The rights of minors are noted at the legislative level in Article 60 of the Family Code of the Russian Federation, which determines a child’s ability to own property. If the interests of a minor are infringed, parents or guardians may be held accountable before the law. Guardianship authorities are responsible for ensuring the rights of children. They must agree to transfer the child's property as collateral to the bank. Permission from guardianship authorities for children under 14 years of age is obtained by legal representatives, that is, parents. If you have a passport, the minor must sign a consent to carry out the transaction.
Is it possible to allocate shares to children?
The property rights of the child are enshrined in Art. 60 of the Family Code of the Russian Federation
. It defines the child's right to own property.
If maternity capital was used when purchasing an apartment, then allocating a share for the child becomes a mandatory requirement for completing the transaction.
In order to allocate a share to a minor in a mortgaged apartment, the consent of the guardianship authorities is required to pledge the child’s property and at the same time the consent of the bank to allocate this share.
Permission from guardianship authorities for children aged 0 to 14 years is obtained by their legal representatives; children over 14 years of age receive permission independently, with the consent of their parents or guardians.
In common practice, shares are allocated after the mortgage is repaid and the encumbrance on the property is removed. However, there are situations where separation is necessary before the transaction is completed.
How is a mortgage for a room arranged?
The procedure for obtaining a mortgage for a room in a dorm, as many call a communal apartment, or for a room in an ordinary apartment, is not much different from loan products for purchasing an apartment. One of the main documents is documentary evidence of the refusal of other homeowners to purchase this particular room. Documents must be notarized.
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Allocation of share before mortgage payment
Before paying off the mortgage, the allocation of a share may become necessary if the apartment is purchased using family capital. When using family capital, the parents agree to allocate a share in the property to their children after repaying the loan, which is certified by a notary.
If we are talking about a facility under construction, it will not be possible to immediately allocate a share. It must be allocated before putting the property into operation or before registering ownership of the housing. When constructing a private household, an additional allocation of a share of the land plot will be required.
The guardianship authorities give consent to the execution of the transaction if the rights of the children are stipulated in the real estate purchase and sale agreement. Therefore, the allocation of shares is required before receiving a loan. Banks, in turn, are reluctant to process transactions with an allocated children's share, since problems may arise with the sale of property that belongs to a minor if the borrowers are unable to repay the mortgage loan.
Conflict resolution is possible in several ways
:
- offer the lender another property as collateral;
- transfer other property to minors;
- turn to loyal lenders working according to AHML standards.
Difficulties
There are very controversial issues in mortgage relations:
- Children's rights are not always respected by parents, even when housing is partially purchased with maternal capital.
- The sale of real estate in which there is a share of minors is possible only when the transaction has permission from both the bank and guardianship.
- Although this is prohibited by law, in practice, the child’s new share is often smaller than the previous one.
- A child’s share in property is not a reason not to pay a mortgage; the bank has the right to evict borrowers who have failed “to nowhere.”
To avoid problems when applying for a mortgage, you can use one of the following tips:
- transfer to the bank another apartment in which there are no shares of minors as security for the fulfillment of obligations;
- allocate square meters to the child in another home owned by a close relative.
In these cases, the likelihood of approval of a loan application will increase several times, of course, provided that the borrowers have a good credit history and permanent official work.
Example. The Solovyov family, who have a one-room apartment, decided to improve their living conditions. To do this, young people turned to the bank for a mortgage loan. A loan of 1 million rubles was approved. To avoid problems with the further allocation of shares, the Solovievs were asked to mortgage the old apartment, and in return transfer the children’s two shares to a new mortgaged housing. Which is what the couple did. After 10 years, the mortgage was successfully paid off.
The Solovievs could have disposed of their starting real estate differently. For example, sell it and make a down payment for a mortgage. But in this case, the sale of the old apartment would require permission from the guardianship authorities.
Allocation of share after loan repayment
Within six months after the mortgage is repaid, the legal representatives of minors are required to allocate a share in housing for the children (if necessary). If this condition is not met, the authorized bodies may go to court against the parents, and the maternity capital will need to be returned.
Registration of a share is carried out through the execution of a deed of gift or the signing of an agreement to transfer part of the property to the child. Both methods represent a procedure for the gratuitous transfer of a share in residential real estate.
Both documents contain the following information:
- Information about the participants in the transaction: I.O.F., date of birth, passport details;
- Generic characteristics of the property, its registration number;
- The size of the allocated share;
- If a share is allocated to a minor under 14 years of age, his legal representatives are indicated.
The Law does not stipulate how many square meters should be allocated to a minor; the amount is determined by local authorities. If more children were born in the family during the mortgage payment, then the shares in the apartment are distributed to all children born in a joint marriage between the borrower/co-borrower under the agreement.
What will you need?
The allocation of a share is made by a notary; you will need to pay a state fee depending on the size of the allocated area.
Required documents
The following documents must be submitted to Rosreestr:
- Passports of all parties to the transaction;
- Certificates of marriage, birth of children;
- Documents for the purchased housing: Extract from the Unified State Register of Real Estate, purchase and sale agreement;
- Agreement for the allocation of a share or a gift agreement;
- Receipt for payment of state duty.
