Find out on our website how to exchange a room in a communal apartment or dorm, a two-room and a three-room apartment, whether it is possible to exchange a mortgaged living space or an old apartment for a new building, as well as how to make a long-distance exchange and a forced exchange of living space through the court.
Legislative regulations
Are there special conditions stipulated in the law in the case of related exchange of apartments?
The legislation covers in detail the issues of barter in any interpretation.
Article 567 of the Civil Code talks about what this agreement is, and the following articles, numbered after it, reveal individual nuances of the exchange and its foundations.
One way or another, the material of the Civil Code is very well compiled and answers all the basic questions that citizens may have in the process of drawing up an agreement. And yet, these articles are about everything except the subject composition.
Barter is a two-way transaction, which means that the parties can be both relatives and complete strangers to each other. The articles of the Civil Code do not mention that this transaction has any privileges if it is carried out between two related persons.
This means that regardless of who you are to your opponent under the contract, you will be subject to the same terms of the contract.
You can also become familiar with the issues of barter between related persons by referring to the judicial practice of the court closest to you.
You will not find new norms or references to the act in the court decisions, but you will once again make sure that the subject composition of the transaction does not in any way affect its conclusion and completion.
You can learn about how to exchange a room in an apartment for a house and a plot of land, how to exchange a private house or cottage for an apartment with an additional payment, as well as how to draw up an agreement to exchange an apartment for a house with a plot of land from our articles.
Features of the exchange agreement
Many novice specialists working in the real estate market have little understanding of the difference between the procedure for exchanging apartments and drawing up an exchange agreement .
In the future, gaining experience and understanding the difference, they simply follow the path of least resistance and act in accordance with the established stereotype, and not with market conditions, which offer a variety of options for property transactions.
The exchange of apartments is carried out exclusively within municipal property , is intended for non-privatized apartments and has a limited range of applications. Read more about the exchange of privatized and non-privatized apartments here.
In contrast, the agreement for the exchange of residential premises has sufficient opportunities for the direct transfer of property from one owner to another.
The peculiarity of this agreement is that the parties entering into it simultaneously alienate and acquire ownership rights. Therefore, differentiating the parties is somewhat more difficult, which requires professional intervention from an experienced lawyer.
The differences between an exchange agreement and other types of agreement are described in detail in this material.
To independently draw up a contract of this type, you need to take into account all the nuances that may arise as complications of the drafting procedure.
The main point that needs to be taken into account in such a case is that all provisions of the contract must be carefully thought out and verified .
Once the contract is signed and registered, it must be executed accurately. If one of the parties tries to refuse to fulfill the terms of the contract , the other can force it to perform in court.
Methods
Now it’s worth talking about options for related barter of housing in property.
The first and simplest method follows from the title of our article. It consists of drawing up an exchange agreement.
The essence of the transaction is that the parties exchange real estate , that is, they are simultaneously sellers, alienators and acquirers.
Of course, the transaction can be either equivalent or not - this is decided by each owner in agreement with the other on an individual basis. The contract may include a condition for additional payment on both sides.
This transaction can be immediately submitted (with the appropriate submission of documents and agreement) to Rosreestr or certified in advance by a notary. This agreement is certainly subject to tax at the rate of 13 percent .
The second way to exchange living space with relatives is to draw up a sales contract . Basically, this method is used by those who are not interested in keeping the maximum amount of money from the transaction for themselves, as well as those who do not trust the exchange procedure.
Since both parties are both alienators and acquirers, two sales contracts are drawn up. Each of them is subject to notarization, but only if opponents do not want to be deceived. Afterwards the transaction is formalized in Rosreestr.
This method of bartering is the most expensive. The fact is that this method involves paying a tax of 13 percent of the agreement amount twice - for each drawn up and certified agreement.
Now let's talk about the least expensive method of related barter apartment for apartment. Now we are talking about giving. The fact is that gifts are taxable, but only if they do not occur between close relatives.
So, if a person is in a close family relationship, then it is much more profitable, from a financial point of view, to draw up two gift agreements and receive ownership of new property to replace the alienated one.
True, there is one minus. If the exchange involves an additional payment, then this cannot be stipulated in the gift agreement.
You will have to be content only with the fact that you have exchanged living spaces, but the additional payment of funds will not be regulated by law.
How to compose?
