Notarial obligation to allocate shares to children in maternity capital in 2021

In accordance with current legislation, every family in Russia that has a second child has the right to receive maternity capital. One way to spend it is to improve the living conditions of the whole family. However, in order to do this, certain requirements must be met. One of them is the obligation to allocate a share of maternity capital to children. In what cases, how and by whom this document is drawn up, you will learn from our article.

Obligation to allocate shares to children in maternity capital

If for one reason or another it is impossible to allocate shares in residential real estate acquired with the involvement of family capital, then the Pension Fund of the Russian Federation will require parents (adoptive parents) to provide a written undertaking to allocate a certain share in the apartment to each child in the future. This is necessary to ensure that children are not left homeless due to the fault of their parents.

The obligation to subsequently allocate a share is an official, legally binding document, certified by a notary. It contains information about the mandatory registration of rights to real estate acquired with the use of maternity capital funds for all family members in the future.

This document is necessary in order to provide it to the employees of the Pension Fund of the Russian Federation, who review the entire package of documents to allocate family capital to you for the purchase of housing.

Execution of obligations

The Pension Fund not only gives permission to manage funds, but also controls how obligations are fulfilled and records violations. That is why the certified obligation is provided to the fund’s employees for recording. Failure to fulfill obligations entails serious consequences, including criminal liability.

Completion is given 6 months from the date of removal of the encumbrance. The deadlines are individual in each case. If you have a mortgage, you will need additional reporting to the guardianship authorities about the absence of debt. It is recommended to keep all receipts associated with debt payments.

Real estate is distributed by equity participation. If another family member appears within the established period, the parents themselves decide whether to include him in the division of shares, and in what proportion.

Homeowners must fulfill their obligation within the specified period, that is, register with Rosreestr the shared rights of all family members to the purchased property. After which it is necessary to notify the Pension Fund employee in writing that the undertaken obligations have been fulfilled.

If there is a failure to fulfill obligations, the pension authorities go to court with the intention of canceling the transaction and returning the maternity capital funds to the Pension Fund budget. A citizen can implement the demands of the claim (obligations undertaken) at any time during the trial. After which it will be revoked and the proceedings will be terminated. Legal practice shows that there are few such precedents.

When is a written commitment required?

Execution of a notarized obligation is necessary only in certain cases:

the family decided to spend maternity capital on improving living conditions;
the purchased housing cannot be registered as ownership at the time of purchase (for example, money received from the Pension Fund of the Russian Federation will be used for the construction of a new house);
the apartment belongs only to one of the parents (in this case, the obligation is drawn up for both the children and the second spouse);
the family has already improved their living conditions by attracting borrowed funds (mortgages, installments, etc.) and the money from the family capital will be used to pay off the loan debt.

Example. The Vasiliev couple had a second child in 2009.
The child’s mother received, in accordance with current legislation, a certificate confirming her right to receive maternity capital funds. Since back in 2006, the family purchased an apartment with a mortgage, it was decided to use the funds allocated by the state for the birth of a second child to pay off the principal debt on the loan. But since the apartment was actually the property of the bank, it was impossible to register ownership of all family members, including children. Therefore, the spouses turned to a notary office, where each of them (since both were co-borrowers) drew up an obligation to allocate shares of the apartment to the children after repaying the loan and removing the encumbrance. Together with other necessary documents, the Vasiliev spouses submitted obligations to the Pension Fund of the Russian Federation and the money was transferred to pay off the mortgage.

Fanis
:
February 14, 2021 at 4:31 am
a notarial obligation to allocate shares when purchasing a secondary home using mat capital after repaying the debt and removing the encumbrance remains in force if it was issued before the 20th year and taking into account the death of one of the dependents (child (..).? I believe it is already possible to distribute the shares to incumbents should not wait for complete cancellation because we have the right of ownership and one notarial obligation is canceled on the basis of a death certificate?
Answer
DedVorchun
:
March 19, 2021 at 12:05 pm
The article is good, but what exactly does it mean that it is possible to conclude an agreement on the allocation of shares without a notary? Your links are simply to the article. 2 Law 35-FZ 2021 is not enough. In addition, claiming that you can do without a notary, you provide a sample agreement, in the second clause 3 of which (apparently there is a typo: the second clause 3 should probably be considered clause 4) it is the notary who establishes shared participation in the property right. But the notary will not do anything for free. In addition, the transition from joint ownership to shared ownership requires notarization, as far as I know offhand. Unfortunately, when accepting an agreement on the allocation of shares, our MFC warns that without notarized confirmation of the allocation of shares, Rosreestr will return the papers without registration.
Answer

In relation to whom it is not drawn up

In judicial practice, there are often disputes regarding the allocation of a share of residential premises acquired using funds from a family certificate. However, not all of them are subject to satisfaction. Thus, the legislator clearly defined the circle of persons who must be allocated space in such real estate:

blood relatives or officially adopted children;
the second spouse, if the home is registered in the name of only one of them.

