You can only buy an apartment from the owner or a person acting by proxy. After all, only the owner can dispose of real estate, as well as other property. But what if the apartment that the buyer chose on the market is sold by a person declared incompetent, how to buy it? So, what is the difference and how is a transaction to purchase real estate from a person deprived of legal capacity, what documents for this need to be submitted to Rosreestr to register the transfer of rights.
— If it is known that the seller is an incompetent person, then the transaction is made with the permission of the guardianship and trusteeship authorities, as well as transactions involving minor children. The guardianship authority considers the circumstances of the purchase and sale so that the person under guardianship and trusteeship is not infringed on his rights or loses real estate as a result of the transaction. This is, perhaps, all that distinguishes the purchase of an apartment from an incapacitated citizen. There is nothing complicated and nothing dangerous in a transaction when it is known that the seller is declared incompetent. It’s another matter if nothing is known about the person’s incapacity, there is no suspicion that at the time of the transaction he did not understand the meaning of his actions, but later this circumstance is used by scammers to invalidate the transaction, and such schemes for deceiving buyers, alas, are present on the market. But this is another side of the issue...
— To understand the difference and how a transaction to purchase real estate from a person deprived of legal capacity is completed, we must remember which persons are considered deprived of legal capacity. Only a court can deprive a person of legal capacity. The reason for this court decision is mental health. A citizen who, due to a mental disorder, cannot understand the meaning of his actions or manage them, may be declared incompetent by the court in the manner established by civil procedural legislation. Guardianship is established over him. According to paragraph 2 of Article 29 of the Civil Code of the Russian Federation, on behalf of a citizen declared incompetent, transactions are carried out by his guardian. That is, a citizen deprived of legal capacity does not lose legal capacity; he can own property and be a party to transactions, in particular, be a seller. Transactions for the purchase of real estate from a person deprived of legal capacity accordingly have two features. Firstly, the transaction is made by the guardian of a citizen deprived of legal capacity. Secondly, such a transaction can only be concluded with the consent of the guardianship and trusteeship authority (Article 21 of the Federal Law “On Guardianship and Trusteeship” dated April 24, 2008 No. 48-FZ). It should also be noted that, as a general rule, real estate owned by a citizen deprived of legal capacity is not subject to alienation. But this rule has exceptions. Thus, in accordance with Article 20 of the law on guardianship and trusteeship, a residential house, apartment, parts of a residential building or apartment belonging to a citizen deprived of legal capacity may be alienated when this citizen changes his place of residence. In addition, real estate owned by a person deprived of legal capacity, in exceptional cases (the need to pay for expensive treatment, etc.) can also be alienated if the interests of the ward require it. As for the documents for registering a transaction... In the case of registering a transfer of ownership when purchasing real estate from a person deprived of legal capacity, the following package of basic documents is submitted to Rosreestr: 1) a contract for the purchase and sale of real estate, certified by a notary (clause 2 of Article 54 of the Federal Law “On state registration of real estate" dated July 13, 2015 No. 218-FZ); 2) permission from the guardianship and trusteeship authority to carry out a transaction to alienate property belonging to an incompetent person; 3) an official document confirming the rights of the guardian (decree establishing guardianship); 4) a court decision declaring a citizen incompetent, which has entered into legal force; 5) receipt of payment of state duty. How can you further protect yourself from the risk of a transaction not being completed or the transaction being declared invalid? — First, let's figure out when a transaction involving a person declared incompetent will be declared invalid. There is a clear answer to this question in the law: when it is discovered that an agreement has been concluded on behalf of the ward without the prior permission of the guardianship and trusteeship authority (Article 21 of the Law “On Guardianship and Trusteeship”). Upon termination of a contract that is declared invalid, the property belonging to the ward is subject to return, and losses caused to the parties to the contract are subject to compensation by the guardian. It is better to additionally protect yourself from failure to complete a transaction or recognition of a transaction as invalid by making sure that the person indicated in the act of the guardianship and trusteeship authority is really the guardian of the incapacitated