An agreement is a document in accordance with which, among other things, large property transactions are carried out. Therefore, its preparation is an extremely responsible procedure.
It must be drawn up in legally correct language that does not allow interpretation regarding the fact of the exchange. Drawing up a preliminary text of the contract will become relevant .
Sample preliminary agreement for the exchange of residential premises.
In this case, the parties and possible representatives can further work out all the inaccuracies and points that were not foreseen at first glance.
The finished document must be drawn up in accordance with the standards , without errors or blots, and contain the following data:
- Definition of the parties to the transaction as “Party 1” and “Party 2”.
- Explanation of the nature of the transaction: barter.
- A detailed description of the object of exchange, indicating the address and technical characteristics of the apartment, presented by the first party.
- A detailed description of the apartment involved in the property transaction from the second party.
- Indication of the cost of objects (apartments).
- Statement of the fact of exchange.
- Conditions accompanying the transaction. Here it is necessary to provide for all possible nuances, up to the timing of the discharge of family members of the owners, the option of transferring the additional payment for the difference in the cost of housing (if any) and other important points.
- Responsibilities of the parties, that is, obligations to transfer apartments.
- Conditions for possible cancellation of the transaction. They must be written out carefully in case of termination of the contract, in order to avoid costly and lengthy litigation.
- Addresses, details and signatures of the parties.
It is imperative to indicate that the apartments are not subject to collateral value and do not carry other encumbrances.
After drawing up the agreement for exchanging an apartment for an apartment, it must be registered at the local branch of the FS Cadastre and Cartography. When registering, you must first pay the state fee provided for this type of service.
Sample agreement for the exchange of an apartment.
Sample agreement for the exchange of an apartment with an additional payment.
Where to begin?
First you need to prepare for barter. First of all, agree on a deal with your opponent, discuss its details, and inspect the premises. After this, carry out preparatory work with housing.
Namely, you must write out everyone registered so as not to burden the housing and the new owner with problems, and pay utility bills if there are debts . In addition, it is necessary to prepare all technical documentation for the apartment.
If the property has other owners besides you, they should not be against the transaction (read about exchanging a share of living space). That is, they must sign an alienation agreement or go to court to divide the property.
Documents for exchanging a social rental apartment
When exchanging residential space for social rent, each tenant must prepare and submit to the local administration, along with the exchange agreement, the following package of documents:
- a standard application requesting approval for the exchange of premises;
- an identification document of the tenant of the residential property and a copy thereof;
- social rental agreement;
- a warrant for moving into the apartment and a corresponding extract of the decision on permission to move in from the municipal body;
- a certificate about the tenant’s family members who are registered in the residential premises and live with him;
- written consent of all family members living in the exchanged apartment to carry out the exchange;
- If the premises to be exchanged are inhabited by family members of the tenant who have not reached the age of 18, as well as citizens recognized as partially or completely incompetent, consent to the exchange of guardianship and trusteeship authorities will be required.
In addition, it would not be superfluous to prepare a certificate from utility services about the absence of arrears in payment of utility bills, since the mutual provision of such a document by the participants in the exchange of living space will allow in the future to avoid possible claims and proceedings on both sides.
Where to go?
When all the work has been completed, you can begin to formalize the apartment barter transaction between relatives. First, you need to estimate the total cost of your home and your opponent’s home. If the prices are reasonable, you can proceed to drawing up a contract, but if not, it’s worth talking about additional payment.
After this, you either draw up a contract yourself, without notarization, or contact a notary office .
There the document is checked, assigned a number and entered into Rosreestr.
If one of the parties fails to fulfill its obligations, this agreement will be good evidence in court.
Related exchange of apartment ownership for social rented housing
Russian legislation does not contain direct instructions on actions when exchanging a privatized apartment for a non-privatized one, therefore, the process is quite complex and time-consuming. However, there are several ways to solve this problem:
- You can privatize an apartment rented from the state and arrange an exchange through the purchase and sale or donation of residential premises.
- You can register an adult family member in a non-privatized apartment by deregistering him or her in privatized housing. It is possible to register it in an apartment rented from the state only if the size of the living space allows it. After its registration, it is necessary to change the main tenant, that is, the new registered tenant must enter into a new social tenancy agreement with the administration. A direct change of owner of a privatized apartment can be accomplished by drawing up a donation agreement.
What documents are required?