The following persons are not subject to inclusion in the obligation:

warded minors;
registered in the purchased apartment, but not relatives (adopted) in relation to the owner of the MK certificate;
any other relatives other than spouses (even if they are disabled, incapacitated, etc.);
children who were not yet born at the time of drawing up the document (not officially adopted);
ex-spouses.

Example. In 2006, the officially married Kostylevs had a child. In 2008, they divorced, and the child remained to live with his mother; the ex-husband paid alimony for his maintenance. Two years later, Kostyleva remarried and gave birth to a second child, thereby gaining the right to receive maternity capital. She decided to use it to pay off the mortgage on the apartment that she and her second husband acquired during their marriage. After completing the entire procedure, the woman and her husband allocated shares in the apartment to both children in accordance with their obligations. However, Kostylev filed a lawsuit stating that he also has the right to be allocated living space in this apartment, since one of the children is his, he pays alimony. The court rejected these demands from Kostylev, explaining that he is not one of the persons in respect of whom shares in real estate acquired with the help of family capital should be allocated.

Where to take it, to whom to give it?

Having decided on the size of the shares, parents begin to choose the method of approving the deed of gift.

There are 3 ways to draw up a gift deed:

Notarial office

The institution provides services for the preparation, certification and registration of agreements. Previously, it was possible to do without a notary. However, starting from 2021, the transfer of shares undergoes mandatory verification by notaries (Federal Law No. 172 “On Amendments...”).

Therefore, in most cases you will still have to visit the clerk. The notary will select a draft agreement, formalize the agreement, check the sanity of the parties, mutual desire and affix the necessary stamps. And from February 1, 2021, notaries will submit documents for registration to Rosreestr free of charge. Previously, you had to pay for this service, but now you don’t.

On one's own

If you plan...

transfer a share in an apartment to one owner;
The spouses want to allocate the children's shares from the apartment in joint ownership...

…it is not necessary to contact a notary. To draw up a gift agreement, you will need skills in working with paperwork. Download the form and sample contract for 2021 from our website.

You can also agree to donate a share of an apartment to children, but without using maternal capital.

Lawyer

There is no more reliable way than to seek help from a lawyer. The specialist will tell you what to include in the contract, how to calculate the shares, where is the best place to formalize the deal and how much will it cost? We recommend taking advantage of a free consultation on our website.

Example: The Zhurbins were figuring out how to give shares of an apartment to their two children. The wife had a daughter from her first failed marriage. The Zhurbins' joint child was born after the creation of the family union. The couple received a certificate for the use of maternal capital. According to the rules for receiving MK, funds are allocated for the birth of a second child. Since the Zhurbins received maternity capital after the birth of their common child, they undertook to allocate the share of their wife’s daughter from her first marriage. It was decided to transfer the shares through a gift agreement to the children.

How to formalize an obligation to allocate a share of maternity capital

In order for the Pension Fund to make a positive decision on allocating maternity capital funds to improve housing conditions, it is necessary to take a responsible approach to formalizing the obligation to allocate shares to family members. To do this you need:

collect a certain package of documents;
contact a notary office;
check the information entered by the notary into the document;
certify the obligation with your signature;
make sure that the notary has certified the agreement with his personal seal and signature.

The original of this document is transferred to the branch of the Pension Fund of the Russian Federation, and you keep a copy.

Where to contact

Since the obligation must not only be formalized accordingly, but also certified by a certain official, you should contact a notary office to draw up this document. Of course, you can draw up a document yourself, but to give it legal force you still have to go to a notary.

Since there is no unified form for this document, it is best to check with the Pension Fund before visiting a notary in what form the obligation must be drawn up. Requirements may vary depending on your region.

Who should contact

A document containing an obligation to allocate shares of real estate is drawn up by the owner of the property. So, even if an encumbrance is imposed on the apartment (mortgage, installment plan, etc.), then in the extract from the unified state. The register contains information about to whose benefit the property will be turned after its withdrawal (for example, spouses who are co-borrowers or one of the parents of minors).

Required documents

To formalize the obligation, the notary must provide the following documents:

passport of the person who owns the apartment;
birth certificate of each child;
confirmation of marriage;
statement of the existence of debt obligations (mortgage agreement, installment agreement, etc.);
confirmation of the impossibility of registering property rights (shared construction agreement, permission to build a residential building, etc.);
an extract from the Unified State Register of Real Estate on the existence of the right to the object;
certificate of provision of family capital.