citizen, and also additionally check whether this person has the right to be the guardian of the incapacitated citizen. It must be remembered that in accordance with Article 35 of the Civil Code of the Russian Federation, minor citizens, citizens deprived of parental rights, as well as citizens who, at the time of establishing guardianship or trusteeship, have a conviction for a deliberate crime against the life or health of citizens cannot be appointed guardians. In the case of purchasing real estate from an incapacitated person, when a guardian or legal representative acts on his behalf, the guardianship and trusteeship authority makes a decision on the basis of a number of documents - passports of the seller and guardian, title documents for the property, documents for the property that will be acquired instead of the one being sold. It is important that the new object is no worse than the one being sold; its parameters must correspond to the one being sold. If the seller is assigned to state support, the guardian opens an account in the name of the ward, where money is received in an amount equal to the price of the apartment. How to protect yourself from scammers? — First of all, request a certificate from a psychoneurological or drug treatment clinic. Also conduct a thorough legal review of the property. Order this service by paying for it. (Thanks to this, you will have a document on hand confirming such an inspection of the purchase object, and this will help prove in court that you acted as a bona fide purchaser. Title insurance of real estate will also help you protect yourself - concluding an insurance agreement against the risk of loss of ownership. However, these are additional costs ( 0.5 - 1 percent per year of the amount in the contract) for several years, until the expiration of the statute of limitations. 1. A citizen deprived of legal capacity does not lose legal capacity, he can own property and be a party to transactions, in particular, be a seller. purchasing an apartment from an incompetent person does not carry additional risks. 2. The transaction is carried out with the permission of the guardianship and trusteeship authorities. 3. The sale is carried out by a person acting in the interests of the incapacitated owner - a guardian. Minor citizens, citizens deprived of parental rights cannot be appointed as guardians rights, as well as those who, at the time of establishment of guardianship or trusteeship, had a criminal record for an intentional crime against the life or health of citizens. 4. The purchase and sale agreement is certified by a notary. 5. To register a transaction, it is necessary to provide permission from the guardianship and trusteeship authority to carry out a transaction for the alienation of property belonging to an incompetent person, a document establishing guardianship, a court decision declaring the citizen incompetent, which has entered into legal force
The Constitutional Court clarified the procedure for providing housing to incapacitated citizens
On February 1, the Constitutional Court issued Resolution No. 3-P in the case of verifying the constitutionality of clause 3, part 2, art. 57 of the Housing Code and Part 3 of Art. 17 of the Law on social protection of disabled people in the Russian Federation. According to the first norm, residential premises under social tenancy agreements are provided out of turn to citizens suffering from severe forms of a number of chronic diseases. Based on the second norm, disabled people and families with disabled children in need of improved housing conditions and registered after January 1, 2005 are provided with housing in accordance with the housing legislation of the Russian Federation.
Refusal to provide a disabled person with housing with increased space for her guardians to live with her
As follows from the case materials, K., a resident of Astrakhan, has been disabled in group I in terms of vision since childhood and needs constant outside care. In addition, she suffers from a severe form of chronic disease, which makes it impossible for citizens to live together in the same apartment. In 2011, K. was declared legally incompetent, and in 2012, her mother, citizen G., was appointed guardian.
Since 2012, G., her husband V. and daughter K. (a family of three) have been registered as needing housing provided under a social rental agreement from the municipal housing stock. At the same time, K. is also included in the list of persons suffering from severe forms of chronic diseases and registered as needing residential premises.
In August 2013, the court granted the prosecutor's claim filed in the interests of the family, obliging the Astrakhan administration to provide it with comfortable housing out of turn under a social rental agreement, taking into account the additional living space provided for people with disabilities. Nevertheless, the appeal overturned the decision and issued a new judicial act, according to which the administration is obliged to provide comfortable residential premises under a social tenancy agreement only to K. as a person suffering from a severe form of a chronic disease specified in clause 4 of part 1 of Art. 51 Housing Code list.
