Buying an apartment from a legal entity: buyer’s risks

Purchasing an apartment from a legal entity is a more complex procedure compared to a transaction between individuals. This is explained by the relatively large list of documents and nuances that are present during such an operation. It can be difficult for an individual who does not have special knowledge to understand all the intricacies and not to miss intentional or unintentional actions on the part of a legal entity, which may lead to the transaction being declared invalid.

In this article we will analyze all the features, pitfalls and risks of a buyer who has decided to purchase an apartment and a legal entity.

Features of the sale of real estate by a legal entity to an individual

The legislation provides for a special procedure for the sale of property of joint-stock companies. There are a number of requirements for the sale of property of a legal entity if the transaction is classified as large (the cost of the object being sold is more than 25% of the total book value of all property of the enterprise). In addition, the charter of a joint stock company may include all operations related to the alienation or acquisition of real estate as major transactions. The execution of such transactions by the general director must be agreed upon with the rest of the company's participants. Such approval takes place at a meeting of shareholders or at the board of directors. The buyer must be presented with the relevant document (minutes of the meeting or meeting).

If the object being sold does not belong to the large category, then this must also be documented.

Documents of a legal entity required for the transaction

One of the main actions of the buyer, which will help to avoid fraud, is to carefully study the documents of the legal entity necessary for the purchase and sale transaction. Therefore, it is worth requesting copies of documents from the legal entity:

Extract from the Unified State Register for the object. From the document you can obtain information about who has registered ownership, as well as information about the registration of rights, the presence of encumbrances and legal proceedings, find out the cadastral number, area and address.
Extract from the Unified State Register on the contents of title documents.
The statutory documents of the legal entity that are current at the time of the transaction. In them, it is necessary to familiarize yourself with the presence of powers of the person who is authorized to make a transaction and sign the relevant documents.
A document that confirms the powers of the trustee (minutes, order for the appointment of a director, power of attorney).
Documents confirming the approval of the purchase and sale by the owner’s bodies (minutes of the meeting of participants, board of directors, etc.).
Documents that confirm ownership (purchase and sale, court decision, etc.).
Certificate of registration of ownership.
Cadastral passport.
Extract from the Unified State Register of Legal Entities for the company of the previous owner.
Documents that confirm the authority of the person acting on behalf of the previous owner.
Approval of a transaction for the sale of an object by the previous owner.

This list is basic. Depending on the specific situation, other papers may be needed. Any discrepancy in the documents is a valid reason for refusing the transaction. It is very difficult for an individual who does not have special training to understand them. Therefore, it is worth contacting specialists who deal with real estate (professional realtor, lawyer, notary). It would also be a good idea to show the documents to another lawyer to exclude fraud on the part of the first one , as well as to exclude his mistake due to oversight.
Of course, you will have to pay for the services of specialists, but these costs are not comparable to the losses that the buyer may incur if the transaction is declared illegal.

Expenses

The costs of such a transaction are identical to those that arise when purchasing an apartment from an individual:

Housing price: negotiable or based on an assessment report.
Payment for notary services for certification of the contract: from 2 thousand rubles and above, depending on the price of the apartment, region of residence and many other factors.
Notarized consent of the spouse: 1-2 thousand rubles.
Registration of ownership of an apartment: 2 thousand rubles per owner.

Common scams

Most often, situations arise when an authorized person provides a forged permit from the governing body of a legal entity to sell a property. It could be:

minutes of the founders' meeting;
written consent of the founders of the organization, drawn up in any form.

It is not uncommon for these documents to be falsified in order to save time or personal enrichment. Due to such actions, the transaction may be declared invalid by the court, for example, in the case where one or more founders filed a lawsuit due to their disagreement with the sale of the property. The decision of such a court usually orders the return of funds to the buyer. However, in practice, such a procedure may be delayed for a very long time or not performed at all.

Particularly noteworthy is a power of attorney , which confirms the authority of the person signing the agreement. It must be drawn up either for a specific transaction, indicating its parameters, or a general one, which involves the possibility of alienation of the assets of the enterprise. A power of attorney can be one-time (for a specific transaction with an indication of its parameters) or general (implies a wide range of powers, including the alienation of enterprise assets).

