Alienation of property of minors

For children under 14 years of age (minors), transactions for the disposal of real estate can be carried out on their behalf only by their legal representatives, that is, parents, adoptive parents or guardians (Clause 1 of Article 28 of the Civil Code of the Russian Federation). Children aged 14 to 18 years carry out these transactions with the written consent of their parents, adoptive parents or trustees (Clause 1 of Article 26 of the Civil Code of the Russian Federation).

At the same time, legal representatives do not have the right to make and do not have the right to give consent to transactions for the alienation of the child’s real estate without the prior permission of the guardianship and trusteeship authority. Such alienation itself is possible in certain cases, for example, when a child changes his/her place of residence, the need to pay for expensive treatment, and in other exceptional cases (Clause 2, Article 37 of the Civil Code of the Russian Federation; Part 2, Article 19, Part 1, Article 20, Part. 1 Article 21 of the Law of April 24, 2008 N 48-FZ). The guardianship and trusteeship authorities, checking the legality of a transaction for the alienation of real estate, determine whether this transaction corresponds to the interests of the minor and whether it does not infringe on his property rights or legal interests. However, the law does not establish specific circumstances under which the guardianship and trusteeship authority has the right to refuse to issue permission to carry out a transaction. In practice, the guardianship and trusteeship authorities may give permission to complete a transaction if certain conditions are met, for example, when purchasing another home for the child, which must be equivalent to the one that previously belonged to him, i.e. no less in area and value than the alienated property. Less often, the guardianship and trusteeship authorities give permission to complete the transaction, subject to the transfer of funds from the sale of the apartment to the child’s bank account. To sell an apartment registered in the name of a child, we recommend following the following algorithm. Step 1. Contact the guardianship and trusteeship authority for preliminary permission to complete the transaction. Sample list of documents to the guardianship and trusteeship authority To obtain permission from the guardianship and trusteeship authority to complete a transaction, the following documents may be required: 1) an application from both parents (or persons replacing them) (issued in the guardianship and trusteeship authority); 2) passports of parents (legal representatives); 3) child’s birth certificate; 4) consent of a child over 10 years of age to alienate the apartment; 5) consent of the owners of the residential premises to the alienation of the share of housing being sold (issued by the guardianship and trusteeship authority or by a notary); 6) a copy of the passports of all owners of residential premises; 7) certificate of ownership of the apartment or an extract from the Unified State Register of Real Estate (Unified State Register of Real Estate until 01/01/2017); act of transfer of an apartment - in case of privatization; 9) extract from the Unified State Register of Real Estate about the property; 10) floor plan and explication for the apartment; 11) report on the market value of the property; 12) a single housing document or an extract from the house register and financial personal account; 13) similar documents for the purchased apartment; 14) a bank statement confirming the fact of opening a current account in the child’s name (in the case where the condition for issuing permission to complete a transaction is the transfer of funds from the sale to the child’s account). The period during which the guardianship and trusteeship authority must issue the applicant a preliminary permit or refusal to issue it in writing is 15 days from the date of filing the application for such permission. In this case, the refusal must be motivated. It can be challenged in court (Part 3 of Article 21 of Law No. 48-FZ). Step 2. If you have prior permission to complete the transaction, enter into a purchase and sale agreement for the apartment. The purchase and sale agreement for an apartment is concluded by the parties in writing and is subject to notarization. It must contain the data necessary to unambiguously identify the apartment (address and actual area), as well as its cost (clause 1 of article 158, article 554, 555 of the Civil Code of the Russian Federation; part 2 of article 54 of the Law of July 13, 2015 N 218-FZ). An essential condition of the apartment purchase and sale agreement is the mandatory indication of all persons who, in accordance with the law, retain the right to use this apartment after its acquisition by the buyer, indicating their rights to use the apartment (Clause 1 of Article 558 of the Civil Code of the Russian Federation). Note! Notarization of an agreement is subject to a state fee, the amount of which depends on the