Drawing up an exchange agreement between close relatives

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Transactions involving movable and immovable property are considered the most common. This is due to the fact that the issue of improving living conditions or receiving money for the sale of existing property is relevant at all times. The most popular transactions are related to the purchase and sale of real estate or its exchange. Separately, it is worth highlighting the agreements in accordance with which the sale or exchange of a share in the apartment takes place.

The concept of an agreement for the exchange of shares of an apartment

Peculiarities of registration between close relatives and with a minor
The need to exchange movable or immovable property appears quite often in our lives.
This is convenient, since you do not need to draw up a purchase and sale agreement and pay a large tax. As for the exchange of shares of an apartment between close relatives, there are a number of nuances and features that we will consider in the article. We also focus on situations where a transaction is concluded with the participation of minors.

Expenses

When exchanging an apartment, the participant will bear the following expenses:

Payment for the services of an intermediary if he contacts realtors.
Payment for notary services if consent from the spouse to the transaction is required.
Tax according to Art. 217 Tax Code of the Russian Federation.
State registration fee.

In general, if expensive housing is exchanged, expenses can reach tens of thousands of rubles. The exact size must be calculated in each case separately. The housing exchange procedure can be carried out in different ways. The main thing is compliance with the law and attention at every stage of the transaction.

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Barter agreement: concept

An exchange agreement is an act that confirms the completion of a bilateral transaction on the basis of legislation. Since an agreement for the exchange of an apartment between close relatives assumes that the owner of a share of real estate and those who want to receive this share in exchange for something are both sellers and buyers, rights and obligations arise for the two parties.

Today, an exchange agreement between close relatives is very popular, as it provides for more favorable taxation. When selling an apartment, a tax of 13% of its appraised value is paid by each party, and in the case of me - a one-time tax.

Exchange methods

General data for three legally correct options for exchanging relatives' shares are shown in the table. For each item there are certain rules established by the current legislation. When studying practical issues in detail, one should not violate the rights of other owners, and also not forget about fulfilling obligations to the state in the field of taxation.

Significant savings in money when donating is a strong argument in favor of donation. Another advantage is that there is no requirement to obtain the consent of other residents. However, it should be taken into account that only close relatives do not pay the tax: spouses, children, parents, grandparents, grandchildren, brothers and sisters. But these benefits do not apply to similar property registration, for example, between an uncle and a nephew. The general parameters of the other options are equivalent. Important details are provided in the following sections.

The legislative framework

There is no separate law that would completely regulate this procedure, but there are a number of articles in different legislative acts.

Article 567 of the Civil Code of the Russian Federation states that each party undertakes the obligation to place one product at the disposal of the other party. Each party is recognized as both a seller, obliging to sell, and a buyer, obliging to accept.
Article 31 of the Civil Code of the Russian Federation. Explains the exchange procedure: if the exchanged property has the same value, the agreement is considered equal, if different, it is unequal and involves additional payment by one of the parties. The transaction is carried out only with real estate objects; it is impossible to exchange a share of an apartment for money, this will already be a purchase and sale agreement.
Information letter dated September 24, 2002, No. 69. Explains the nuances regarding the number and names of objects subject to exchange.

Practice shows that the presence of many nuances that usually arise during such agreements requires recourse to real contracts already enshrined in court. You can find information on the official website of the district court.

Essential conditions

Let's talk about the essential terms of the agreement. They are required to be indicated in the contract and to be executed at the same time. Let's look at the main ones:

The quantity of goods is the main condition. This clause of the agreement talks about the quantitative ratio of the property that is the subject of the agreement, as well as the procedure for determining it. This is stated in Articles 456, 466 of the Civil Code.
Assortment of goods - this item is provided for in Article 467 of the Civil Code. Since we are talking about two parts of real estate, this must be indicated in the document. Also, the assortment may not be defined.
quality . A very important point, as it allows the parties to visually see on paper that the quality corresponds to the current state of affairs. This paragraph is provided for and regulated by Article 469 of the Civil Code.

If the agreement does not stipulate a quality condition, then one of the parties will not be able to challenge the exchange agreement if he is not satisfied with the condition of the share.

complexity . Provided for in Article 478. This condition is applicable if furniture and other components of the housing paraphernalia are transferred along with part of the real estate.
Execution of obligations . Term. In accordance with Article 457 of the Civil Code, the contract must clearly define the period within which the parties must transfer the property to the other party.
Other conditions. If the parties have other requirements for each other, these also need to be written down. Verbal compliance with the terms is not always met and may result in a violation of the rights of one of the parties.

Advantages of drawing up an exchange agreement

The main advantage of the deal is reduced tax. After all, during the purchase and sale, each party pays 13% mandatory tax on the transaction. An exchange agreement between relatives involves a one-time payment of tax, which significantly saves the budget of each party.

The second advantage is a simplified procedure for establishing a new ownership right, which takes much less time to complete.

The third advantage is the functionality of the act itself. There is no official structure of the contract; the parties can specify in it all the nuances for maximum benefit - from additional payments to responsibilities.

Notary, USRN, tax office

When choosing any of the options, the transfer of shared ownership is formalized through a notary office. Additional authentication of documents and confirmation of the legal capacity of the participants will prevent unnecessary problems during the consideration of the legality of the transaction in court.

