Registration of an obligation to allocate a share of maternity capital

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Family capital is aimed at supporting families with children from a material point of view. And one of the areas of its use is to improve housing conditions using maternity capital funds. The procedure for using such a right involves collecting and submitting a package of documents to the territorial body of the Russian Pension Fund.

Since this support measure is aimed not least at protecting the interests of the child himself, the necessary documents in this list are the obligation of his parents to allocate shares in the purchased residential premises. We will talk about the purpose, characteristics and procedure for its registration in the article.

Obligation to allocate a share of maternity capital - what is it?

The right to receive a certificate confirming the right to use MK is established by the law “On additional measures of state support for families with children” dated December 29, 2006 No. 256-FZ. The same regulatory act establishes an exhaustive list of possible options for distributing money received from the state under this program.

Also, the Government of the Russian Federation separately establishes rules for spending MSC in a specific area. In particular, the Decree of the Government of the Russian Federation dated December 12, 2007 No. 862 approved the Rules for the direction of MK (or part of it) for improving housing conditions.

These Rules oblige recipients of the relevant certificate, when improving housing conditions by constructing new housing or purchasing it, to register such residential premises in the joint ownership of both spouses and all their minor children.

Attention! If the recipient of the certificate initially purchased residential real estate only as his own or the ownership of the residential property has not yet been registered (for example, with shared participation in construction), then he is obliged to provide an additional document for the MK to use. This will be a duly certified written obligation of the buyer-recipient of the certificate to register the residential premises in common ownership with his spouse and all minor children.

This document is essentially a one-sided transaction, is in writing and must be registered with a notary.

It is provided to the territorial body of the Pension Fund of the Russian Federation when disposing of maternity capital funds for the purchase or construction of housing, or repayment of a mortgage loan. Without it, the authorized body will refuse to dispose of this money.

Sample obligation to allocate shares in maternity capital:

How to select shares

There are two traditional ways: direct participation of children in the transaction, in which they become buyers and share owners, or formalization of an obligation.

Although now a notarized obligation is not always required, this document is the most reliable way to allocate shares to children. No matter how many examples of such an obligation there are on the Internet, lawyers can draw up the correct version that is suitable specifically for your situation. But, it is possible to formalize the obligation not of a notarial nature, in simple written form. However, such documents do not have legal force in most cases.

What is stated in the obligation

The obligation to allocate shares must indicate the following information:

1. Day, month, year and place of signing the document.
2. Full name, passport details, registration address of both parents (or one, if the second is not mentioned in the obligation).
3. Description of the use of capital: for example, to pay off principal and interest on a mortgage or improve living conditions by purchasing a residential property.
4. Description of the object (address, document details).
5. Allocation commitment with details: to whom and how much.
6. Date, signature, surname, initials.
7. A note on certification of paper by a notary: date, signature, surname, initials, seal.
8. Be sure to specify the deadline for fulfilling the obligation in the document. For example, in the case of buying a home for MK, this is a six-month period.

Why do you need to register?

As has already become clear from what was described above, the paper in question is necessary in order to ensure the acquisition of ownership of a new residential property for each family member who was provided with family capital at the birth of a second or subsequent child. And this rule, first of all, is enshrined in Part 4 of Art. 10 of Law 256-FZ.

But what is the ultimate goal of the legislator who provided such a norm? The answer lies on the surface and lies in ensuring equal rights of both spouses and all their minor children. Another theory is discussed at a less official level.

It consists in the fact that a citizen who, as a minor, received the right to a share in an apartment or house , in adulthood will no longer be able to apply for residential premises from the municipality in which he lives. And this entails significant savings for the consolidated budget, reducing the load on it.

Reference! In any case, such paper is necessary for managing maternity capital money in the event of improvement of living conditions through the acquisition or construction of residential real estate by the recipient of the certificate.

Cost of registration of the agreement

Domestic legislation states that for drawing up an agreement you will need to pay an employee of a notary agency about 500 rubles . But in practice, many specialists adhere to a different standard: they set a fee for this service in the form of 0.5% of the transaction amount, a minimum of 300 rubles, a maximum of 20 thousand.

% is calculated according to the market, inventory or cadastral assessment of the value of the purchased housing. If an employee of a notary agency is offered several appraisal acts, he will choose the lowest indicator.

Additionally, you will need to pay for the services of a specialist in preparing technical and legal documentation - no more than 2 thousand rubles.

The cost of state registration of property rights will be 2 thousand rubles.

Is it necessary to allocate shares and formalize an obligation to receive money under MK?