Price

Article 333 of the Tax Code of the Russian Federation determines the cost for drawing up a notarial obligation - 500 rubles. However, for technical and legal work, notaries may charge additional fees, according to the tariff schedule established by the chamber. Depending on the region where the document was drawn up, the total cost of completing the obligation will range from 600 to 1,500 rubles

The procedure for registering a gift for a share of an apartment for children

When alienating part of an apartment, notarization of the transaction is required. Otherwise, the contract will be void. The draft agreement can be ordered from a specialized lawyer. If necessary, the standard form can be supplemented with new sections. The only condition is compliance with the law. A notary checks the contract for legality.

The deed of gift is drawn up at the location of the apartment. The parties to the agreement must prepare a package of documents and pay a state fee. After the transaction is certified, the copyright holder will have to visit Rosreestr. Registration of rights occurs at the request of the recipient. Following the procedure, the copyright holder will be given an extract from the Unified State Register.

Procedure

Initially, the donor and the recipient need to agree on the main points of the transaction. For example, is a relative ready to accept the gift, the size of the share, who will pay the expenses. You can order a draft agreement from a specialized lawyer. The specialist will listen to your wishes and transfer them to paper.

Next, you should prepare documents for the notary. Without them, the deal will not take place. If you have the necessary documents, you can go to the notary. He will establish the identities of citizens, check the papers for completeness and compliance with the law. Then the notary will explain to citizens their rights and obligations and provide details for paying the fee.

Later, the notary representative will invite citizens to sign the agreement. After which he will certify the gift agreement and enter the data into the notary register. Following the transaction, the notary will remind citizens of the need to register property rights.

Documentation

To complete the transaction you need:

Identity card of citizens (donor, recipient).
Papers for the alienated property (extract from the Unified State Register, purchase and sale agreement).
Certificate of family composition.
Confirmation of relationship.

The latter document exempts citizens from paying income tax (Article 217 of the Tax Code of the Russian Federation).

Expenses

When notarizing a gift agreement, a fee of 0.5% of the value of the alienated property is withheld. However, the amount cannot be less than 300 rubles. The limit rate is 20 thousand rubles. The amount of the fee is calculated based on two documents - a report on the value of the property or a cadastral certificate.

The payer of the state duty may be the donor or the beneficiary.

Additionally, the party to the agreement will have to pay for notary services. The average rate in the country is 5 thousand rubles. Rates may vary by region.

Registration of property rights is paid separately. If the room is located in an apartment building, the fee will be 200 rubles. When re-registering an entire apartment, 2 thousand rubles are withheld.

Deadlines

The parties to the agreement decide when exactly to formalize the deed of gift. However, here it is necessary to take into account certain provisions of the law. For example, about registering property as common property within six months .

Sample obligation to allocate a share of maternal capital to children

Regardless of where the obligation to allocate shares is drawn up, it must contain the following information:

passport information about the owner of the property;
the type of encumbrance imposed on it;
details of the certificate for receiving family capital (number, by whom and when issued);
information about the property;
data of persons in respect of whom housing division will be carried out in the future;
an indication that at the time of drawing up the document, the owner can be responsible for his actions and is aware of their consequences;
the period within which the obligation must be fulfilled (usually 6 months from the date of removal of the encumbrance);
Date of preparation;
signature of the property owner;
personal seal and signature of the notary.

How to draw up a gift agreement correctly?

A prerequisite is the requirement for the form - the gift agreement must be drawn up in writing.

Parents or one of the spouses act as donors - homeowners who want to transfer a share of the apartment to their children. Minors - act as donees , i.e. recipients of a share of the apartment.

If there are two donors (husband and wife), you must first enter their surnames, first names and patronymics into the contract, and then indicate the name “Donors” (similarly for two children).

Liability for failure to fulfill an obligation

In fact, none of the government bodies monitors the fulfillment of the obligation to allocate a share to children after using maternity capital. The guardianship authorities, Rosreestr and the Pension Fund of the Russian Federation require only a nominal obligation. However, in some cases, a judicial procedure for restoring the rights of children may be applied to parents who have not fulfilled the notarial obligation. Typically, the guardianship authorities, the prosecutor's office or pension fund employees, having established the fact of failure to fulfill such an obligation, file a claim with the justice authorities. 100% of such requests are considered not in favor of the parents. Based on a court decision, changes are made to the state register and children are given their own share in housing.

Neither criminal nor administrative liability for an obligation not fulfilled on time is provided for by the legislation of the Russian Federation.

What is the price?

So, we found out that in most cases, the agreement for donating a share to children must be certified by a notary. It remains to determine how much his services will cost?

The deed of gift for the transfer of a share to children is subject to assessment, since it allows one to calculate the value of the alienated part of the property (Article 22 of the “Fundamentals of the Legislation of the Russian Federation on Notaries”).

Parents will have to pay a state fee: 0.5% of the price of the shares, but not less than 300 rubles, and not more than 20,000 rubles.