○ Legislative regulation of the procedure.

The real estate purchase and sale agreement is governed by:

Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation).
Family Code of the Russian Federation (hereinafter referred to as the RF IC).
Housing Code of the Russian Federation (hereinafter referred to as the Housing Code of the Russian Federation).
Federal Law “On participation in shared construction...” dated December 30, 2004 No. 214-FZ (hereinafter No. 214-FZ).
Federal Law “On State Registration...” dated July 13, 2015 No. 218-FZ (hereinafter No. 218-FZ).

The main feature of transactions involving a legal entity is the recognition of a real estate transaction as a major one. Therefore, it is necessary to take into account another legislative act regulating the conclusion of such agreements - the Federal Law “On Companies...” dated 02/08/1998 No. 14-FZ (hereinafter No. 14-FZ).

“A major transaction is a transaction (several interrelated transactions) that goes beyond the scope of ordinary business activities and at the same time:
related to the acquisition, alienation or possibility of alienation by the company directly or indirectly of property (including a loan, credit, pledge, guarantee, acquisition of such a number of shares (other issue-grade securities convertible into shares) of a public company, as a result of which the company has an obligation to send mandatory offer in accordance with Chapter XI.1 of the Federal Law of December 26, 1995 N 208-FZ “On Joint-Stock Companies”), the price or book value of which is 25 percent or more of the book value of the company’s assets, determined according to its accounting (financial) data reporting as of the last reporting date;
providing for the obligation of the company to transfer property for temporary possession and (or) use or to provide a third party with the right to use the result of intellectual activity or a means of individualization under the terms of a license, if their book value is 25 percent or more of the book value of the company’s assets, determined according to its accounting (financial) ) reporting as of the last reporting date (clause 1 of Article 46 No. 14-FZ).”

How to reduce risks?

In addition to carefully checking the documents listed above, the buyer should try to get to the meeting of participants (directors), at which the decision to sell the property will be made.

If a legal entity does not provide an extract from the Unified State Register or promises to present it only for a transaction, you can obtain it yourself by making a corresponding request to Rossreestr. The presence of information in the extract about frequent changes of ownership should alert you. It must be remembered that if a legal entity became the owner of real estate less than three years ago, then this transaction can also be challenged in court.

No later than 2-3 days before signing the purchase and sale agreement, it is worth ordering an extract from the house register (if we are talking about the secondary market). A “wake-up call” is the registration of a person in an apartment after agreements on the sale have been reached.

Features of buying an apartment at the stage of building a house

The main difference between such a transaction is the fact that the object of the contract is not the apartment itself, but the ownership rights to it. Typically, such a transaction is formalized in the form of an equity participation agreement. In addition to the risk of document fraud, there is a risk that the house will never be built and put into operation.

The package of documents that must be requested from a legal entity, first of all, includes:

Developer's license.
Construction permit. The company may grant permission for another facility, so this must be carefully reviewed.
Project documentation. It contains information about the purpose of the project, the timing of its implementation by stages (it is worth paying attention to the correspondence of the timing in the documentation and the actual stage of construction), a list of contractors for the main construction and installation work, and data on sources of financing.
Title documents for the land plot.
Conclusion of the State Construction Expertise.

One of the most common risks is a problem with the right to a land plot. The land must be either owned by the developer or under long-term lease.

Particular attention should be paid to the presence of clauses in the DDU on the possibility of the developer to unilaterally raise the price of the apartment, the application of large penalties for termination of the contract at the initiative of the shareholder (which often happens if the pace of construction significantly lags behind the planned deadlines), as well as unilateral termination of the contract at the initiative of the construction company.

Also, after concluding an agreement, the company may demand additional payment for a variety of works: connecting individual communications, landscaping the adjacent territory, equipping a parking lot, etc.

The above list of risks when purchasing an apartment in a building during the construction phase is far from exhaustive. Therefore, such a deal can be concluded only after preliminary preparation and verification of all information with a lawyer.