In order to carry out a related exchange of living space, you must provide the following types of papers :
- certificate of ownership of the apartment;
- agreement from other owners on alienation;
- technical documentation for housing;
- certificate from the BTI;
- extract from the house register;
- cadastral passport of living space;
- tax payment receipt;
- certified or uncertified contract.
All these documents are collected in one package and submitted to Rosreestr, where they are reviewed by employees. If everything triples, then the fact of the exchange will be formalized.
Concept
What is an agreement to exchange an apartment for a house with a plot?
In such a transaction, the party that owns the apartment exchanges it for a house with a plot of land on which it is located.
If the participants agree that the exchange is unequal, one of them makes an additional payment to the other in money.
In this transaction, the first participant loses ownership of the apartment (is its seller), and in return acquires ownership of the house and land (is its buyer).
The second loses ownership of a plot of land with a house on it (is their seller), acquires ownership of an apartment (is their buyer) (read about exchanging a house for an apartment).
What is it needed for?
The purpose of preferring the option of agreement under consideration is to obtain the desired result in the shortest possible time with a minimum of costs.
Other tasks are solved at the same time:
- The risk of deception and the possibility of fraud are reduced. Unlike purchase and sale, during a barter transaction, not a single participant is left without housing.
- The one-time nature of the transaction eliminates the possibility of losing funds due to inflation. Sales and purchase transactions contain such a danger, as we have repeatedly seen during the years of reform.
- It is difficult and risky to save or borrow the amount needed for a purchase due to devaluation, financial illiteracy of the population, and bank fraud. The type of transaction under consideration solves the problem of mutual shortage of cash .
- It is difficult for a non-specialist to adequately evaluate one’s own property intended for sale and someone else’s property being purchased. A person acquires something that is individually valuable to him, although from a market point of view it may not be valuable.
- The barter transaction is reliably protected from bailiffs by Article 446 of the Code of Civil Procedure.
The only apartment, house with a plot belong to the category of real estate that cannot be seized from a person for debts or confiscated by a criminal verdict. If the debtor momentarily turns the only home into money, the creditor has the right to seize it. Such a debtor risks becoming homeless.
- Among Russians there are many frivolous citizens who find it difficult to resist the temptation to squander the cash they suddenly find themselves in their hands: drink, spend on drugs, entertainment, show off their luxury and extravagance. As a result of this behavior, it is easy to leave yourself and your family without housing and the opportunity to purchase it. Mena protects against such reckless behavior.
- Tax savings. When exchanging, personal income tax is taken only from the amount of the surcharge if it is officially mentioned in the contract (read about the exchange agreement with a surcharge). An alternative option for the purchase and sale of real estate owned for less than three years involves the payment of personal income tax by both parties , as a result we get a doubling of the tax .
- Exchange of premises in an apartment building for a private house is an excellent option for solving the problems of relatives. Parents are not able to run a garden due to their age; they need city comfort. The son’s family, on the contrary, is full of energy; they need space for a garage, a swimming pool, a bathhouse, and a greenhouse. In this case, changing is a natural solution, in which none of the participants loses the opportunity to visit their previous place of residence.
- Such an agreement eliminates the need for temporary rental housing while searching for new options through purchase and sale. This saves the family from temporary inconveniences that may drag on.
Rights and obligations of the parties
In case of change, the seller of real estate is obliged to transfer it; buyer must accept.
Each party is obliged:
- Transfer objects:
— free from the rights of other persons; — with all equipment, documents; - in the quantity specified in the contract; - exactly those specified in the agreement; — agreed quality and configuration; - with keys, glazed windows, entrance doors.
- Notify the counterparty within a reasonable time of the detected violation of the terms of the contract.
- Accept the transferred objects.
- Pay equally the costs associated with the transaction and its registration.
Each party has the right to demand that the counterparty fulfill its obligations. Participants may be released from performing their duties if force majeure circumstances arise.
The document is drawn up in three copies (for both parties and the registering authority). After signing the transfer deeds and state registration of the agreement, mutual obligations are considered fulfilled.
Terms and cost of registration
The registration period is regulated by law, but according to general rules it ranges from 3 to ten days . The deadline may be extended by failure to submit certain documents, as well as complications in the form of sending requests to other regions.
In accordance with the Tax Code, this transaction is subject to 13 percent deductions in favor of the state of the total amount.
