No certificates required by law
All real estate transactions, including purchase and sale, are regulated on the basis of the Federal Law on Real Estate Registration No. 218-FZ dated July 13, 2015. In Art. 14 and art. 21 of this law lists the documents and requirements for them that must be submitted when registering a transaction. The required documents do not include any certificates from dispensaries, so it is not necessary to provide them. But in practice, they are asked to be provided by other participants in the transaction.
A small digression - if you need free legal advice, write online to the lawyer on the right or call the following numbers (24/7 for all regions of the Russian Federation): 8 Moscow and region; 8 St. Petersburg and region; all regions of the Russian Federation.
Post-mortem examination in an inheritance case: what does it prove?
Vladimir told the following story at the ECB office in Novokuznetsk.
His grandfather, who raised him from the age of 4, died, as his parents were deprived of parental rights. Together with his grandfather, they privatized the apartment and the latter wrote a will for his only grandson for his share. But as it turned out, shortly before his death, he signed an order to revoke the will and the unlucky son, who was deprived of parental rights, became the legal heir.
The client contacted us ten days before the expiration of the six-month period for accepting the inheritance. It was necessary to act immediately, and at the same time not to make false promises to the client.
Cases regarding the invalidation of any notarized document are always associated with great difficulties. This is only possible in case of violation of the notarial procedure by the notary himself, or certification by a notary of a document signed by an incapacitated/partially incompetent person.
Our case was further complicated by the fact that the “person” had died. All this information was conveyed to the client, to which the client reported that his grandfather had extensive brain damage as a result of a stroke that occurred six months before his death, and according to the information that our client received from the attending physician, the damage was increasing and the doctor warned him about the resulting diagnosis - dementia and complete helplessness in everyday life. Family friends can confirm this.
The lawyer filed a claim to declare the order to cancel the will invalid, because it was signed already in a state when he could not understand his actions and their consequences.
In accordance with Art. 153 of the Civil Code of the Russian Federation, transactions are actions of citizens and legal entities aimed at establishing, changing or terminating civil rights and obligations.
According to the provisions of Article 166 of the Civil Code of the Russian Federation, a transaction is invalid on the grounds established by this Code, due to its recognition as such (voidable transaction) or regardless of such recognition (void transaction).
A demand to recognize a voidable transaction as invalid may be submitted by persons specified in the Civil Code of the Russian Federation. A demand for application of the consequences of invalidity of a void transaction may be made by any interested party. The court has the right to apply such consequences on its own initiative.
In accordance with Article 177 of the Civil Code of the Russian Federation, a transaction made by a citizen, although legally competent, was at the time of its commission in such a state where he was not able to understand the meaning of his actions or manage them, may be declared invalid by the court at the request of this citizen or other persons whose rights or legally protected interests are violated as a result of its commission.
A transaction made by a citizen who was subsequently declared incompetent may be declared invalid by the court at the request of his guardian if it is proven that at the time of the transaction the citizen was not able to understand the meaning of his actions or manage them.
According to Part 1 of Art. 167 of the Civil Code of the Russian Federation, an invalid transaction does not entail legal consequences, except for those related to its invalidity, and is invalid from the moment of its completion.
An order to cancel a will is a unilateral transaction; the rules on the invalidity of transactions provided for in Chapter 9 of the Civil Code of the Russian Federation (Articles 166-181 of the Civil Code of the Russian Federation) apply to it.
The Plenum of the Supreme Court of the Russian Federation in Resolution No. 9 of May 29, 2012 “On judicial practice in inheritance cases” in paragraph 27 explained that wills are considered invalid transactions due to nullity if the requirements established by the Civil Code of the Russian Federation are not met: possession by the citizen making the will , at this moment full legal capacity (clause 2 of Article 1118 of the Civil Code of the Russian Federation).
And so the trial began. The grandfather’s medical documents from medical institutions for the period before and after the signing of the order to cancel the order were requested, and witnesses were questioned. But diagnoses are diagnoses, the opinion of an outside observer about a person’s behavior is only his opinion as an ordinary person, and the court requires evidence - “admissible and indisputable.”
After re-obtaining the client's consent, a petition was submitted to the court to order a post-mortem forensic psychiatric examination.
And the anxious wait for the competent opinion of specialists began. And it was alarming because our unscrupulous heir of the first priority received from a notary a certificate of entry into the rights of inheritance according to the law and began to actively sell this very inheritance.
But now the hour has come. The expert opinion has arrived and a court hearing has been scheduled. 5 minutes before the process, we get acquainted with the conclusions of the experts and they fully confirm our references to diagnoses, namely that, at the time of signing the order to revoke the will, the grandfather was not fully capable, could not be responsible for his actions and did not understand their consequences. The court satisfied our demands in full.