Also, the apartment can be sold on the basis of an agreement for the assignment of rights of claim. The significant difference is that it is concluded not with the developer, but with a legal entity that previously purchased this apartment under the DDU or also under an assignment agreement (so rights can be transferred an infinite number of times). Additional risks are that along with the rights, the buyer also acquires his responsibilities. If at the time of the transaction the seller has a significant debt on contributions to the developer, then the new copyright holder is obliged to pay it. Therefore, before signing the contract, it is necessary to check the payment of all payments.

Taxes

Expert opinion

Semyon Frolov

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

The purchase of an apartment is not grounds for payment of VAT by the legal entity. persons, since such an operation does not provide for tax profit (Article 149 of the Tax Code of the Russian Federation). At the same time, the taxpayer can independently waive the right to be exempt from VAT (clause 5 of Article 149 of the Tax Code of the Russian Federation). To do this, at the territorial branch of the Federal Tax Service, an authorized representative of the company writes a corresponding application, but no later than the 1st day of the period from which it became necessary to refuse the exemption of VAT payments. This means that the acquisition of living space by an enterprise will be taxed only if members of the company wish to pay VAT.

If property is purchased for resale, the company must pay income tax. Under the general taxation system (OSNO), income tax and VAT are charged on revenue. The amount is based on the difference between the purchase and sale prices of the property. Under the simplified tax system, the taxable base is considered to be revenue (taxed at a rate of 6%) or the difference between income and expenses (at a rate of 15% or in the amount established in the region of the transaction).

Living space is taxed if it is not on the company’s balance sheet as property classified as fixed assets (Article 378.2 of the Tax Code of the Russian Federation). This is most often encountered by legal entities. persons engaged in transactions with residential real estate. Property is treated like a product, not a fixed asset, and is subject to taxation, which applies to the sale of products.

An additional expense item is the payment of enterprise property tax. This is a regional fee that is charged to all legal entities. persons registered in the country (Article 374 of the Tax Code of the Russian Federation). The amount of tax collection is no more than 2% of the cadastral value of the premises on the balance sheet of the enterprise.

Property tax applies to the purchase of real estate by enterprises using the general tax regime. The final rate is set at the municipal level.

It is advisable to convert the purchased residential space into commercial space, especially if the company owns other similar properties. Because It is possible to take advantage of a benefit or exemption from real estate tax only for one object of a certain type. In addition, an apartment removed from the housing stock can be rented out at a minimum price. This way, the amount of tax payments will decrease several times.

The transfer of property from residential to non-residential is carried out within the framework of the current legislation (clause 3 of Article 288 of the Civil Code of the Russian Federation). Living space is considered the main asset if it was purchased for the needs of the enterprise.

The purchase of an apartment by a legal entity is not very different from a similar transaction that is carried out between individuals. persons. But, as with any property transaction, it has its own nuances, advantages and disadvantages. Therefore, it is advisable to carry out such transactions with legal support. You can also ask our lawyers your questions. What are the features of buying and selling an apartment in your particular case? How to properly register property so as not to violate tax laws and avoid paying extra taxes? Is it worth removing the apartment from the housing stock? You will receive complete answers to these and other questions.

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Author of the article

Maxim Privalov

Lawyer. 2 years of experience. I specialize in civil disputes in the field of housing and family law.

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Features of purchasing with a mortgage

The easiest way to purchase an apartment with a mortgage from a legal entity is to purchase housing from a development company that has a partnership with the bank. Such companies sell apartments both in already built buildings and in those at different stages of construction. The undoubted advantage of such a transaction is that the risks of fraud on the part of the seller are minimized, since the bank conducts a thorough check of them.

It is almost impossible to buy an apartment in an unfinished building from a legal entity that does not have a partnership with a bank. A transaction on the secondary market is possible, but documents will most likely take longer to check than when purchasing from an individual.

Purchasing an apartment from a legal entity requires more care and preparation than purchasing it from an individual. This is explained by the large presence of various nuances and subtleties in the documents. Therefore, it is better to prepare for such a transaction with a specialist.

Hidden danger

A purchase may be considered invalid if this is recognized in court, if the seller was incapacitated at the time of the transaction and can prove this fact in court. This is a fairly high risk due to the fact that the buyer has a high chance of being left without an apartment and without money, since in this case there will be no one to return the funds to him. You also need to be careful when concluding a transaction so as not to fall into the hands of experienced scammers and work out in detail all possible nuances.