So, this unilateral transaction is necessary in the following cases:

• when purchasing housing (including with installment payment) by the recipient of the certificate;
• in case of payment with MK funds for the price of the contract for shared participation in construction;
• payment for the construction of an individual housing construction project;
• payment of an entrance fee or share in a housing cooperative;
• when paying off an initial loan (including a mortgage) for the purchase or construction of housing using money from MK;
• in the case of sending a certificate to repay an existing mortgage loan or interest on it.

It is also useful to read: Is it possible to use maternity capital for the rehabilitation of a disabled child?

In all cases, paperwork is necessary only when the housing was purchased or registered as the property of only the direct recipient of the certificate or not all family members specified in the law (the second spouse and all children under 18 years of age).

Accordingly, when choosing other forms of improving housing conditions, as well as when using other options for directing capital (education of children, formation of mother’s pension savings, etc.), no allocation of shares is required. Family capital in such situations is provided without providing this additional document.

Is commitment always required?

The obligation is drawn up in cases where the allocation of shares is impossible at the time of conclusion of the transaction, and serves as confirmation and guarantee of the parents’ compliance with the requirements of the current legislation.

In particular, this applies to situations:

• Payment of a mortgage loan due to the presence of encumbrances (if the mortgage was issued to one spouse or jointly);
• participation in shared construction;
• reconstruction of a residential building.

In those cases where the shares of children are determined initially in the purchase and sale agreement, there is no need to prepare additional documents.

How obligations are fulfilled

Since the document is drawn up and represents a one-sided transaction, it must be executed in the manner and within the time limits established by law.

Important! This unilateral transaction must be executed within 6 months from the date of occurrence of the circumstances specified in the Rules. They vary depending on the method of improving housing conditions and may involve removing encumbrances, putting housing into operation, transferring a shared construction project into the ownership of a participant, etc.

The fulfillment of the assumed responsibility is carried out by drawing up an agreement on the allocation of shares and registering this legal act with the registration service (Rosreestr) in the Unified State Register of Real Estate. After registering these changes and receiving supporting documents (currently these are extracts from the Unified State Register), copies of them must be provided to the Pension Fund.

Here you may be faced with the question of what the size of the shares should be, because the law says nothing about this. In practice, each family member usually receives an equal share, but spouses (for themselves and on behalf of their minor children) may provide otherwise. In general, practice (notarial and judicial) is based on the share of MK funds in the total cost of the apartment, i.e. At least that part of the apartment that is paid for by family capital is subject to division.

P example. An apartment worth 4 million rubles was purchased. and an area of ​​50 sq. m., 400 thousand rubles. was sent from MK, and the rest was the family’s own money. As is clear, a tenth of the apartment was paid for by MK, which means that at least 5 square meters will be subject to division among everyone. m. The remaining part can hypothetically be divided at the discretion of the spouses or one parent (in the absence of the other).

Do not forget about this responsibility, as this may lead to negative consequences. Although in practice it is not always possible to monitor the faithful fulfillment by the recipient of the certificate of the undertaken obligation to allocate shares, this activity is carried out on a regular basis. The authorized body for this is the Prosecutor's Office.

If unscrupulous citizens are identified, the authority has the right to file a claim in court to declare the purchase and sale transaction invalid. And this practice is not so rare.

What documents will be required?

When allocating shares, the ownership of the property is transferred, which requires mandatory state registration. Therefore, first a written agreement on the allocation of shares is drawn up, which must be submitted to the Rosreestr authority or the MFC.

The transaction will be executed on the basis of the following documents:

• identification documents of all participants in the transaction;
• an application from the owner, if the allocation comes from the common shared property of the spouses, then from each according to an application;
• legal documents for residential premises (sale and purchase agreement, donation agreement, etc.);
• an agreement to determine the shares of each family member in the property (if the case does not require notarization - in simple written form);
• payment document confirming payment of the state duty (from the allocating owner - 2000 rubles, from others - 350 rubles).

Where is the document issued?

The rules approved by Government Decree No. 862 dated December 12, 2007 indicate the need to certify such papers in the prescribed manner . This is a certification by a notary, where the document is drawn up.

The procedure for notarization of such a transaction in the absence of clear legislative norms on this topic is regulated, inter alia, by Letter of the Federal Notary Chamber dated January 28, 2009 No. 124/05-08.

Since there is no approved form, it is drawn up in free form (taking into account the established requirements). The notary has the form, so there is no need to prepare it yourself in advance.

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.

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.