The defendant attempted to appeal this decision on appeal, but the Kemerovo Regional Court did not find any violations of substantive or procedural law and did not overturn the decision.
The study of the medical diagnosis and its correct assessment from a judicial perspective by the company’s lawyer were confirmed in the forensic expert report, which led to a positive decision by the Kuznetsk District Court of Novokuznetsk
We helped our client inherit an apartment in Novokuznetsk.
25.01.2021
Certificates may be requested by buyers or other participants in the transaction.
There are many reasons for this. For example, buyers may ask for certificates for the following reasons: the owner is elderly; there are suspicions that the owner abuses alcohol; there are suspicions that the owner is/has been taking drugs; there are suspicions about the adequacy of the owners, etc.
The buyer can specifically ask for certificates, because according to the law they are not required when registering a transaction. In turn, the owner may refuse. As you can see, everything here is by agreement of the parties.
Documents for selling an apartment with instructions on where and how to obtain them
The same situation applies to buyers with a mortgage. Before giving a citizen money to buy an apartment, bank employees check the apartment and the sellers. Each bank has a list of requirements and mandatory documents that must be submitted for verification.
For example, VTB Bank requires certificates from owners of retirement age only. And Gazprombank requires these certificates from all owners, regardless of age. At least this is the case in St. Petersburg.
As a result, if, at the “request” of the bank, you do not provide these certificates, it will simply refuse to issue a loan for the purchase of an apartment. This means you will have to look for another buyer. And “mortgage holders” in the real estate purchase and sale market make up half of the total number, according to statistics for 2021 from DOM.RF.
If the purchase and sale transaction is certified by a notary, he may also ask the sellers to show certificates. The notary certifies the signatures in the purchase and sale agreement and thereby confirms that the parties to the transaction were legally capable and understood their actions. If the owners do not provide certificates, the notary will refuse to certify the transaction.
Personally, I always advise sellers to make concessions. It’s not difficult to get certificates, and you never want to lose potential buyers.
Certificate of legal capacity of an elderly person
I apologize right away if there is a lot of text, I tried to formulate the idea in as much detail as possible
In January, an elderly father (66 years old) was diagnosed with dementia (there is a psychiatrist’s report). Since February 2021, the patient is bedridden, lies on the bed, does not turn over. There is a certificate of non-transportability from the clinic with the seal and signatures of doctors from the medical commission.
You need a disability, the PND said first you need to deprive of your legal capacity. Due to lack of time, only in May I filed a claim for deprivation of legal capacity and attached a certificate of non-transportability. In June, a response came from the PND and the court that the PND experts could not conduct a forensic psychiatric examination due to lack of time. A little later, an expert called me and asked when I could take my father for examination. After calling the judge's assistant, it turned out that the judge ordered him to undergo an examination in person. Those. a non-transportable bedridden patient with a certificate of non-transportability was sent to be transported in person for an examination.
In July, I first wrote a statement, after the petition in which I indicated that there was a certificate and asked to schedule an examination either in absentia (asked whether all the documents/papers for this were available and if something was missing asked to indicate which ones), or if it was impossible in absentia, then on home. According to the law, examinations for non-transportable bedridden patients are carried out either in absentia or at home (I know that experts have the right to go to my home once a month in these cases).
My father has chronic diseases - diabetes mellitus type 2 (for 10-12 years already), complications in the form of diabetic polyneuropathy of both legs and one arm, cerebral ischemia, in May he suffered a stroke and was diagnosed with community-acquired pneumonia, which was only just dealt with (not completely ), has difficulty swallowing, speaks almost inaudibly, and often experiences shortness of breath.
I’m worried that during the examination I might become infected with coronavirus, because... It is still carried out in person in a public place (as far as I know, while there is a threat of infection, for people at risk like my father, all such procedures as examinations are carried out at home or in absentia).
I have questions and require advice:
1. Is the judge’s action legal?
2. What can be done in my case and where/who should I contact?
3. Is there a certain form of certificate of non-transportability? In our direct text it is not written “non-transportable”, because. at the clinic they don’t know whether such a form of certificate even exists, so when I asked for this certificate, they gave me the text “the ability to self-care has been completely lost, needs constant outside care.”
4. Could the judge decide that this certificate is not a certificate of non-transportability and, on the basis of this, refuse the examination at home/in absentia?
5. Maybe it’s worth contacting the experts who are conducting the examination and explaining the situation? But the judge still makes the decision...
Why certificates are important
The most important concern is given by Art. 177 of the Civil Code of the Russian Federation - “a transaction made by a citizen, although legally competent, was at the time of its completion in such a state where he was not able to understand the meaning of his actions or manage them, may be declared invalid by the court at the claim of this citizen or other persons, whose rights or interests protected by law are violated as a result of its commission.”
