information placed in the Unified State Register of Real Estate. If the property is subject to joint ownership, information on both spouses may be entered into the State Register. In the absence of such information (for instance, when only one of the spouses is listed as the owner of the apartment in the public register) any of the co-owners of the joint property may apply to the Rosreestr to have it entered in the State Register. Otherwise, the purchaser cannot be held liable for the alienation of joint property without the consent of the co-owner, i.e., such a transaction cannot be challenged upon an application of the spouse, without whose consent the alienation of property took place (Decision of the RF Constitutional Court dd. July 13, 2021, No. 35-P).
3. Why does the owner of the interest need to notify the other owners of the sale?
As a rule, it is much more difficult to sell a share in real estate than it is to sell an entire house. This is due to a number of factors. (For example, the impossibility of normal use of the entire apartment, the need to live and use the property jointly with other persons, etc.)
In this regard, the law gives other owners the preferential purchase right for the alienated share in such immovable property. Thus, when selling a share, the seller shall notify in writing other joint tenants of his intention to sell his share to an outsider, specifying the price and other conditions on which he sells it. Only if the remaining members of the shareholding do not purchase the sold share within a month, the owner has the right to sell his share to any other person.
Otherwise, any other joint tenant is entitled to claim in court to transfer to him the rights and obligations of the buyer and to charge the seller with the losses incurred.
4.Are there any real estate transactions that require the certification of a prosecutor or judge or law enforcement agencies in general?
The law does not require a prosecutor, judge, or law enforcement authority to certify any real estate transactions.
LINK TO THE PUBLICATION
17.02.2023
Earlier the FAS started anti-cartel inspections of the largest sugar producers - Rusagro Group LLC, Rusagro-Center LLC, Prodimex LLC, GC Dominant LLC, Trade House Dominant LLC and ChekhovSugar LLC, as well as the Union of Sugar Producers of Russia non-profit organization. The FAS also audited market...
15.02.2023
The Supreme Court of the Russian Federation (SC) will decide which payments of a bankrupt citizen may be recognized as alimony for the maintenance of a minor child if no formal agreement on them has been concluded. Lower courts decided that in the absence of a written agreement, the money is not...
12.02.2023
Referred to the Supreme Court Chamber for Commercial Disputes: a dispute to challenge transactions in bankruptcy. Elena Gladysheva, Managing Partner of RI-Consulting, Moscow, discusses what position the Chamber for Commercial Disputes can take. How can it influence the practice? "The institution of...