Regulatory regulation
It is impossible to exchange an apartment by concluding just one contract: you need to draw up both a purchase and sale transaction for an old, large apartment, and a purchase and sale transaction for new ones. Therefore, it is necessary to know the specifics of concluding such agreements described in the Civil Code.
- According to Article 549, the seller of real estate undertakes to transfer ownership of the property to the buyer.
- For a contract to have legal force and be valid, it must be concluded in writing, and all parties sign the document.
- The purchase and sale agreement is subject to mandatory state registration for the transfer of ownership of the real estate from the seller to the buyer.
- If one of the parties to the contract evades state registration, the other party has the right to go to court. The culprit party is obliged to compensate for losses incurred due to the delay in registration.
Subject of the agreement
The document must contain detailed information that allows you to specifically identify the property that is to be transferred from the seller to the buyer. If this data is missing, the contract is considered unconcluded and invalid.
Contract price
- The price of property transferred from the seller to the buyer must be indicated in the agreement of the parties. In the absence of the specified value of the property, the contract will be considered invalid.
- The exchange of an apartment for two involves the transfer of real estate from sellers and their acceptance by buyers. This occurs after signing the transfer deed or other transfer document.
- Avoidance of signing the transfer deed by one of the parties is considered a waiver of the obligation to transfer/accept the property.
- If the seller transfers to the buyer real estate that does not comply with the contractual conditions, the buyer has the right to demand that the property be replaced with one that complies with the contract.
- An essential condition of the contract for the sale of a real estate property: if there are persons living in it who retain the right to use the residential premises after its acquisition, the document must list these persons and their rights.
Taxation procedure
To calculate tax during the apartment exchange procedure, the same rules apply as for purchase and sale.
If real estate is owned for less than 3 years, the property is subject to taxation in the amount of 13% of the amount exceeding 1 million rubles.
Example:
The cost of purchasing the apartment was 2,500,000, and the exchange took place in the amount of 4,000,000 rubles. The property has been owned for 2 years, which means the interest tax rate is 13%.
Tax = (4000000 – 2500000): 100 X13 = 195,000 rubles.
Sharing an apartment with a minor child
Compliance with the interests of minor children is carefully monitored by the guardianship and trusteeship authorities. What to do if the child is the owner/one of the owners of the apartment being exchanged (for sale)? If a minor owns a share in an apartment, it is necessary to take into account during the exchange that he must become the owner of real estate no worse than the previous one: that is, of appropriate quality, footage, etc.
The transaction in this case is made by the legal representative of the minor on his behalf, but only after receiving the consent of the guardianship authorities. Consent cannot be obtained if the child’s property decreases after the transaction. Officials of the guardianship authorities check the legality of the transaction: establish its compliance with the interests of the minor, check whether the child’s living conditions will deteriorate, or whether the share of his property will decrease.
If one of the owners is against
When conducting a transaction, it is important to obtain the consent of all co-owners of the property. If the child is under 14 years old and does not have a passport, consent is given by the parents. After overcoming the age of 14, the child gives consent independently, but with the approval of the parents. If there is no agreement, the initiator of the exchange can only dispose of his share.
If one of the co-owners wishes to exchange the property, he must notify the other co-owners about this. If there is no agreement, he sends written notice of the upcoming transaction and offers to buy out the share for a certain amount. If the share is not redeemed within 30 days or he receives a written refusal, you can look for an exchange option. In this case, he can exchange the share for the same in another apartment, an apartment with an additional payment, a house or other real estate.
If we are talking about municipal housing, you must submit an application to the municipality, which will make a decision based on the application. In order not to be refused, it is advisable to provide an exchange option in advance.
Exchange of apartment during divorce and with parents
According to the provisions of the Family Code, all property acquired jointly by spouses during marriage, including real estate, is subject to division “in half”, unless otherwise provided by the marriage contract. It turns out that after the end of the marriage, the spouses become owners of shares in the apartment. The sale of a share of real estate is not officially prohibited and is theoretically possible. But in practice, doing this is very difficult, almost impossible: what kind of buyer would agree to own half of the apartment? Therefore, it is necessary that the former spouses come to a mutual agreement: they sell their shares to one buyer, and with the proceeds they purchase a separate home for themselves. This will be the exchange. The procedure can be significantly complicated if the participation of guardianship authorities is required (one of the homeowners is a minor child).
If the ex-spouses, after the end of the marriage, have not come to a consensus: the wife does not want to move out of the apartment or the husband is against the exchange, you can try to exchange the apartment through the court.
It is very difficult to solve such a problem on your own: you will have to look for a buyer for the apartment, and then start looking for housing for yourself. Therefore, it is better to contact professional real estate agencies. Employees will ensure that all sales and purchase agreements are concluded on the same day, and the risks of sellers will be minimized.
If you decide to leave your parents and exchange your shared apartment, you also need to first find buyers, and then look for options for new apartments. The conclusion of a transaction comes down to the signing of purchase and sale agreements and their state registration.
Sequencing
When wondering how to exchange a non-privatized apartment, you should not only determine whether such a procedure is possible, but also know in what sequence and what actions will need to be performed.
