Features of buying an apartment in a new building from a contractor. What to check and how to complete the transaction?

Buying an apartment in a new building is the dream of millions of Russians.

You can purchase housing on the primary real estate market from a developer, investor or contractor - a company that performs certain types of work at a construction site in accordance with an agreement with the developer.

It turns out that when purchasing an apartment from a contractor, the transaction price is often lower than that from the developer.

However, not everything is so smooth and pure in this scheme of purchasing a home, so it is worth understanding all the pros and cons, with pitfalls, when deciding to purchase an apartment from a contractor.

Features of purchasing housing in a new building

A contractor is a company working under a contract . This company carries out the customer’s instructions during the construction of the house, and as payment for its services receives apartments in the house under construction from the developer. The parties enter into an agreement for shared participation in construction, or certain apartments without an agreement are reserved for the contractor.

The resulting apartments are most often sold in advance in order to be able to pay workers, purchase materials, etc. If there is no such need, the sale of real estate is carried out already at the stage of handing over the house.

In terms of its legal status , the contractor differs from the developer, therefore he cannot re-register a shared construction agreement for the buyer ; the assignment of property rights (Article 388 of the Civil Code of the Russian Federation) or the execution of a purchase and sale agreement (Articles 549-558 of the Civil Code of the Russian Federation) are within his competence.

The assignment of rights to claim an apartment is a procedure regulated by law.

What is the essence of the deal?

Expert opinion

Stanislav Ershov

Qualified lawyer. Ready to answer any of your questions! Ask them right now!

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Many potential buyers do not understand why they buy real estate from contracting companies and how they end up with it in the first place. A contractor is an organization that provides services to the developer at various stages of construction. Such companies carry out construction, installation and finishing work, do glazing, and landscape the territory.

Since developers often experience a shortage of financing, especially during periods of sales decline, they pay their counterparties by offset. The contractor receives for his work not real money, but square meters in a new building. This occurs by drawing up a DDU between the parties. The transfer of rights under the agreement is subject to state registration.

It also happens that builders hand over completed housing to contractors. In such cases, a purchase and sale agreement is concluded. The contracting organization registers the square meters as its property and then resells them.

Of course, the performer may not be happy with this. But sometimes he is simply presented with a fait accompli, and he has to agree to a deal. As a result, the contractor sells apartments to strangers under an assignment agreement. Since he needs to buy materials, pay taxes, and salaries to staff, housing is usually sold at minimal prices.

What are the benefits for the buyer?

The advantages of buying an apartment through a contractor are not many, but they are quite significant. Since the contractor is a company engaged in construction work, it sets a minimum price for the sale of apartments . Typically, you can save 5-10 percent.

If the contractor’s financial situation is difficult, and the developer pays for the work exclusively in apartments, the savings on the purchase will be even greater, since the contractor needs to sell the property as quickly as possible.

Bill of exchange

Customers do not always pay contractors with residential squares; sometimes they issue bills of exchange for an amount equal to the cost of the apartment as payment. A bill of exchange is a paper issued for a certain amount and obliging the customer to pay it within a certain period; specific dates are usually not indicated. The document is drawn up in accordance with the requirements of the Civil Code of the Russian Federation and the law allows the resale of the existing document to other citizens.

So, in some cases, in order to avoid drawing up a DDU agreement, developers resort to the following scheme:

• issue a bill for an amount equal to the cost of the premises;
• when the payment deadline approaches, this document is replaced with an apartment.

And these bills of exchange are sold by contracting organizations to persons wishing to buy an apartment in a new building. But it’s worth knowing that buying an apartment through a bill of exchange can always take place. The bill itself does not indicate any information that the developer undertakes to provide an apartment in exchange for this document; it only talks about the amount of financial payment during a certain period, thus, by purchasing a bill from a contractor, you may be faced with the fact that the developer will only pay for the place of living space cash.

But if we exclude such an outcome, then purchasing an apartment on a bill of exchange is quite possible and will be accompanied by the following procedure:

• the developer will need to provide the bill itself from the buyer, papers confirming the fact of settlement with the contractor for this document;
• in the office the bill of exchange is exchanged for DDU;
• final signing of the ownership agreement for the new owner.