value of the property (clause 5, clause 1, article 333.24, paragraph 2, clause 5, clause 1, article 333.25 of the Tax Code of the Russian Federation; Letter of the Federal Tax Service dated January 26, 2016 N 168/03-16 -3). Step 3. Prepare documents to register the transfer of ownership. For state registration of the transfer of ownership of an apartment, in particular, the following documents will be required (parts 1, 2, article 14 of Law No. 218-FZ; paragraph “a”, paragraph 1, article 2, parts 1, 7, article 21 Law of July 3, 2016 N 360-FZ): 1) application for state registration of transfer of ownership (to be completed immediately before submitting documents); 2) identification documents of the applicants, including the child’s passport (for children from 14 to 18 years old) or the passport of the legal representative and the child’s birth certificate (for children under 14 years old inclusive); 3) a certificate of state registration of the child’s ownership rights to the apartment or an extract from the Unified State Register of Real Estate (until 01/01/2017 - Unified State Register of Real Estate); 4) purchase and sale agreement (notarized) and deed of transfer for the apartment. At least two copies must be presented, one of which is the original; 5) permission (consent) of the guardianship and trusteeship authority to dispose of property of persons under the age of 14, or permission (consent) of the guardianship and trusteeship authority to give consent to minors aged 14 to 18 by legal representatives (parents, adoptive parents, trustees) ; 6) written consent of the parents, if the object is alienated to minors aged 14 to 18 years; 7) extract from the house register (certificate of persons having the right to use residential premises). Step 4. Submit documents for state registration together with the buyer. The application and the necessary documents can be submitted to the territorial office of Rosreestr in one of the following ways (Parts 1, 2 of Article 18 of Law N 218-FZ): - in person (or through a representative by proxy) to the Rosreestr office or MFC, including regardless of the location of the property according to the list of departments that carry out reception on an extraterritorial basis, posted on the website of Rosreestr, as well as the authorized person of Rosreestr during on-site reception; — by postal item with a declared value upon forwarding, an inventory of the contents and a notification of delivery; — in electronic form via the Internet, including through the Unified Portal of State Services and the Rosreestr website. The state duty for state registration of ownership of real estate on the basis of a purchase and sale agreement is paid by the buyer. Consequently, the seller does not pay the state duty. The state fee for state registration of ownership of an apartment is 2,000 rubles. (Clause 22, Clause 1, Article 333.33 of the Tax Code of the Russian Federation). Note! The state duty is calculated taking into account a coefficient of 0.7, subject to filing an application for registration and paying the state duty through the Portal of State and Municipal Services (clause 4 of Article 333.35 of the Tax Code of the Russian Federation). Submission of a document confirming payment of the state fee along with the application is not required. The applicant has the right to do this on his own initiative. However, if there is no information about the payment of the state duty in the State Information System on state and municipal payments, after five days from the date of filing the application, the registration authority returns the application and the documents attached to it without consideration (part 7 of article 18, paragraph 3 of article 25 Law N 218-FZ). The registration period on the basis of notarized documents is no more than three working days from the date of acceptance by Rosreestr of the application and necessary documents, and in the case of submitting the application and documents through the MFC - five working days. If documents are sent in electronic form, registration is carried out within one business day following the day of receipt of such documents (clauses 9, 10, part 1, article 16 of Law No. 218-FZ). Note! Sale of an apartment that was owned by a child for less than three years (if the apartment was purchased before 01/01/2016) or less than the minimum period established by Art. 217.1 Tax Code of the Russian Federation (if the apartment was purchased after 01/01/2016), entails the obligation to submit a tax return and pay personal income tax (clause 2, clause 1, article 228, clause 1, article 229 of the Tax Code of the Russian Federation; clause 3, article 4 of the Law dated November 29, 2014 N 382-FZ). When declaring income from the sale of an apartment, you have the right to declare a property tax deduction (clause 1, clause 1, clause 1, clause 2, article 220 of the Tax Code of the Russian Federation). From the moment the apartment is sold, the obligation to pay property tax for individuals ceases (Articles 400, 401 of the Tax Code of the Russian Federation).