But if you decide to make an exchange through a gift, then you can certainly count on the fact that the transaction will be free due to the fact that it is carried out between relatives.
Related exchange of social rental apartment
The tenant's right to exchange is confirmed by Part 1 of Article 72 of the Housing Code of the Russian Federation. At the same time, part 5 of this article establishes that participants in an apartment exchange have the right to exchange social housing between two, as well as three or more persons living in the same village or city or in other settlements located on the territory of the Russian Federation. To carry out an exchange of living space, a special agreement is drawn up, which specifies the conditions for the exchange. The agreement is drawn up in triplicate and signed by the parties to the transaction. One copy is provided to the authorized body for registration; it will be the main legal document that certifies the transfer of living space to another person. Part 1 of Article 74 of the Housing Code of the Russian Federation provides for the transfer of the original agreement for the exchange of living space of each of the participants to local administrative authorities - representatives of the landlord in order to obtain approval for the exchange. At the same time, the administration has the right to refuse to issue an exchange permit only in exceptional cases provided for in Article 73 of the RF Housing Code, these are:
- if a claim is brought against one of the tenants of the exchanged living space for termination or change of the terms of the social tenancy agreement;
- the residential premises to be exchanged have been declared unsuitable for habitation in accordance with the procedure established by law;
- the right to use the residential premises to be exchanged is disputed in court;
- a decision has been made to overhaul a certain house where the living space to be exchanged is located, with reconstruction or redevelopment of residential premises;
- a decision was made to demolish the house where the living space is located, subject to exchange or its conversion for use for other purposes;
- as a result of the exchange, a citizen who has one of the severe forms of chronic diseases specified in clause 4 of part 2 of article 51 of the Housing Code of the Russian Federation moves into a communal apartment.
In accordance with the text of Part 5 of Article 74 of the Criminal Code of the Russian Federation, the exchange of social rental housing involves the cancellation of previous rental agreements concluded earlier and the conclusion by lenders of new agreements on the rental of residential premises with tenants under an exchange agreement. Representatives of local government bodies are obliged to promptly terminate the previous contract and enter into a new one no later than within 10 days from the date of provision of the contract for the exchange of social tenancy premises.
Exchange for a new building
A completely different scheme for exchanging an apartment applies to transactions on the new housing market. Under the trade-in scheme, a developer or real estate agency accepts an old apartment for sale and simultaneously books a new one, fixing the price.
Attention! In trade-in, several agreements are most often concluded - for the provision of services for the sale of old housing for a percentage; purchase and sale agreement with the found buyer; booking agreement and finally the purchase and sale agreement for the new home.
There is another, less common scheme - when the old apartment is taken as part of the payment for the new one. Additional payment is made according to the DCT. Such operations are carried out by developers.
Usually the following requirements are imposed on old housing:
- location in the city in which the new building is purchased;
- good technical condition and availability of all documents;
- the cost is lower than the price of new housing.
Note! The developer, as a rule, conducts a special market assessment to establish the real value of the property from an independent appraiser.
List of documents and procedure
Typically, developers ask to provide the following documents:
- originals of title documents and an extract from the Unified State Register of Real Estate;
- registration certificate not older than 5 years;
- notarized consent of the spouse, permission for guardianship if there are minor participants;
- certificate of absence of debts for housing and communal services, major repairs, passports for electricity, water and gas meters;
- certificate of registration.
Based on these documents, a DCP is developed according to the developer’s form, after which the document is signed and submitted for registration through the MFC to Rosreestr. After state registration, the final payment is made - additional payment.
Difference between exchange and barter
When talking about exchange transactions, you need to take into account the existence of two different options. In both cases there is an exchange, but there are some differences.
In barter transactions, residential space is exchanged by its owners. When the agreement is signed, ownership passes from one owner to another. If an exchange is concluded, then actions are performed on housing that is not owned. They have a lease agreement for him.
An agreement for the exchange of an apartment or other real estate provides that each of the participants in the transaction is a seller and a buyer at once. The apartment exchange agreement provides for the renegotiation of contracts with landlords. Before the transaction, you need to coordinate the actions with the landlord. It is not possible to exchange space used for hire for the owner's real estate. These transactions are subject to different laws. The exchange is subject to the Civil Code, and the exchange is regulated by the Housing Code.