Collection and preparation of documents
Before the sale of real estate, a representative of an incapacitated person must be provided with an appropriate resolution issued by the guardianship authorities. To obtain this document, you must provide the following package of documents:
- Your passport;
- Papers for the apartment intended to be put up for sale;
- Confirmation that the ward will be provided with another housing in place of the place of residence being sold;
- A document from the bank, if there are funds in the current account that have been credited to it.
Upon presentation of the above documents to the guardianship authorities, they will decide whether the sale of real estate by the guardian is possible, or whether this action is contrary to the legislation of the Russian Federation. Consent can be obtained only if the ward citizen receives ownership of another home, corresponding in size and material value to the previous one.
Important! When, as a result of a transaction, an incapacitated person is registered with relatives or close friends, then in this case the guardianship and trusteeship authorities will not give permission to sell the apartment until the property is in the ownership of the warded person.
With some options, it is possible to obtain consent for the sale of real estate even in cases where equivalent housing is not provided. This occurs when the person under guardianship is assigned to various institutions in which maintenance is provided by the state. Such institutions include homes for the elderly or the disabled, and may also be a boarding school for mentally ill people. Then the guardian should provide documents from a banking organization confirming that such a person has received a transfer to their accounts of an amount equal to the cost of the sold apartment, and the money must arrive at the bank before the transaction for the sale of the home.
When selling property by a guardian, if he has not notified and received prior permission from the guardianship authorities, then such an event will be considered illegal and will most likely be canceled through the courts.
To obtain consent to sell real estate, the guardian only needs to provide a passport and a written application to begin the process of considering the possibility of issuing a permit. In this case, it is necessary to collect evidence that the transaction will be carried out in the interests of the incapacitated person, respecting his rights and allowing to improve the conditions of his further residence, which include:
- Papers for housing to be sold;
- Documents for the apartment proposed for purchase;
- Other certificates determining the legal conduct of the transaction.
Sales procedure
To carry out the procedure for selling an apartment of an incapacitated person by a guardian, you need to take the following steps:
- Comply with all legal norms that are provided for in Article 20 Part 1 of the law, according to which an apartment can be sold only when changing place of residence, or to obtain the financial resources necessary to pay for the treatment of a ward;
- If necessary, obtain the consent of the guardianship and trusteeship authorities to conduct the transaction;
- Submit a written application to the relevant guardianship authorities located on the territory of the apartment being sold;
- Within 15 days from the date of filing the application, the guardianship authorities must either allow or refuse this action, and be sure to motivate any of the decisions made;
- Once consent has been received, you can begin to look for a buyer for the property and complete all the necessary paperwork.
What are the pitfalls?
An apartment owner who is incapacitated and lives in another living space is always at risk, since he, more often than others, can become a victim of illegal manipulations when selling real estate. Fraudsters often take advantage of this condition of the person under guardianship to first sell housing, and then invalidate the transaction and cancel its results without returning the funds received. Attackers collect information about lonely people who are under psychiatric care and force them to part with their property in various ways. After the deal is canceled, the money and the sellers can no longer be found, and the affected buyers can do nothing.
Most likely, such actions will be carried out based on trust management of the property of the incapacitated person, therefore, before purchasing a home, it is recommended not only to personally meet with the owner of the property, but also to collect complete information about him. If the person’s incapacity is confirmed, permission must be obtained from the guardianship authorities and all the nuances of the transaction provided for by law must be observed.
If these measures are not carried out, then only a trial can resolve the situation in favor of the buyer, provided that the fraudster is found. But even if you contact the Ministry of Internal Affairs with a corresponding application, the chances of a favorable outcome of the case and the return of your money are very small. Therefore, when conducting real estate transactions, it is recommended to use the services of lawyers specializing in such transactions.
