Pravozhil.com > Real estate registration > What is alienation of real estate, types of alienation
It is important to know what alienation of real estate is. After all, it is difficult to imagine modern economic and social legal relations in which the fact of sale and acquisition of any real estate is not present.
Individuals use it for living. And legal entities make a profit and use it in their business activities.
Therefore, before concluding any transactions, you need to understand what alienation of real estate is.
What is alienation of real estate
By alienation of property, lawyers mean all transactions related to the transfer of ownership from one person to another, for compensation, free of charge or on a forced basis
Alienation of property - what does it mean? From a legal point of view, there is no such term as sale or donation of real estate. The concept of alienation of property is applied to such legal relations.
The alienation of the specified property means such a legal transaction (alienation agreement), as a result of which the owner of the specified property transfers the right to it to another person.
The alienator may be individuals or legal entities. As well as the state, represented by territorial or municipal bodies.
The acquirer can be citizens of our state who have legal capacity, as well as legal entities that conduct any (commercial and non-commercial) activities.
Transfer of rights to such property can occur in the following ways:
- purchase and sale agreement, that is, when the owner of the property sells it to another person and receives compensation for this (voluntary alienation);
- a gift agreement, in which the owner of an apartment or other object gives it to his relative or other person (including a legal entity) without receiving any remuneration for it (voluntary alienation, without receiving material benefits);
- making an exchange when a piece of real estate is transferred to another person, who in return transfers some thing or other material benefit (car, jewelry). In essence, this is also a voluntary alienation with the receipt of certain material benefits;
- gratuitous transfer (for example, during confiscation), or other legal actions by government authorities (requisition).
In fact, the alienation of property is the process of transferring ownership rights to it from one person to another on compensated (receipt of any material benefit) or gratuitous conditions.
It is important to remember that the fact of transfer of rights is confirmed only after their official state registration for any real estate in a special state register.
Contract form
To conclude an agreement on the complete transfer of exclusive rights, it is important not only the content, but also compliance with a certain form. Exclusive rights to intellectual property objects are alienated only in writing. The absence of a written form entails the invalidity of the agreement with all the ensuing consequences - the parties return to the situation that existed before the transaction (at best).
If the contract alienates rights to results of intellectual activity or means of individualization that are subject to state registration, the transfer of the exclusive right under the contract will also need to be registered. Thus, registration of the transfer of exclusive rights is necessary when the subject of the transaction is rights to inventions, selection achievements, trademarks, industrial designs and utility models.
Important!
Databases, as well as computer programs, can be patented at the request of their owners. If the rights to these intellectual property objects have been registered, then the transfer of rights must be legalized through the registration procedure.
Voluntary and forced alienation
What types of alienation are there? It was described above that the current Legislation provides for various methods of legal alienation, among which there is even requisition (forced alienation). In essence, these methods are identical in their legal nature. They differ only in the way ownership is transferred.
Voluntary alienation refers to these actions of a person, including legal entities, and government bodies, which respond to his internal desire for the occurrence of such consequences as the transfer of ownership of his object to another person.
Naturally, this can happen for receiving certain material or other benefits. In some cases, a person’s will is aimed at alienation free of charge, then a deed of gift is drawn up.
By forced alienation we mean the actions of the state represented by its authorized bodies that requisition real estate for any legal reason.
This may be a decision of the court or other competent authorities. Requisition is provided for in the Constitution of our state.
These are the features of the alienation of real estate.
It is important to know that the list of cases in which requisition may occur is clearly regulated by current legislation.
If it occurs under another pretext, these are illegal actions for which criminal liability is provided.
Alienation of a share of an apartment, features of such transactions
Among some of the problems that property owners face is shared ownership of a property.
Shared ownership means a situation in which one object (apartment, house) has several owners, and each of them owns a part of it. Naturally, the current legislation protects their rights in the following way.
According to the Civil Code, as well as Federal Law 159 on the specifics of the alienation of real estate, shared owners have the primary right to acquire a share of the property.
Therefore, a person who decides to sell part of an apartment or house, after deciding on the price, is obliged to make an offer to the other owners.
With shared ownership of property, the alienation procedure becomes significantly more complicated
Only after they refuse can you safely carry out the transaction and sell your part to any individual or legal entity. Naturally, this transaction will be notarized.
To avoid any questions from the notary, you can do the following:
- Written statements are taken from other owners that they are not against selling the share to another person, to which a photocopy of the applicant’s passport is attached so that signatures can be compared and authenticity can be verified.
- The second method, which is more effective, is to invite the co-owners to the notary, and assure them of their refusal in the prescribed (written) form.
Procedure
Let's look at the example of a piece of land to see how alienation is carried out. First, the Russian citizen receives a notice informing him of a violation of legal norms during the exploitation of a plot of land. A decision is made in court to forcibly confiscate the site. If the owner’s guilt is established in court, a writ of execution is issued. After this, the land plot is subject to seizure by bailiffs.
Next, the plot of land is sold at auction or becomes the property of the state or municipality. To restore their own rights to land, the former owner must go to court. Forced alienation can last for several months or more. The timing is affected by the circumstances under which the procedure is performed.