According to the court, a psychoneurological examination of the seller’s condition will be carried out - through communication with him and by analyzing his illnesses from his medical card. The expert will make a decision whether the seller understood the meaning of his actions or not.
If the seller did not understand the meaning of his actions, then the buyer’s apartment is “taken away”, and the seller or his heirs must return the money for it. This is written in paragraph 1 of Art. 171 of the Civil Code of the Russian Federation - “each of the parties to such a transaction is obliged to return to the other everything received in kind, and if it is impossible to return what was received in kind, to reimburse its cost.” The only problem for the buyer is that the seller may not have this money - he spent it or hid it. Then this money will be transferred to the buyer in parts from the income of the seller or heirs. As a result, you will be able to return the entire amount in 20–30 years. Or not return it at all if they have no official income.
Therefore, I repeat once again: if sellers are asked to provide these certificates, it is better to do so. More potential buyers, more chances to sell the apartment.
- How to sell a mortgaged apartment
- Is it possible to sell an apartment with illegal redevelopment?
- How to obtain guardianship permission
If you have questions, you can consult for free. To do this, you can use the form below, the online consultant window and telephone numbers (24 hours a day, seven days a week): 8 Moscow and region; 8 St. Petersburg and region; all regions of the Russian Federation.
What is a ND, PND certificate and how to get it?
These documents are obtained at the drug treatment clinic and the psychoneurological clinic (ND and PND). Any citizen can order IPA and ND certificates, not only for real estate transactions, but also for employment.
Why is it necessary to obtain these documents:
- More than 1,000 illegal transactions with real estate are carried out in Moscow every year. The criminal scheme is based on the insanity of the owner, his registration in the PND or ND, incomplete ownership rights due to any restrictions or inferiority in psychological health.
- It is believed that a good realtor always provides his clients with a complete package of documents, which also includes ND and IPA certificates. As a result, this speeds up the registration procedure.
Refusal to provide a document can be regarded as an alarm bell, and in the absence of a certificate, it is better to refuse any transactions altogether, even from paying a deposit. If the court upholds the seller's limited title, the buyers will lose their deposit and may not get their rent back on the apartment or house. You can get more information about why a ND and PND certificate is needed and what its cost is at the Star Service Cadastre and Registration Center.
Answers to questions on the topic
At what age is a certificate from PND/ND issued?
Since the purchase and sale transaction must be carried out with a legally competent person, that is, one who has reached the age of 18, a certificate can be issued from this age.
There are situations when the seller of a home is a minor aged 14 to 18 years . In this case, the seller is a partially capable person.
He can make real estate transactions, but only in the presence of his parents or legal representatives. Therefore, in this case, a parent or legal representative can receive a certificate from the PND.
What if the owners of the apartment are two people?
If there are several owners, then certificates from the IPA or ND must be requested from each of them.
What is the validity period of the certificate?
The validity period of a certificate from a narcologist and psychiatrist for the sale of an apartment is 3 months.
To ensure the purity of the transaction for the purchase and sale of an apartment, one of the parties may ask the other to present a certificate of legal capacity.
Obtaining a certificate from the PND or ND is voluntary, but if we are talking about an elderly person, one who behaves inappropriately or has obvious signs of deviation, then a certificate is needed. And if a person refuses to provide it, then it is better to refuse the deal and find another housing option.
You can get a certificate from the state psychoneurological or drug addiction clinic at the place of residence of the person in respect of whom the document is being drawn up.
The need to obtain a certificate from the PND or ND
Do you need a certificate for any real estate purchase and sale transaction? No, this document is not mandatory; without it, the transaction will be registered, but the consequences may be unfavorable.
If the seller or buyer is silent about the fact that he is registered with a psychoneurological or drug dispensary, then such a transaction may subsequently be challenged and declared invalid.
In Russia, there are situations where scammers fraudulently force mentally ill people to sign documents for the sale of an apartment, thereby depriving them of housing. Relatives of the sick sellers filed a claim in court to declare the transaction invalid and, after lengthy meetings, finally returned the apartment.
Useful tips
- Experts advise ordering the document immediately before signing the purchase and sale agreement. In 1–3 months, the situation with the mental health of the seller may change and it is possible that at the time of the transaction he will already be an incapacitated person.
- The certificate itself is not significant evidence that the seller was a legally competent person at the time of signing the agreement. The court may not take this document into account at all and the plaintiff will win the case. Therefore, even if you have a certificate, it is advisable to contact a notary to draw up the contract. This specialist will confirm with his signature the good will and capacity of both parties to the transaction at the time of signing the documents. And if there are doubts about the seller, the notary can independently make a request to the PND or ND, finding out whether the citizen is registered, whether he was previously treated at a dispensary or not.
- If the seller refuses to provide a certificate from the PND or ND, then such inaction should be an alarm bell for the buyer. In this case, it is better to refuse to complete the transaction.
