- 13.7.2018
- 96907
Any transaction with an apartment in which a minor has a share requires approval from the guardianship and trusteeship authorities. And the employees of this department take the issue of protecting children’s interests so seriously that they are sometimes ready to go beyond the powers assigned to them and present unlawful demands to parents.
Parents do not have the right to dispose of an apartment of which a child is a co-owner, without permission from the guardianship and trusteeship authorities. These restrictions are provided for by the Civil Code of the Russian Federation (clause 2 of article 37) and the law “On guardianship and trusteeship” (part 1 of article 21). Such housing cannot be used as collateral for a loan, changed, sold or rented without appropriate permission. Controversial situations when obtaining permission from guardianship authorities arise so often that they have managed to be generalized and classified. An expert from the regional Ministry of Social Policy and real estate market specialists talk about when parents are wrong and when guardianship workers are wrong.
The requirement to provide the child with a similar share in the purchased housing. Share or money?
Let's say a family decides to improve their living conditions - to move from a one-room apartment to an apartment of the same size in a new building. In practice, parents are faced with the requirement to provide their child with a share of a similar size in the purchased apartment. It turns out that if a child owned 50% of the apartment in the barracks, then in the new apartment he should become the owner of half of the living space. However, experts are confident that such a requirement from the guardianship authorities runs counter to current legislation.
Valentina Kolomeichuk
Deputy Head of the Department for Organization and Control of Activities for Guardianship and Trusteeship of the Ministry of Social Policy of the Sverdlovsk Region
According to the law, guardianship and trusteeship authorities issue preliminary permission to carry out a transaction that does not entail a reduction in the value of the minor’s share. This means that the legal representative must give the child a share of property commensurate with the value, and not with the size of the share of the alienated property. The position of the guardianship authorities is incorrect when they demand that the child be given a similar or larger share, because the value of the property depends on the cost per square meter. And the size of the share can be either increased or decreased.
Thus, it turns out that the size of the share is correctly measured in monetary terms, which means that it depends on the cost of the apartment being sold. For example, if a child owned 50% of an apartment in a barracks, which costs 1 million rubles, then his share is equal to 500 thousand rubles. And when buying a one-room apartment in a new building worth 2.5 million rubles. Parents have the right to assign a 20% share to their child.
Coordination of transactions with the property of minors, or Cannibalism of the guardianship authorities // Nepyatnichnoe
I have already written about the difficulties faced by anyone who has used maternal capital to purchase housing and decided to calculate the legal risks of the subsequent sale of such housing without first allocating shares. More about this here:
I will briefly outline the essence of my “case”: a family bought a one-room apartment with a mortgage, and later decided to invest capital in it. After some time, the family buys a three-room apartment for growth, also with a mortgage, to pay off which they want to sell the one-room apartment. But in order to sell it, you must first allocate shares to your spouse and children as part of the fulfillment of your maternal capital obligations. This is where it all begins...
After analyzing the situation, I decided to preliminarily allocate shares (interestingly, by law the owner is obliged to do this not only in relation to the spouse and children who appeared at the time of using the maternity capital, but also in relation to those children who were born later, so in any case In this case, notaries interpret the law; in addition, not all notaries agree to certify a transaction for the allocation of shares before the encumbrance is removed, even despite the fact that the pledge holder himself, i.e. the bank, has nothing against it). But in this post I want to talk about the difficulties that I encountered at the next stage.
This is where the guardianship authorities come to the fore. I won’t be able to alienate the children’s shares without their consent. And with this agreement, not everything is simple.
Having previously undergone consultation with the guardianship authorities at our place of residence, we breathed more or less freely: it turns out that until recently we calmly agreed on the alienation of the children’s shares, subject to the opening of a special trust account in favor of the children and the placement of funds in it in an amount not less than the size of the maternity capital. However, just today it was announced to us that this scheme no longer works, and those who used it are denied approval.
The scheme with the allocation of shares instead of those sold in a three-room apartment purchased “to expand the area” will also not receive support in the OOiP due to the prohibition of compensated transactions between children and parents under Art. 37 of the Civil Code (the apartment has already been purchased using a mortgage, de jure it is owned by the parents). I really don’t understand why I can’t, in exchange for the shares being sold, give the children similar shares in a larger apartment, but oh well. As a result, the guardianship authorities offered us to purchase a new apartment for the children of no less area, the cost of the shares in which would be no less than the cost of the children’s shares in the existing (sold by us) apartment.
At the same time, the guardianship authorities cannot provide clear criteria for a transaction for the purchase of new housing for children to replace the alienated one, compliance with which is ensured by the approval of the sale of children's shares in the one-room apartment alienated by us. The above two points were only voiced: the living space and the cost of the shares are no less than in the current apartment.
It is clear that in Moscow it is unrealistic to purchase an apartment of the same area for 500 thousand (the cost of maternal capital). However, we did not plan to allocate more for the purchase of new housing for the children - we need to repay the mortgage loan in the new apartment, purchased “for growth,” for which we are selling the previous one. Regarding the purchase of housing for children in other regions, the guardianship authorities do not guarantee approval and hint that refusal options are quite possible.