After signing the certified agreement, they begin to register new rights independently (through the regional MFC), or entrust the procedure to a notary. Rosreestr will not complete the registration procedure if errors are found when registering the exchange of shares between relatives. Refusal will be received if there are prohibitions and encumbrances. To ensure that there are no limiting factors, you can receive a detailed certificate upon a standard request. Only after creating a new entry in the Unified State Register of Real Estate database, a real estate transaction is considered fully completed.

Tax on income received during the transaction is paid if relatives wish to exchange shares in apartments even with a slight difference in value. This obligation is absent if the property has been owned for less than three (five) years with registration of ownership rights before (after) 01/01/2016, respectively. The completed declaration in standard form is submitted no later than April 30. next spring after one year of completion of this operation. Tax payments can be made until July 15 inclusive.

For your information! When submitting documents for state registration to the Unified State Register of Taxes, a check is carried out to ensure that there are no tax arrears. The obligations noted above should be fulfilled before the deadlines expire so as not to delay the full completion of the transaction.

Form for drawing up an agreement for the exchange of shares of an apartment

The exchange agreement is drawn up on a white sheet of A4 paper in printed or written form. The sheet should be clean, smooth, not wrinkled. You need to use black or blue ink; in the case of a printed version, standard font and text size, without indents, additional characters or color highlights. The document is notarized, a specialist checks the correctness of the agreement from a legal point of view, and also finds out all the subtleties of the exchange, for example, to what extent the parties’ share is equivalent.

Standard information about the exchange agreement:

passport details of the parties involved in the agreement;
an accurate description of the objects of exchange;
the amount of the difference in the cost of objects, if the contract provides for it;
the procedure for carrying out the exchange procedure itself is indicated: the sequence of releasing square meters, extract, registration, etc.;
special conditions, life situations, force majeure circumstances (if this happens) are listed;
responsibility of the parties for fulfilling the terms of the agreement;
actions in the event of force majeure, etc.

The structure looks like this: title - date and place of preparation - names of the parties - subject of the agreement - exchange procedure - responsibility of the parties - special provisions - conclusions.

The more detailed the exchange agreement is drawn up, the fewer problems and nuances will arise after its registration, in practice. All data on the share of real estate must be entered into the act: size, location, cadastral number, who it is registered with, etc.

Making additional payments

Since the contract specifies the cost of the apartments, an additional payment is established in the form of the difference between the specified cost . Its amount and the fact of availability are included in the clause of the terms of the transaction.

Here you will need to provide information:

in what form (currency) it will be transferred;
in accordance with what deadlines;
how.

Having a lawyer when making an exchange with an additional payment is especially appropriate , since he will not only help draw up an agreement for the exchange of an apartment with an additional payment, but can also provide representative assistance when transferring money.

In some cases, it is convenient to use a safe deposit box, where one party deposits the agreed amount, and the other withdraws it after signing the agreement.

Confirmation of receipt of money is very important , because in the event of termination of the contract, the money will have to be returned, and for this, the fact of its transfer must be documented.

In no case is it recommended to underestimate the amount of the transferred surcharge, for example, under the pretext of reducing tax payments or to hide its fact.

Firstly, the Federal Migration Service checks the adequacy of the transactions and can punish for attempted deception. Secondly, this will prevent you from falling for scammers.

Registration procedure

The drawn up agreement for the exchange of shares in apartments between relatives is not yet a final document authorizing the transaction. Participants must simultaneously contact Rosreestr and submit applications (a sample is offered by the institution). The registrar, along with the application, accepts a receipt for payment of the state fee. 30 days are given to verify the act. If any discrepancies or questions arise, the contract may be referred to the court for review.

Situations when a transaction is invalidated

There are a number of circumstances under which an exchange may be declared invalid by a court:

A deliberately false transaction with the aim of concealing income.
Lack of permission from the guardianship and trusteeship authorities.
Participation of an incapacitated person or an elderly person.
The emergence of new circumstances.

Submission of documents

After a successfully completed property transaction, the parties will need to:

Make 2 copies of documents.
Attach 4 copies to the originals and copies of documents. contracts, 2 of which will remain in the State Property Committee, and one will be returned to each of the owners.
Pay the state fee and attach receipts.
Submit what is indicated for inclusion in cadastral records by writing an application.

Documents will be accepted against signature, and after 21 working days, upon presentation of a receipt and passport, new ones will be received.

Features and nuances

If you want to carry out the procedure for exchanging shares of apartments, you need to obtain the consent of the remaining owners. It is important to find out in advance how commensurate your share is with the other one offered for exchange. If not, find out the amount of the surcharge. To avoid paying tax, you can register a gift between relatives.

During the process, many nuances can arise. That is why it is important to involve a competent notary in the procedure, who knows all the “pitfalls” in advance and will be able to initially draw up a document that is correct, from a legal point of view. Contact our notary office to protect yourself from unequal transactions and fraud. Ivanov Boris Sergeevich is an experienced specialist who will help you draw up an exchange agreement quickly, legally and on the most favorable terms for you.

Treat your share of property responsibly, because, sadly, the world is full of people who want to deceive you.
Trust not the words of relatives, but the recommendations of an independent specialist - a notary! Make an appointment

Gift deed

Two documents are notarized. In this case, there is no tax base and corresponding obligations to the state. Calculations are made during the exchange of shares according to a scheme convenient for relatives. Registration is completed according to the standard procedure by registering with Rosreestr.

You can download the deed of gift here.