If we exclude the risk that the buyer will only receive money from the developer, then purchasing an apartment at a reduced price through a bill of exchange is quite realistic and safe, since all actions are carried out in the presence of all participants in the transaction.

Risks when buying an apartment from a contractor

If the contractor has already received apartments as payment for work performed in accordance with Federal Law 214 and sells them under an assignment agreement, the buyer’s risks are no greater than when purchasing an apartment from a developer.

Difficulties may arise in a situation when the developer and the contractor company enter into an investment agreement, which provides for payment for services not yet performed in apartments. The sale of such real estate is carried out at a price significantly lower than the market price , however, the obligations to the developer have not yet been fulfilled.

In most cases, the transaction takes place at the stage of building a house, therefore, the buyer does not acquire the apartment itself, but the right to receive it after the house is put into operation.

The main risks in this type of transaction include:

1. Failure by the contractor to fulfill his obligations leads to termination of the agreement with the developer. Consequently, the contractor will not receive the property, even though he has already sold it. In this case, even in court, the buyer will not be able to obtain the purchased property or return his money.
2. The contractor may perform less work or use less materials during construction and some apartments will not be transferred to him, since the debt to him will be less. There is a high probability of purchasing an apartment that does not exist.

You can avoid risks if:

• study the seller’s DDU;
• conclude a tripartite agreement;
• involve lawyers and specialists in concluding a transaction who will help take into account all the nuances and assess the risks;
• study the developer’s documentation;
• it is better to choose contractors who have been on the market for a long time and have a stable financial position (for this you will need to carefully study the documentation and the construction market).

Careful control is necessary before making a transaction and at the time of its execution.

We talked in detail about what other risks a buyer may face when purchasing an apartment in a new building here.

Assignment from the construction contractor

The method of purchasing an apartment by assignment is a completely legal option for a transaction using the DDU under 214-FZ. The degree of risk is reduced with proper verification of the rights of the person selling them and the entire situation at the construction site. The sale of apartments by a contractor before the commissioning of a new building is not prohibited by law, but it has a number of features:

• in legal essence it is an agreement of assignment, assignment of rights;
• according to the procedure, this is a transaction that requires approval or at least notification of the developer about the transfer of rights to the buyer;
• in terms of the degree of risk, the sale of an apartment by a construction contractor is at the same level as the standard DDU scheme, given that the contractor is a dependent person in relation to the developer;
• In terms of the economic component, this is a profitable solution if the buyer can afford to wait for the completion of construction to buy an apartment cheaper.

In order to imagine all the nuances and risks of such a decision, it is important to understand the chain of relationships between the persons on whom the construction of a new residential complex depends. These are the developer, the customer, contractors, investors.

Document verification rules

As mentioned above, the main secret of a successful deal is an agreement with a successful contractor . You should carefully check all possible information about it: reviews, complaints, facts of litigation, financial reports.

1. Request copies of documents that confirm that the contractor is officially registered. In addition, the DDU must be noted in Rosreestr.
2. Request copies of the contract if construction work has not yet been completed. In this document you can see what amount of work has already been done and what remains to be done by the contractor. This way the buyer can assess the risks.
3. Take a document confirming full payment of the cost of housing (if payment has already been made) and a document confirming payment for the contractor’s work with an apartment. An honest contractor has nothing to hide and will be able to provide documents.
4. Make sure that the agreement concluded with the contractor contains a clause regarding the developer’s consent to the transfer of real estate.

Our experts have prepared a lot of useful materials about the nuances of buying and selling apartments in the secondary and primary real estate markets. We invite you to learn about the rules for buying and selling secondary goods and how to protect yourself from risks in such transactions?

Tax deduction and other features

The big disadvantage of concluding such transactions is that it will most likely not be possible to make a tax deduction. When the real estate does not become the property of the contractor, he acts as a kind of intermediary. In this case, an offset scheme is used, which makes it impossible to return income taxes.

Expert opinion

Stanislav Ershov

Qualified lawyer. Ready to answer any of your questions! Ask them right now!