Once the reality of the exchange is confirmed, you will need to start looking for options for the exchange. Since this is far from a basic transaction where you can view or create ads and wait for the right opportunity, it is important to understand that sometimes you will not be able to progress beyond this point. This state of affairs is due to the fact that today there is not as much municipal housing as there used to be, and there are even fewer people willing to make an exchange in a given locality, especially a small one. In addition, the human factor cannot be excluded. To exchange municipal housing, it is necessary for both parties to come to an agreement and find the new living conditions acceptable to themselves. This is a significant problem, since it usually means living with strangers, with whom it is not always possible to find a common language.
If an option for exchange is found, the next step is to prepare the necessary documents, a list of which is presented below. After this, it is necessary to obtain the consent of the municipality for the exchange and permission to do so on behalf of all adult capable residents of the apartment. When these stages are completed, an exchange agreement is drawn up, and new social rental agreements are concluded.
Equal and unequal exchange
There are concepts of equal and unequal exchange of apartments. In the first case, both parties to the transaction do not lose in anything: there is no need for additional payment, since the market value of the exchanged apartment is equal to the total market value of the apartments being purchased. At the same time, the characteristics of real estate may differ (for example, a large three-room apartment in a new building on the outskirts is exchanged for two one-room apartments in the center).
In case of an unequal exchange, one of the parties has to pay extra to get a new apartment. So, for example, it is difficult to exchange a two-room apartment for two one-room apartments: in order to get two full-fledged, albeit small, apartments instead of one, the seller will have to make an additional payment.
It can be very difficult to resettle the residents of one, even a large apartment: therefore, some of them may find themselves at a disadvantage and refuse to exchange at all. The solution may be to exchange the apartment through the court or contact a real estate agency, whose employees will try to choose the most optimal accommodation option.
Barter agreement
Barter is an action that involves exchanging a privatized apartment for a privatized one, both without additional payment and with a possible additional payment by one of the parties, depending on the terms of the agreement.
One way or another, barter allows you to deal with the housing situation much faster and achieve the desired result.
As you know, a barter agreement, like any other agreement, has its own nuances, which will also need to be discussed separately.
Here you can download the most popular samples:
- Standard barter agreement;
- Agreement for the exchange of equivalent apartments;
- Contract for the exchange of residential buildings with additional payment.
Read more about drawing up an exchange agreement here.
Apartment exchange: tips
To make the process of exchanging an apartment as easy as possible and speed it up, listen to the recommendations of real estate market experts.
Adequately assess your capabilities
The rule of mathematics does not apply to the exchange of apartments: 2+1=3. A three-room apartment can easily be exchanged for two one-room apartments, but if you want one of the new apartments to be a two-room apartment, you will most likely have to pay extra. And it is completely impossible to exchange a two-room apartment for two full-fledged apartments: at best, these will be rooms in a communal apartment. Therefore, be prepared to pay a certain amount of money to get decent housing as a result.
Contact the professionals
Are you ready to search for buyers for your apartment yourself, persuade them to wait until you find options for new housing, collect a lot of documents for the guardianship authorities if one of the owners is a minor? You have no idea how much time it will take you to make the exchange on your own, and how much nerves will be spent. Therefore, do not skimp on the services of realtors: they will do all the necessary work, and all you have to do is choose the options for new apartments from those offered and come to finalize the transaction.
Learn to negotiate
Very often people try to sell their share in an apartment because other owners do not agree to exchange housing. Theoretically, this can be done, but in practice, such offers are stored in real estate agency databases for years without finding their buyers. Therefore, try to find some compromises, negotiate with the other apartment owners, try to interest them in the exchange. Perhaps you will be able to sell your share to the current owners: then the problem will disappear.
Avoid apartments with encumbrances
Buying an apartment with encumbrances is a big risk. Such offers may seem very profitable due to the low price, but in the end you may be left without money and without an apartment. Why? When people try to sell housing purchased with a mortgage, the debt for which has not yet been paid, the bank does not give its consent, because the apartment is pledged. Therefore, to sell such an apartment, the buyer must first repay this debt, and only then enter into a sales contract. There is no guarantee that you will remove the encumbrance and the seller will not cheat you later. You, of course, can enter into a written agreement according to which the seller will be obliged to transfer the apartment to you, but in practice it does not reduce the buyer’s risk in any way.
Check the purity of the transaction
Make sure that temporarily absent citizens are not registered in the apartment, and that all others do not refuse to check out. Try to find out how many times the apartment has already been sold and bought: if it has been resold several times over the last year, this is a reason to be wary.
Exchanging an apartment with your parents, between ex-spouses or just strangers is a rather complicated process, but if you approach it as responsibly as possible, realistically assess your capabilities and carefully monitor the legality and purity of the transaction, as a result you will become the happy owner of a new home.
Finding the right option
Before exchanging a non-privatized apartment, it is important to assess the reality of your intention, and this means not only meeting all the requirements, but also finding an option for relocation with tenants who agree to exchange.
The best option would be to exchange with friends or relatives, but this is not always possible and not as often as we would like. Based on this, we can conclude that exchanging a non-privatized apartment is difficult in terms of finding options. The search is carried out independently, or with the help of the services of real estate agencies. In the latter case, it will be faster, since realtors have their own database of clients and offers, but, accordingly, it will be more expensive, since the services of agents are not free. In addition, in addition to direct search, realtors help prepare the necessary papers, and also advise on many controversial issues, taking on negotiations if the client so desires.
Independent search follows the standard procedure - viewing and submitting advertisements, searching through friends, colleagues, relatives. This is a longer, but financially economical option. But it will take quite a lot of time.
