How to exchange an apartment correctly in 2021?

Exchange of an apartment is a transaction that occurs everywhere. A net sale of living space, after which the owner receives a certain amount in his hands and does not look for another place to live, practically does not occur. Changing an apartment is not difficult, however, it is necessary to comply with a lot of legal subtleties.

The status of the property plays a big role. For example, a municipal apartment is exchanged differently than privatized living space. If the apartment is in shared ownership, the exchange procedure becomes much more complicated. Additional difficulties are caused by the presence of minor owners among the residents. In this article we will look at all the intricacies of exchanging apartments.

Legislation

When exchanging, it is not allowed to conclude a general agreement for all real estate objects. For each selected apartment, a separate agreement is required indicating the subject of the contract, the seller and the buyer. The following provisions of the Civil Code of the Russian Federation are taken into account:

According to Art. 549, the seller of the property must transfer ownership of it to the buyer after receiving payment, and in the case of exchange, additional payment if necessary;
The agreement is concluded only in writing and must contain complete information about the apartment (the subject of the transaction), signatures of the parties;
After the transaction is completed, it is subject to mandatory registration with Rosreestr, which records the termination of the rights of the previous owner and the emergence of rights of the new owner.

If one of the parties to the agreement refuses to register the transfer of rights and prevents this by all means, the other party can go to court for forced registration.

Features of the procedure

From a legal position, exchange is a procedure in which the main participants are the tenants of municipal housing.
If such a transaction is carried out in the private housing sector, the concept of barter is applied. The classic exchange consists of transferring your apartment to a citizen in exchange for the provision of another property . The main difficulty of the transaction is finding options that suit both parties.

An alternative exchange is a home sale transaction that involves replacing one property with another . It is suitable for apartment owners interested in changing their living conditions.

Exchange methods

The procedure differs in how it is carried out depending on the form of ownership. Individuals, local governments and co-owners can participate in property transactions. To understand how to properly exchange an apartment, you need to decide on the form of ownership. Transactions are allowed in the following situations:

Municipal apartment;
Privatized apartment;
Common shared ownership.

In each case, a separate procedure applies, which depends on the number of owners and the form of ownership. If you cannot reach an agreement with co-owners, you can go to court and make an exchange through the courts.

It is important to maintain equivalence of exchange in terms of area and cost. If unequal options are selected, an additional payment for additional meters is allowed.

Exchange of municipal apartments

In this case, property transactions involving the sale of real estate and receipt of payment are not allowed. Such an apartment does not belong to the category of your own and is provided only with the right of lifetime use. The owner is the municipal or city authorities. Exchange is possible with the consent of all registered and the municipality. First of all, an application is submitted to the local administration indicating one of the following options:

Providing premises at the discretion of the administration;
Specific wishes without selecting options;
A ready-made option, agreed upon with residents of other municipal apartments.

The application is given 1 month to review, after which an official response is sent. If the decision is positive, the administration takes further actions. Since the apartment is municipal, the administration bears all the responsibilities for paperwork. If a satisfactory exchange option is selected in the municipal fund, the place of residence changes. New social rental agreements are being drawn up for accommodation in other apartments.

If the refusal is unlawful or the selected options are not suitable, you can file a claim in court. It is important to present compelling arguments for disagreement with the decision made. If the court satisfies the plaintiff's demands, the municipal authorities must implement the court's decision and provide the desired result.

Municipal apartment: documents

If there is permission from the municipality, the following documents are provided for the exchange of non-privatized housing:

An application for exchange, which should preferably be submitted from all registered persons, and not just from the responsible tenant;
Confirmation of family ties of persons registered in the same living space (birth certificates of children, marriage certificates, court decision on adoption);
Consent from the guardianship authorities, if children are registered;
Extract from the house register;
An extract from the personal account confirming that there are no debts on utility bills;
Social tenancy agreement.

If a positive decision is made, the exchange procedure is completed within 30 days. If we are talking about different cities, it increases to 60 days.

Exchange of a privatized apartment

The apartment may be owned due to purchase, inheritance, donation or privatization. In these cases, an alternative transaction is carried out without involving the authorities. It is necessary to simultaneously find a buyer and options for purchasing real estate for all co-owners in the required quantity. Then a transaction is concluded in which purchase and sale agreements are concluded for each object.