Write to an expert

If the future owner purchased housing by transfer, bypassing the developer, the latter does not have the right to issue documents to the final buyer about expenses for the tax authority. Nothing can be done about this, because the agreement was concluded with the contractor.

The only thing that builders can do is provide a certificate stating that the square meters have been fully paid for. But this paper is unlikely to satisfy government officials. Of course, the price of housing purchased from contractors is already lower, but you shouldn’t count on a pleasant bonus in the form of a tax deduction.

Problems may also arise for those who purchase real estate with a mortgage. To get a loan, you need to bring to the bank a complete package of papers for housing under construction. This will require the participation of a contracting company, which will act as an intermediary between the builders and the future home owner. As a rule, such transactions drag on for a long time, and contractors are not at all interested in this.

Purchasing methods

Some features when completing a transaction with a contractor are due to the fact that the buyer, purchasing real estate during the construction stage, does not receive the housing itself, but the right to claim it from the developer.

Ways to purchase apartments:

1. The assignment agreement (Article 388 of the Civil Code of the Russian Federation) must be drawn up in writing and contain an indication of the concluded transaction with the developer and a list of conditions that were determined under it.
   This agreement is signed until the house is put into operation and is valid unless prohibited by the main agreement.
2. An assignment of rights agreement can be concluded if, during the construction process, large contractors involved subcontractors with whom settlement is carried out under an assignment agreement. Subcontractors can sell an apartment by concluding an assignment of rights agreement. The disadvantage of such a transaction is the inability to control and track the “chain” of assignments and fulfillment of obligations.
3. The co-investment agreement is governed by Art. 4 Federal Law No. 39. According to this agreement, the contractor can simultaneously act as an investor who provides its services to the developer as an investment, and in return receives the right to an apartment. In such a situation, a co-investment agreement will be concluded with the future buyer, under which the rights to the apartment will be transferred to him to the extent that they belonged to the contractor.
4. A purchase and sale agreement is the safest way to complete a transaction and is concluded after the house is put into operation. In this case, the contractor has already registered ownership of the property, which will significantly increase its price, but the risks of this type of transaction are minimal.

Possible risks

The main advantage of buying a home from a contractor is the affordable price. If all goes well, the buyer can save up to 15% of the market value on such a transaction. But before committing it, it is necessary to assess the risks, which are as follows:

1. The construction company may go bankrupt before the project is completed. The buyer is left without an apartment, and terminating the agreement and returning the money is not an easy matter.
2. There is a possibility that the developer will file claims against the contractor and terminate the LDU. The result could be a lengthy legal battle. If the contractor is unable to compensate for losses, bankruptcy proceedings will follow. In addition, some contracting companies simply disappear in an unknown direction without waiting for a trial.
3. There is a risk that the documents will be out of order: a construction permit, papers for a land plot.

Another example is that a child-care center is not registered with Rosreestr, although this is required by law. If the agreement is not registered, double sales and other fraudulent schemes are possible.

How to buy - procedure

The transaction is carried out in several stages:

• search for current offers;
• checking the documents of the seller and the developer;
• viewing the facility and infrastructure nearby;
• execution of the contract;
• acceptance of the apartment using the transfer and acceptance certificate;
• registration of property rights in Rosreestr;
• moving and registration in the apartment.

The most important role in the purchase and sale procedure is played by a thorough check of documents.

We provided detailed instructions on purchasing housing in a new building using various methods in a separate article.

Required documents

For citizens who decide to purchase housing in this way, one passport will be enough. For purchases made with mortgage funds, a loan agreement will be required.

The Contractor provides notarized copies of:

• development plan;
• building permits;
• project declaration;
• documents for land, certificates;
• authorizing the sale and originals of constituent documents;
• service agreements;
• document giving the right to sell;
• assignment agreement.

Conclusion of an agreement and registration

The seller draws up a standard contract in advance, in triplicate, after which it is required to register it with Rosreestr. It is usually the buyer who contacts this organization.

To register, you need to write an application and pay a state fee . (For an individual - 2000 rubles, for a legal entity - 22,000 rubles). Registration is carried out within a period of no more than 1 month and after that the agreement comes into force.