As a result, we have an absurd situation: the state seems to be vigilant that the housing rights of children are not violated, while the literal interpretation of existing norms leads the guardianship authorities into a stupor when it comes to approving the sale of housing of a smaller area in order to provide children with housing in an apartment of a larger area, if it is already in parents' property. As a result, maternity capital, which seems to be designed to solve the housing problems of families, after fulfilling obligations under it, becomes a stumbling block in solving the same housing problems when it is necessary to increase the living space and use the money from the sale of the original apartment for this. I am sure that there are a lot of such situations in Russia, and it seems that our public authorities cannot offer an adequate answer for conscientious parents.
PS I have not yet studied the problem in depth legally, perhaps the guardianship authorities are wrong in some way, however, paragraph 3 of Art. 37 of the Civil Code and the prohibition of paid transactions between parents and children have not been canceled. Since it is important for buyers to complete the transaction no later than the beginning of June, we are not considering options with a subsequent appeal in court and are looking for a way to 100% approve the OO&P transaction. There seems to be no uniform regulation for approving such transactions - apparently, here the municipalities are “who knows what”. At least, this is the impression one gets when first approaching the question.
How to transfer a car to a child
The transfer of the vehicle can only be carried out if the appropriate documents are drawn up:
- when making a gift, a gift agreement is formed;
- when a car is inherited, a property will certainly be formed;
- If the purchase of a car is registered in the name of a minor, then a purchase and sale agreement is drawn up.
If the child is under 14 years old, then all documents are signed by the parents. If he is over 14 years old, he can enter into contracts himself, but permission from his parents is first required.
Important! If the vehicle is inherited, then the child can refuse it only after he receives permission for this process from the guardianship authorities, but this is given only when receiving such property does not benefit the minor.
How to sell a car to a minor
If a minor owns a car, its sale is permitted only with the permission of the guardianship authorities. This applies to both orphans and children from intact families.
The child's official representatives cannot, without this permission, sell or perform other actions with the car that lead to a change in ownership. This is indicated in Art. 28 and 37 Civil Code.
Article 37. Disposal of the property of a ward
1. The guardian or trustee manages the income of the ward, including income due to the ward from the management of his property, with the exception of income that the ward has the right to dispose of independently, exclusively in the interests of the ward and with the prior permission of the guardianship and trusteeship authority. Amounts of alimony, pensions, benefits, compensation for harm to health and harm incurred in the event of the death of the breadwinner, as well as other funds paid for the maintenance of the ward, with the exception of income that the ward has the right to dispose of independently, are subject to credit to a separate nominal account opened by the guardian or trustee in in accordance with Chapter 45 of this Code, and are spent by the guardian or trustee without the prior permission of the guardianship and trusteeship authority. The guardian or trustee provides a report on the expenditure of amounts credited to a separate nominal account in the manner established by the Federal Law “On Guardianship and Trusteeship”.
2. The guardian does not have the right, without the prior permission of the guardianship and trusteeship body, to carry out, and the trustee does not have the right to consent to, transactions involving the alienation, including the exchange or donation of the ward’s property, leasing it (lease), for free use or as a pledge, transactions , entailing the renunciation of the rights belonging to the ward, the division of his property or the allocation of shares from it, as well as any other actions entailing a decrease in the property of the ward.
The procedure for managing the property of a ward is determined by the Federal Law “On Guardianship and Trusteeship”.
3. A guardian, trustee, their spouses and close relatives do not have the right to enter into transactions with the ward, with the exception of transferring property to the ward as a gift or for free use, as well as to represent the ward when concluding transactions or conducting legal cases between the ward and the spouse of the guardian or trustee and their close relatives.
4. The guardian disposes of the property of a citizen declared incompetent, based on the opinion of the ward, and if it is impossible to establish his opinion, taking into account information about his preferences received from the parents of such a citizen, his previous guardians, other persons who provided services to such a citizen and conscientiously fulfilled their responsibilities.
Important! If permission for the sale is given from the guardianship authorities, then a condition is set on the basis of which all funds received from the sale of the car must be transferred to the personal account of the minor, and he will be able to use them for any purposes after he reaches the age of majority.
For example, the car went to the parents and the child in equal shares, so if it is sold, then 1/3 of the proceeds are credited to the child’s account. Parents cannot manage these funds.
If a minor owns a share in a car, then other co-owners can buy it, but even this transaction requires approval from the guardianship authorities. To determine the amount that needs to be transferred to his account, the value of the car is assessed.
How is a car registered to a child?
The process of registering a vehicle for a child at the traffic police is a simple step. Difficulties may arise if there are several owners. Registration with the traffic police is carried out for one person or company.
If the shares belong to several people, then when selling, each of them needs to transfer the required amount of money to the account.
For example, a car was inherited by a mother and child. It will not be possible to register a car for two people, since this will be refused by the traffic police department.
When conducting transactions with a car registered in the name of a child, you must obtain permission from the Guardianship Authorities.