Exchange of a privatized apartment: stages and documents

When exchanging your own home, the following sequence of actions is performed:

Finding a suitable option. This can be done independently or with the help of a real estate agency.
Valuation of apartments. It is important that there is maximum consistency in price and area.
Establishing the amount of additional payment, if necessary.
Drawing up an agreement, indicating the deadline for concluding the transaction and the amount of additional payment.
Submitting documents for registration to Rosreestr and paying for the contract.
Signing the acceptance certificate and moving.

To complete a transaction, the following documents are required:

Consent to the exchange of co-owners;
Passports of all parties to the transaction;
Birth certificates of children if they are under 14 years of age;
Permission from the guardianship authority if the property is registered in the name of a minor or incompetent person;
Technical and cadastral passport;
Document of title (privatization act, certificate of inheritance, purchase and sale agreement, gift or exchange);
An extract from the Unified State Register or a certificate of ownership, if available;
Receipt of payment of the state duty for registering the transaction in Rosreestr.

If several persons act as owners of the apartment, the purchase and sale agreement is drawn up in the presence of a notary. In other cases, a simple written transaction in the presence of the parties to the transaction is allowed.

Risks

With related exchange, the risks are noticeably reduced, since it can be assumed that relatives are unlikely to deceive each other. However, in life there are different relatives and different situations, and therefore you need to know the weak links of the exchange transaction.

Market specialists believe that during an exchange the risks are much greater than, for example, during a purchase and sale transaction. This is due to the fact that the exchange is carried out in several stages.

At the same time, the cause of loss of time and money can be either fraud or a frivolous approach to the preparation and execution of documents.

For a successful exchange, it is desirable to fulfill the following conditions of the transaction:

integrity of partners;
simultaneous sale and purchase of apartments;
lack of apartments purchased with a mortgage or using maternity capital;
absence of minor owners;
absence of incapacitated owners, as well as owners who are alcoholics and drug addicts.

Equivalence of exchange

The legislation distinguishes the concepts of equivalence and unequal exchange of real estate. If the selected real estate objects for exchange are of equal value, no additional payments are provided and no additional conditions are established. However, the characteristics of the property may differ. Thus, a 3-room apartment in a residential area can be exchanged for two one-room apartments in the city center.

If the property is of unequal value, when one property is much larger in area and cost, the contract allows for an additional payment. So, if you have a two-room apartment, it is difficult to exchange it for two one-room apartments. In order for the transaction to take place, an additional payment amount is established, which all parties to the agreement agree to.

Taxes

Since the exchange of real estate is equated to a purchase and sale, it is considered that each of the apartment sellers received income on which he must pay personal income tax. According to the law, this tax is 13% of the value of the subject of the transaction. In this case, you can use tax deductions.

Sellers of apartments who have owned them for more than 3 years are exempt from this tax, and from 2021 - for more than 5 years.

Therefore, sometimes it is more profitable not to exchange an apartment, but to donate it if the transaction is made between close relatives. In this case, no tax is charged.

The danger of replacing exchange with donation is that in case of disputes in the first case, the property will return to the original owners, and in the second case it will be necessary to prove the illegality of the transaction in each gift transaction.

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.

Advantages and disadvantages of such transactions

A significant advantage of the exchange is the fact that the transaction is accompanied by a minimum amount of risks . If the results are cancelled, the parties to the transaction will be able to remain in their previous housing.

The disadvantages are the inability to select the desired property, as well as the length of the process over time. The classic exchange rules are:

exchange of a three-room apartment for a pair of one-room apartments located in the same area;
exchanging a two-room apartment for a one-room option, as well as for a room in a communal apartment.

Failure Cases

When can they assist in the apartment exchange procedure?

Hardly anyone has the right to refuse a transaction with personal housing.

Unless it is challenged in the future for various reasons (incapacity of the participant, imaginary or feigned character, etc.).

However, if the owner is a minor, then the guardianship and trusteeship authorities have the right to refuse approval if the result is contrary to the interests of the child .

When the housing does not belong to the exchangers , there may be more options for refusal. The law provides for the following:

court proceedings or a decision to evict one of the tenants or terminate the terms of social employment with him;
unequal conditions that worsen the condition of one of the parties;
refusal of guardianship and trusteeship authorities.

Is it possible to exchange an apartment with a mortgage?

Solving the mortgage issue has 3 scenarios:

Full repayment of the loan , and then complete freedom of action with the apartment.
Transfer of debt obligations to a third party. Often, this is an extremely rare occurrence, because banks do not want to go through such a procedure. Although legally it is quite feasible.
Exchange of collateral housing for an equivalent property is a replacement of collateral.