How do the parties settle?

The conditions for transferring payment are specified in the contract and are determined by the parties individually. This can be payment in cash at the cash desk, installments, loan agreement, bank transfer, etc.

A few rules for a safe transaction

Although it is problematic to buy an apartment without any risk, you can reduce the likelihood of being among the victims. Buyers who enter into a transaction without an agency or the assistance of an experienced lawyer should be especially careful. There are several recommendations that will help you avoid losses and get the long-awaited housing:

1. It is necessary to obtain as much information as possible about the developer. It is worth finding out all the details regarding his activities: how long he has been working, how many objects he has built, how many lawsuits he has participated in. Of course, investors should also be wary of complaints against the developer, if there are any.
2. The contractor's reputation should also arouse keen interest. If possible, it is advisable to find its financial statements on the Internet. You definitely need to ask what explains the low price of real estate and why the contractor is in such a hurry to part with it. It is important for the buyer to understand whether the contractor is able to fulfill his obligations to the builders or whether this is not part of his plans.
3. Don’t be shy about studying each document thoroughly. This includes the initial contract, the assignment agreement, and the paperwork for the construction of the building. It is also necessary to pay attention to the contract agreement on the basis of which the contractor performs the work. From it you can find out how much of the services the contractor has already provided, and how much remains to be done.
4. It is necessary to request from the contracting company a certificate of the full cost of the residential premises and that payment for it was made (if any). Another useful document is a certificate confirming the offset of the cost of housing with acts of work performed by the contractor. A conscientious counterparty will not refuse to provide such documentation. This is especially important for the buyer: scam contractors often use schemes that allow them to transfer the debt to the final buyer.

Providing information from the Unified State Register of Legal Entities/Unified State Register of Individual Entrepreneurs - egrul.nalog.ru

Tax check

Check the contractor's debts - fssprus.ru

Federal Bailiff Service

Check for bankruptcy and arbitration processes - kad.arbitr.ru

Arbitration processes

Search by court cases (select the district court where the company is building real estate) - mos-gorsud.ru

Moscow court, search for court cases

In addition, you need to remember that both parties participate in drawing up the contract. If the buyer is confused by some of his points, he has the right to insist on changes.

Before you buy a finished or unfinished home from a contractor, you should carefully study all the nuances. There are many scams in the real estate market, and inattention can be very costly.

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Will it be possible to get a tax refund?

When purchasing an apartment, in a situation where the contractor has not recorded the property as personal ownership, he is an intermediary and an agreement is concluded with the construction company. This scheme is a credit scheme, but its disadvantage is that it is impossible to return personal income tax. The construction company cannot issue a document confirming the buyer’s expenses for the Federal Tax Service , because these documents were drawn up with the contractor.

When purchasing an apartment under an agreement on the assignment of rights of claim, the right to receive a property deduction arises from the moment the apartment acceptance certificate is signed. In this case, a copy of the equity participation agreement on the basis of which the rights of claim were assigned is provided to the tax authority.

This article discussed ways to purchase housing from a contractor, the main nuances of this type of transaction, as well as information on minimizing risks in the purchase and sale process. Careful study of all the details of the transaction and documents will allow you to buy housing cheaper than market value and not fall into the hands of scammers.

Customer - developer - contractor

We have already written about the difference between a developer and a construction developer. The first organizes all processes and has the right to accept funds from shareholders into their accounts - in fact and legally, the developer is the seller of the apartments (the rights to their subsequent registration as property). He is also responsible to the shareholders (buyers) for failure to meet deadlines, violation of the procedure for handing over the object, and the impossibility of completing it.

We move further along the chain - we understand the relationship between the customer and the contractor. These are the main links in the construction process, on which everything depends, from the timing of the project’s delivery to the final quality of the new building and subsequent relationships with buyers.

Customer for the construction of a new residential complex

The construction customer is a subject of civil law, a concept enshrined in the Civil and Urban Planning Code of the Russian Federation. The customer’s function is to entrust the execution of work to a specific contractor, observing all formalities and standards. His responsibilities include creating conditions for completing tasks, including the need to attract licensed firms, and searching for performers for survey and design work.