Transactions with property of minors

In accordance with Article 37 of the Civil Code of the Russian Federation, all transactions with property owned by minors are carried out exclusively with the prior consent of the guardianship and trusteeship authority.

The child’s property includes real estate, inherited property (housing, cars), securities, and cash.

Preliminary consent for the alienation of residential premises, among the owners of which are minors, is issued, as a rule, subject to the simultaneous acquisition in the name of the child of an equivalent or larger living space, which is an effective measure to protect the rights of children, regardless of their category (orphans and children left without parental care, children from disadvantaged families, children living with their parents).

When deciding on the issue of issuing preliminary permission for a transaction to alienate a child’s residential premises, the guardianship and trusteeship authorities are guided by the following provisions of the law:

Article 37 of the Civil Code of the Russian Federation - a guardian or trustee of a minor has no right, without the prior consent of the guardianship and trusteeship authority, to enter into transactions for the alienation of property belonging to the minor.

A guardian, trustee, their spouses, close relatives do not have the right to enter into transactions with the ward, with the exception of the transfer of property to the ward as a gift or for free use, as well as to represent the interests of the ward when concluding transactions or conducting legal cases between the ward and the spouse of the guardian or trustee and their close relatives.

Article 60 of the Family Code of the Russian Federation - when parents exercise powers to manage property belonging to a minor, they are subject to the rules established by civil legislation regarding the disposal of the property of a ward (Article 37 of the Civil Code of the Russian Federation)

Article 26 of the Civil Code of the Russian Federation establishes the legal capacity of a minor who has reached the age of 14 years. Such a minor must have a passport. He submits applications for permission independently, acting with the consent of his parents.

Article 28 of the Civil Code of the Russian Federation establishes the procedure for legal representatives to act on behalf of their minor children under the age of 14 years.

Article 292 of the Civil Code of the Russian Federation: alienation of residential premises, if minors, incapacitated or partially capable family members of the owner live in it, if this affects the rights or legally protected interests of these persons, is carried out with the consent of the guardianship and trusteeship authority. In particular, permission from the guardianship and trusteeship authority is necessary if: - the right of use in the residential premises being sold is recognized for a minor placed in foster care in a state institution; — the family is recognized as dysfunctional and is registered with the social protection authorities; - the family includes a minor or incapacitated adult citizens over whom guardianship has been established.

Article 2 of Federal Law No. 154-1 of July 4, 1991. “On the privatization of the housing stock in the Russian Federation - the privatization of residential premises in which minors live is carried out only with the participation of minors.

Article 74 of the Federal Law “On Mortgage” No. 102-FZ of July 16, 1998 - mortgage of residential premises or apartments owned by minors, partially capable or incompetent persons over whom guardianship (trusteeship) has been established is carried out in the manner established by the current legislation for transactions with the property of minors.

An approximate list of documents required for submission to the guardianship and trusteeship authorities

1) an application from the legal representative of a minor under the age of 14 for permission to alienate residential premises belonging to the minor; 2) an application from a minor aged 14 to 18 years and an application from his legal representative to allow the legal representative of the minor to consent to the alienation of residential premises belonging to the minor;