Notary services are assessed according to other criteria: technical and legal work with documents . This includes a request to government agencies, printing, going to archives, checking the legal purity of the transaction, and more - the total amount reaches 3-7 thousand rubles.

Even if you do not contact a notary, costs cannot be avoided. The main one is the state duty for registering a transaction in Rosreestr. The cost is 2,000 rubles per recipient, but in the case of children, the fee is paid by the parents.

Price of obligation from a notary

The cost of the NO depends on the citizen’s place of residence. So, in some regions the obligation will cost 300-500 rubles. In other regions the price will reach 10,000 rubles.

It is important to know! How to clarify the amount of maternity capital?

The average price of BUT varies between 1200 – 2500 rubles. The minimum amount is 300 rubles, the maximum is 12,000 rubles.

The cost of BUT is indicated at the end of this document. In this case, a note is made that the specified amount was collected according to the approved tariffs of the notary’s office.

Is it possible to allocate shares in another property?

Due to insufficient regulation, parents can take advantage of the negligence of government officials when selling housing without distributing shares.

If such a violation is detected, punishment threatens not only the parents, but also the employees who allowed such a transaction. In some cases, the purchase and sale transaction of an apartment (house) is executed subject to the allocation of other property to the children.

Only strict adherence to the procedure will allow you to avoid legal problems and attention from supervisory authorities:

Introduction to ownership of the purchased apartment for all family members.
Coordination of a new transaction for the sale of real estate with the guardianship authorities, subject to the provision of other equivalent property.
Registration of alienation of real estate in accordance with received permits.

This process is quite complicated, as it requires close cooperation with the guardianship authorities and thorough preparation. However, this option is the only correct one, excluding any claims from third parties or supervisory authorities.

If there is a second apartment or house that is equivalent to the acquired property, it will not be difficult to agree on the allocation of a share to the child in another property. If the second piece of property is just planned for acquisition, it will be possible to obtain permission from the guardianship to sell the home only after a preliminary transaction for the purchase of a new home in which minors will be registered as the owners.

Fulfillment of the obligation to provide children with shared ownership of housing

When purchasing a home with funds from maternity capital, parents can transfer part of the property to their children both immediately and in the future, formalizing such a promise with a notarial obligation. The size of the parts of the allocated property is determined by the spouses themselves.

According to the agreement on determining the shares

This agreement can be drawn up either with a notary or independently. Mandatory certification at a notary's office is not required , but in this case, there is no guarantee that the document will be drawn up legally correctly and the registering authority will accept it.

The agreement on determining shares must indicate:

name - agreement on determining shares;
date and place of document preparation;
details of both parents, last name, first name, middle name, passport information;
information about minor children;
the purpose for which maternity capital is spent;
the size of the share of each family member;
information about real estate - area, cadastral number, type of property;
handwritten signatures of the parties with transcripts.

Information

To draw up an agreement with a notary, you must pay an amount of 1500-2500 for the service provided. There is no single form that would suit any employee of the registration authority.

Under the agreement of donating shares to children for maternity capital

The transfer of shares under a gift agreement to minor children is currently gaining popularity due to the fact that parents want to reliably ensure the future of their children. In this case, the deed of gift must be drawn up in writing and sealed with the signatures of the participating persons. It is advisable to have this agreement certified by a notary office, but this action is not mandatory under the legislation of the Russian Federation.

The agreement for donating a share of housing to a child must indicate:

information about the parties to the transaction;
passport details of the participating persons, as well as place of registration;
description of the subject of the deed of gift, namely information that is reflected in the title documents for this property (location address, area, number of residential premises, floor, cadastral or inventory number.

Attention

A necessary condition for concluding such an agreement is the presence of a legal representative of the donee - father or mother, trustee, guardian. After registration of ownership, the property will belong to the minor child.

After the latter turns 14 years old , he will receive the right to use and dispose of such a gift, but only with the consent of the guardianship and trusteeship authority. He will receive full rights of disposal, use and ownership only upon reaching the age of eighteen .

Setting shares

The Civil Code (Article 245) gives parents the right to independently distribute housing for everyone, including minor owners. The law does not limit the will of the children’s official representatives, allowing them to voluntarily determine the portion that will be allocated from the housing purchased with the participation of maternal capital.

To avoid possible accusations of violating the rights of a child, it is recommended to proceed from the standards adopted in housing legislation - 12 square meters per person. In each region, the minimum permissible footage differs, based on the specifics of regional legislation, which requires clarification of the minimum housing standards.

When the mortgaged property is distributed between the co-borrowing parents, the allocation of shares is made for each of the owners, and in the case of joint ownership, the distribution is agreed upon between the spouses.

When assigning property to children, it is necessary to take into account that parents will be responsible for actions in relation to property belonging to children.

If the property belonged to only one of the spouses, the second also has the right to allocate a part. If desired, the spouse has the right to refuse to distribute shares in favor of his children or spouse.