Customer and developer rolled into one

This role can be played by the developer, who by definition is obliged to take all necessary measures to organize construction. The functions and responsibilities of the customer do not imply the obligation to own the land for construction, but this is the responsibility of the developer. As well as the need to obtain a construction permit, draw up other documents, and attract a contractor.

Municipal customer

The customer can also be local authorities - for example, in the complex development of large territories. The law does not prohibit a developer from being a customer, but this is inconvenient from the point of view of the process of transfer of powers.

Developer and guarantor

There is another interesting detail - the developer who actually organizes the construction may not have his own funds, and then the investor, developer or customer can issue him a guarantee for a certain amount. From the point of view of the law, this is transparent, since the contract stipulates the responsibility of the guarantor to the shareholders.

The deal and its nuances

There are several ways to buy an apartment from a contractor.

There are important differences between them:

1. Assignment agreement. In accordance with such a document, the apartment does not become the property of the buyer. The future tenant receives only the rights to receive it. Such a document must contain a reference to the transaction with the developer and all the conditions stipulated by it. An assignment agreement is only possible until construction work is completed and the house is put into operation.
2. Assignment of rights. This type of transaction is one of the riskiest, as it contains a whole chain of documents that is almost impossible to track. Its essence lies in the fact that the contractor of a large construction project, in need of help, hires subcontractors, transferring apartments to them as compensation under an assignment agreement. Thus, the buyer is already completing the procedure of purchasing an apartment from the assignment contractor. The main problem is that any of the links in this chain can go bankrupt, and the buyer will be left with nothing.
3. Contract of sale. This is the safest option for purchasing an apartment from a contractor, since it can be concluded only after completion of construction work. That is, the apartments are ready, and all the work has been completed by the contractor. However, the cost of this type of housing is much higher.

Nuances

Even if you have checked all the documents, studied information about the contractor, etc., you should not let your guard down throughout the entire home buying process.

These tips will protect you as much as possible from negative consequences:

1. Do not be afraid to contact professional lawyers, especially if you are not confident in yourself. It's better to be safe than sorry.
2. The surest way to make sure of the reliability of the contractor is to come to the main office of the developer and find out all the necessary information about him first-hand.
3. Before the transaction, go to Rosreestr and make sure that there are no restrictions or encumbrances imposed on the residential complex or house in which you want to purchase an apartment. The presence of restrictions will significantly complicate the process of concluding a deal.
4. Be sure to obtain a certificate from the developer company confirming full payment of the cost to protect yourself from a possible transfer of debts. This is a common way for buyers to be deceived by dishonest contractors.
5. When concluding an agreement with a contractor, make sure that the document contains a clause indicating the developer’s consent to the transfer of square meters.

What does a contractor do?

A contractor is a company hired by the head Developer to perform a certain type of work. Contractors can be involved in the installation of communication systems, landscaping of local areas, glazing, etc.

Sometimes the Developer pays contractors by square meters. On the one hand, this may be a normal scheme of mutual settlements. For example, the Developer agrees with the contractor that he will pay him partly with money, and partly with an apartment (or several apartments).

On the other hand, calculation by square meters may indicate an unstable economic and financial situation of the parent Developer. Why does he pay the companies he hires in this way? Maybe the Developer simply doesn't have enough money? This situation is extremely undesirable for the Buyer, because in this case problems may arise for him: the construction will not be completed due to lack of funds, something in the house will be unfinished or done poorly, etc.

Expert opinion

Semyon Frolov

Lawyer. 7 years of experience. Specialization: family, inheritance, housing law.

For the contractor, real estate does not represent any benefit. The contractor needs real money - to pay salaries to employees, to compensate for his expenses, to rent an office, etc. Therefore, contractors begin to sell apartments, and often do this at reduced prices. Typically, hired companies sell real estate 10-15% cheaper than the main developer.

There are other types of contractors. For example, a company may not carry out any construction work, but simply undertake to sell a certain number of apartments. If the Developer cannot independently sell residential premises, he sells some part of them to an interested contractor. And he already begins to engage in sales - organizes advertising campaigns, attracts clients, etc.