Applications are accepted with mandatory identification of the citizens applying, which is recommended to be noted on the application. The text of the application must contain: - information about the category of the transaction being made (exchange, sale, etc.) indicating the existing share of the minor in the right of common ownership and acquired as a result of the transaction; — reasons for the transaction (moving away, purchasing a larger living space, moving to a new place of residence, etc.); - obligations of a minor aged 14 to 18 years, a legal representative, regardless of the age of the minor, to provide a copy of the document for residential premises acquired in the name of the minor as a result of the transaction; 3) a statement from relatives about their consent to accept a minor for temporary residence before purchasing residential premises in cases where the sale of housing is carried out in connection with participation in shared construction; 4) written consent of the owners for the sale of residential premises purchased by a family, including minors; 5) copies of passports, birth certificates of minors; 6) copies of title documents for residential premises that are alienated and that are acquired as a result of a completed transaction; 7) a copy of the technical passport for the residential premises indicating the percentage of wear; if necessary - an inspection report of the residential premises; an act of inspection of residential premises purchased outside the city of Chelyabinsk, and the conclusion of the guardianship and trusteeship authorities at the location of this residential premises on the possibility of a minor living in it; availability of conditions for minors to receive education and medical care; employment opportunities; 9) copies of agreements for shared participation in housing construction; 10) certificate of registration at the place of residence of the minor; 11) a copy of a personal bank account in the name of a minor for crediting funds from the sale of his share in the ownership of residential premises, if there is no need to purchase other housing; 12) in case of separation - copies of supporting documents (divorce certificate; copies of title documents for all residential premises, etc.); 13) other documents necessary at the discretion of the guardianship and trusteeship authority to protect the housing rights of minors.

Preliminary permission for the alienation of residential premises is usually issued within 10 to 15 days. However, in complex or controversial situations, this period may be longer. Permission to alienate residential premises is issued by a resolution of the head of the district administration, which clearly sets out the conditions under which this alienation is possible.

If, as a result of the transaction, the actual living conditions of minors worsen, or their share of property decreases, the guardianship and trusteeship authorities have the right to decide to refuse to issue preliminary permission to complete the transaction. Citizens have the right to challenge a written refusal by the guardianship and trusteeship authorities in court.

After completing the transaction, legal representatives are required to submit to the Department of Social Protection of the Population, within a specified period, copies of title documents for the acquired residential premises in order to confirm compliance with the rights and interests of minors.

Documents for guardianship authorities

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Documents for guardianship authorities

List of documents required to obtain permission from the guardianship and trusteeship authorities for an apartment purchase and sale transaction

In fact, this list of documents is required not only for purchase and sale, but also for exchange, donation, determination of shares, rent, etc., where minor children are the owners.

Application from the parents of the minor, and in their absence - a document confirming this fact (death certificate, court decision on deprivation of parental rights, court decision recognizing the parent as missing, etc.). The personal presence of both parents in the guardianship and trusteeship department is required!
Statement from a minor participating in the transaction who has reached the age of 14.
Child's birth certificate, parents' passports.
Documents confirming ownership of all residential premises involved in the transaction.
BTI certificates on the estimated value of all residential premises involved in the transaction.
Explication and floor plan (cadastral plan) for all residential premises involved in the transaction.
Extracts from house books for all residential premises participating in the transaction (originals only), copies of financial personal accounts for all residential premises participating in the transaction (originals only) or the Unified Housing Document (UZhD)
Certificates of debt from the EIRC for all residential premises involved in the transaction (optional).

Applications must be dated and signed in the presence of a specialist from the guardianship and trusteeship department. NOTES:

the Department of Guardianship and Trusteeship accepts applications from citizens only if they provide a complete package of documents for all residential areas involved in the transaction;

The originals of all documents along with their copies are submitted to the guardianship and trusteeship department;

The deadline for preparing administrative documents is one month from the date of writing the applications, while the following are not taken into account as valid reasons for speeding up the preparation of orders:

expiring deadlines for documents submitted for consideration,
expiring deadlines for making deposits, deposits for apartments,
any oral or written agreements between the parties, notaries, companies, etc.

All documents submitted for consideration to the guardianship and trusteeship department must not have expired issuance dates. Changes and additions may be made to the specified list of documents depending on the nature of the transaction.

Sample parental statement

Note: if children are not the owners of the apartment, then permission from the guardianship and trusteeship authorities for a real estate transaction is not required. The exception is cases where the rights of minors were violated during the privatization of an apartment.