Our third option, which is regulated by Art. 345 of the Civil Code of the Russian Federation. In this case, the procedure is regulated not by the loan agreement, but by the internal regulations of the bank and its regulations. And each structure has its own, individual requirements for such actions.

Procedure for replacing collateral:

We find out whether your bank’s regulations include such an opportunity at your request.
Let's find out whether the collateral replacement distance rule applies to your banking organization, usually no more than 1000 km from your branch.
We check the apartment chosen as a replacement in the legal field. This procedure goes in parallel with the bank verification. Here you need to fuss and collect in a short time: extracts from the Housing Office, house management, data from the Unified State Register, tax office, Federal Migration Service.
Everything went well . The agreement for exchange and transfer of a new apartment as collateral is excellent. Registration of rights to housing occurs simultaneously with the removal and imposition of encumbrances on it. It takes about three months, under the watchful eye of the bank.

Important! This procedure is difficult to carry out and has many subtleties and nuances; hire a knowledgeable lawyer.

Is it possible to exchange an apartment through the court?

In relation to a privatized apartment, exchange litigation is impractical and often meaningless. Only a peaceful solution to the issue. But with regard to a municipal apartment, if there are co-owners who disagree with the exchange, then you can go to court.

The main thing is that you have strong arguments why this exchange is needed. And don’t forget about the moments when exchange is impossible at the legislative level, as such (see above).

The claim is filed in the federal court at the place of registration and residence of the defendant. It is mandatory to involve a second party as a third party in the claim. In addition, legal proceedings are possible in the following cases:

The landlord's refusal to exchange housing.
Disagreement of the Board of Trustees.

At the same time, do not forget that the court will take into account all the circumstances and subtleties of the exchange. And when making its decision, it will take into account and will not violate the rights of all parties.

Is it possible to exchange a municipal apartment?

The step-by-step procedure is similar to the above, however, it is worth indicating the moments in which the exchange of such an apartment is impossible:

If there are those who disagree with the exchange of this housing from those listed in it. In this case, the procedure for exchanging a municipal apartment includes a trial stage. It won’t be superfluous to agree with the other party to the exchange, and get them to agree to wait for the court’s decision, as well as involve them as a third party in the trial. There is a lawsuit in court to invalidate the social contract. rental or termination, for an apartment they want to exchange.
The apartment is unsuitable for living, as evidenced by special documents.
There is a dispute about the rights to use this housing.
Availability of documents for demolition or major renovation of the building in which the apartment is located.
The presence of a seriously ill person in this apartment.

What to look for?

The main thing to pay attention to when drawing up an agreement is the set of documents and their compliance with the standards. If any of them is missing or not provided by the party, this is a reason to think about the transparency of the transaction . It is advisable to request an extract from the Unified State Register of Real Estate to ensure that there is no collateral or other encumbrance.

It is important to pay attention to the condition and location of the housing itself.

It should not be significantly worse than that of the exchanged person.

If there is an additional payment, then be sure to draw up a receipt for receipt of money so that this fact has documentary evidence.

How to exchange a privatized apartment

Provided that the exchange is for a privatized apartment, it can be done in 2 ways:

Sale - there is a buyer for this housing, and at the same time, the co-owners of the apartment are looking for housing for themselves in order to purchase it with the money received for the sale of joint housing.
Exchange is a search for people who also want to exchange their housing, the main condition is that everyone should be happy with everything. In this case, the ownership rights to the apartments are re-registered.

The second method is most often due to the fact that people living in the same apartment can no longer live together for a variety of reasons. Often, families where the children have grown up and want to start their own families and live separately go for the exchange.

If a compromise solution to this issue is not found, shareholders can sell their part of the apartment to both existing shareholders and a third party. The last option is the most difficult, because it often means living with a stranger and stranger to you. It is better to look for ways to apply on such issues.

A small apartment that is in shared ownership is difficult to exchange. Therefore, lawyers recommend selling such apartments and dividing the proceeds between the owners in amounts equal to their shares.

Important! It is impossible to forcibly exchange a privatized apartment! This option is only possible in municipal housing. After all, the owner of the home, even if he is a shareholder, cannot even through the court be forced to remain without housing.

Expert opinion

Roman Efremov

5 years of experience. Specialization: all areas of jurisprudence.