To seize land, you may need the following documents:
- owner's passport;
- documents that establish the right to a land plot;
- documents that certify the right to a land plot;
- technical documents for the land - cadastre plan, description of the site, certificate from the BTI about the buildings located on the land, appraiser's conclusion;
- expert opinion on the condition of the territory;
- act on seizure of land;
- court statement.
Each of the listed documents is provided in the form of photocopies and is certified as originals.
The consequences of land seizure include the following:
- The owner will lose his own rights to the land, will not be able to use it at his own discretion, or benefit from its exploitation.
- The owner will lose the right to use the land plot as collateral.
- The owner will not be able to sell, exchange, donate the territory, or rent it out.
In addition to rights, the owner will also lose his obligations in relation to the alienated plot, for example:
- payment of taxes, utility bills;
- organization of agrotechnical and security measures;
- exploitation of the land plot only for its intended purpose.
In certain situations, ownership of property can be restored. The exception is cases when property is confiscated. When seized in this way, the property is sold at auction, and another person receives the right of ownership.
Reference! As a rule, the previous owner cannot challenge this action, and the only option for compensation for losses incurred is material compensation. Similar rules apply for nationalization, when the entire land becomes state property.
Consent to alienation
Alienation occurs with even greater complications if the owner of a share in the real estate is a minor child
The first problematic case, when the property is in shared ownership, was discussed above. But there are still problematic situations.
This also includes the sale or other alienation of real estate owned by minors and minors (or they are co-owners).
In general, children’s rights are strictly regulated, and many government bodies are on their side, one of which is the Guardianship Council.
He is in charge of all transactions involving the alienation of property. It belongs wholly or partially to the children, and it is he who gives consent to all such alienations.
In order to avoid any questions, parents or guardians who decide to sell an apartment where the child owns a part should know the following subtleties:
Before selling the property described, parents must find equivalent housing that is no worse than the one being sold, or has better individual parameters.
If, according to the documents, nothing will be purchased in return, then the board of guardians will not give permission, and if the sale does occur, it will go to court and declare the transaction invalid.
Children who are 14 years old must come to the Board of Guardians (CO) and confirm their consent to the alienation by writing a written statement. If they refuse to do this for any reason, there will be no permission to sell from the OS.
What documents need to be prepared when alienating property?
In order for the alienation of property to be recognized as legal, the parties to the transaction will need to ensure the correct execution and registration of all documents
In order for the alienation process to be correct, and from a legal point of view, such a transaction cannot be canceled, the parties and participants must know what list of documents is necessary.
On the part of the seller, or the one who alienates, first of all, it is necessary to have a document that confirms his ownership. This can be a purchase and sale agreement, a gift, an inheritance, or a privatization certificate.
If the property is in joint shared ownership, then statements from the other owners will be required that they have been notified of the intentions of alienation and are not against it.
The next thing is the availability of documents from the passport office (district migration service, housing office) about who is registered in the real estate. This is not necessary for commercial real estate.
When conducting a transaction involving the alienation of property, any document or even a certificate may be important; this fact must not be overlooked
If at the time of alienation it is determined that some family members have not been deregistered, then the new owner will have problems with their deregistration. The last thing is the presence or absence of debt for utilities.
Despite the fact that such a certificate is not important and does not affect ownership and disposal, the debt may entail going to court and seizing the apartment or house.
The last document is an extract from the register, which will confirm that at the time of the transaction, the apartment, house or other object is not leased for long-term, there is no arrest or other prohibition on alienation.
If the transaction goes through a notary, then the latter is obliged to check it himself.
There is no need to collect any documents for the person who will become the new owner; the main thing is to check that the buyer has the necessary information.
It is important to know that immediately after concluding an alienation transaction, the new owner must register it in a special state register. And only then will there be a complete transfer of ownership.
Alienation of real estate refers to the process of transferring ownership of it from one owner to a new one. It can be paid or gratuitous.
Watch the video about the alienation of shares in common property rights:
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Discussion: 3 comments
- Ivan says:
10/13/2018 at 12:54 pmI didn’t quite understand the functions of a notary in transactions involving the alienation of real estate. What exactly does he certify if all documents still go through Rosreestr and without his consent to registration the transaction is void?
Answer
- Evgeniy says:
10/05/2020 at 00:17
Alienation of property is a very long process with a lot of nuances. We did everything through a notary. There was simply no time to run through all the authorities, collect certificates and papers.
Answer
- Albina says:
06.10.2020 at 00:27
You should not get involved with property that includes a minor child. In 90 percent of cases, problems arose later. If the child is already 14 years old, then it’s easier.
Answer
Legal assistance in supporting a transaction for the transfer of exclusive rights
An agreement on the alienation of exclusive rights is a complex legal structure. Its coordination, execution and conclusion has many legal nuances with far-reaching consequences. If you are not ready to take risks, use the professional support of RTM Group lawyers. Our experts will conduct a comprehensive legal analysis of the situation and develop a text of an agreement that will comply with the requirements of the law and maximally protect your interests.
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