There are two ways to solve the problem:
- the share of a minor is sold to the mother, for which she must transfer the required amount of money to his account;
- the mother gives her share to the child, so the car is completely registered in the name of the minor, but after the sale of the car, the entire amount will be transferred to the child’s account, so it will not be possible to use it to buy a new car or for other purposes.
The process of registering a car for a minor is carried out as standard:
- a compulsory motor liability insurance policy is issued, and this document certainly indicates that the owner is a child, but the driver will be another person who has a license;
- documents for the car are prepared and the state duty is paid;
- all documents are transferred to the traffic police department.
Important! The registration is usually carried out by the person who will use the car, and a corresponding power of attorney is certainly drawn up to represent the interests of the child.
What are the advantages of registering a car for a minor?
Registering a car for minors has many significant disadvantages, but it is not without certain advantages.
These include the fact that if a child is not yet 16 years old, then administrative fines are not assessed against him, so he will not have to pay fines if violations are recorded by cameras.
Deputies want to ban registration of a car in the name of a child. Photo: cdn01.ru
Parents will be forced to pay transport tax in any case.
Also, if the driver gets into an accident in which he is the culprit, and in this case damage is caused to other people’s property or the health of citizens, then he will have to compensate for the damage caused.
Thus, registering a car in the name of minor children has a limited number of advantages, but there are quite a lot of disadvantages, so usually this procedure is only carried out forcedly when the car is inherited or donated by other people.
In this case, parents must properly register the car, and also take into account the nuances of the fact that its owner is a minor.
Why are deputies against registering a car for a child? Watch the video:
Is it possible to profitably sell a car that belongs to a child?
Since the car belongs to a minor, there are difficulties with selling it.
To do this, you will have to obtain permission from the guardianship authorities, and the funds cannot be used for any purposes until the child turns 18 years old.
Important! There are no loopholes or unusual ways of selling a car so that the money can be left to the parents, so you will have to follow the terms of the law, otherwise the parents may be held liable.
In any case, you will have to obtain permission from the guardianship authorities, and it is issued quite rarely, and also with different conditions.
Therefore, it is impossible to profitably sell a car that, according to documents, belongs to a child.
Is it legal to register a car for a child?
In Art. 26 of the Civil Code states that a minor citizen whose age exceeds 14 years can independently act as a participant in any transaction, therefore contracts can be concluded, but only after receiving permission from the parents.
Article 26. Legal capacity of minors aged fourteen to eighteen years
1. Minors aged fourteen to eighteen years old make transactions, with the exception of those mentioned in paragraph 2 of this article, with the written consent of their legal representatives - parents, adoptive parents or guardian.
A transaction made by such a minor is also valid with its subsequent written approval by his parents, adoptive parents or guardian.
2. Minors aged fourteen to eighteen years have the right, independently, without the consent of parents, adoptive parents and guardians:
1) manage your earnings, scholarships and other income;
2) exercise the rights of the author of a work of science, literature or art, invention or other result of his intellectual activity protected by law;
3) in accordance with the law, make deposits in credit organizations and manage them;
4) make small household transactions and other transactions provided for in paragraph 2 of Article 28 of this Code.
Upon reaching the age of sixteen, minors are also eligible to be members of cooperatives in accordance with cooperative laws.
3. Minors aged fourteen to eighteen years independently bear property liability for transactions made by them in accordance with paragraphs 1 and 2 of this article. For the harm caused by them, such minors are liable in accordance with this Code.
4. If there are sufficient grounds, the court, at the request of parents, adoptive parents or a trustee or a guardianship and trusteeship body, may limit or deprive a minor aged fourteen to eighteen years of the right to independently dispose of his earnings, scholarship or other income, except for cases where such a minor has acquired full legal capacity in accordance with paragraph 2 of Article 21 or Article 27 of this Code.
Buying a car for minors and registering it, step-by-step instructions in this video:
Cars are usually registered for children in several situations:
- the car becomes the property of a minor by inheritance;
- the car is bought and immediately registered in his name;
- the car is donated by relatives.
Important! In any of the above situations, official documents must be drawn up, which include a contract of donation, purchase and sale, or inheritance agreement.
In Art. 28 of the Civil Code states that if a child has not yet turned 14, then all transactions are made for him by his parents.
Article 28. Legal capacity of minors
1. For minors under fourteen years of age (minors), transactions, with the exception of those specified in paragraph 2 of this article, can only be made on their behalf by their parents, adoptive parents or guardians.
The rules provided for in paragraphs 2 and 3 of Article 37 of this Code apply to transactions of legal representatives of a minor with his property.
2. Minors aged six to fourteen years have the right to independently commit:
1) small household transactions;
2) transactions aimed at obtaining benefits free of charge, which do not require notarization or state registration;
3) transactions for the disposal of funds provided by a legal representative or with the consent of the latter by a third party for a specific purpose or for free disposal.
3. Property liability for transactions of a minor, including transactions made by him independently, shall be borne by his parents, adoptive parents or guardians, unless they prove that the obligation was violated through no fault of theirs. These persons, in accordance with the law, are also responsible for damage caused by minors.