It is necessary to write an application for registration of property rights on behalf of all parties to the transaction.
All documents are submitted in original with copies attached.
Agreement on granting minors rights to housing
The agreement is drawn up in the Pension Fund of the Russian Federation before the transfer of maternity capital funds to pay for housing. It contains the obligation of parents to allocate a share to minor children.
The obligation to allocate a share to children lies with the parents with whom there is a proven family connection, i.e. when the child is common in the marriage.
When signing an agreement, the parents of a minor act as his legal representatives if the child is under 14 years old.
The agreement contains the following information:
- FULL NAME. parents, children with passport data, dates of birth;
- Characteristics of the acquired property with generic characteristics;
- Type of ownership, size of shares;
- Documents underlying the transaction;
- Information about MK;
- Condition with redistribution of shares in case of birth of children in the future.
What is a property division agreement
According to Art. 38 of the RF IC, common property can be divided between spouses by agreement. Any real estate acquired during marriage, including a mortgaged apartment, is considered common property.
But there are several features:
- If the down payment was transferred before marriage, this amount is not divided.
- If you bought an apartment in a new building and the ownership was registered before the divorce, everything will be divided between the spouses.
- If the parties have entered into a marriage contract, common property is divided according to its terms. There is no need to enter into an agreement. If the conditions change, an additional agreement to the contract is drawn up.
- The division agreement must be certified by a notary.
Note! By agreement, the property can be divided as desired. But when it comes to a mortgaged apartment, you will need the bank’s permission, since its interests are affected. The procedure must be agreed upon with him.
How to allocate shares in a mortgaged apartment?
The allocation of shares in a mortgaged apartment is carried out in accordance with legal requirements.
Step-by-step instruction
- Once the mortgage loan is repaid, the encumbrance must be removed from the collateral. To do this, you should contact Rosreestr with the appropriate application and documents confirming the absence of mortgage debt. After reviewing the documents, the applicant will be presented with a new Extract from the Unified State Register of Real Estate with no encumbrance on housing.
- After this, the apartment owner has the opportunity to allocate a share.
- Drawing up a written agreement with a notary to transfer part of the property to the child or a gift agreement. Documents are prepared for both parents, for the Pension Fund, for Rosreestr. You will need to submit documents confirming the identities of the parties to the transaction, marriage certificates, birth certificates, an extract from the Unified State Register for real estate, and an agreement on granting housing rights to minors.
- Submitting documents to Rosreestr for registration. An application for registration is submitted on behalf of each owner. It is required to provide a complete package of documents as a notary, and a completed agreement or gift deed.
The state duty for the service will be 2 thousand rubles
.
Documents are submitted to the MFC. The registration period for the transaction is 10 days, then the owners receive a new statement containing information about the owners of the apartment (house) where the minors will be present.
Reasons for refusal to issue a shared mortgage
The applicant will receive a negative decision on the loan in the following cases:
- low income;
- bad credit history;
- the property does not meet the bank's requirements;
- the borrower’s age exceeds the permissible limit (taking into account the loan term);
- no down payment;
- the citizen is not officially employed.
The financial institution is not required to explain the reasons for the refusal.
The buyer has the right to attract a co-borrower, his income will also be taken into account. The property will be divided into parts, the owners themselves will determine the size of the shares.
Required documents
The following documents must be submitted to Rosreestr:
- Passports of all parties to the transaction;
- Certificates of marriage, birth of children;
- Documents for the purchased housing: Extract from the Unified State Register of Real Estate, purchase and sale agreement;
- Agreement for the allocation of a share or a gift agreement;
- Receipt for payment of state duty.
It is necessary to write an application for registration of property rights on behalf of all parties to the transaction.
All documents are submitted in original with copies attached.
Is it possible to select a part?
Allotment of shares is a more than possible procedure. Moreover, parents are increasingly resorting to this opportunity, since the registered share for the child by the time he reaches adulthood will significantly increase in price. There is a list of requirements and conditions, failure to comply with which threatens parents with non-issuance of a loan , and in some cases even deprivation of parental rights:
When moving from one apartment to another with the sale of the first home, according to Art. 292 of the Civil Code of the Russian Federation, parents are required to obtain permission from the guardianship authorities if one of the owners of the previous apartment was a minor.- The area of the purchased property must be greater than or equal to the original area. Moreover, this applies even to those cases when the child is not one of the owners of the original home, but is simply registered there as a member of the family of the home owners. The increase in living space can be confirmed to the guardianship and trusteeship authorities by presenting the main or preliminary purchase and sale agreement.
- New housing should be in a better technical condition than the original one - the year of construction should be more modern, the wear and tear of the house, on the contrary, should be less, and so on.
Is it possible to sell an apartment?
The biggest problem in such a transaction is that the law is written in general phrases, and the guardianship authorities bear a huge responsibility for the child. How do the guardianship authorities approach the case? The fact is that when selling an apartment whose owner is a minor citizen of the Russian Federation, it is necessary to obtain the appropriate permission. The country does not have a unified regulatory framework regulating this issue, so the authorities rely on internal standards, which are sometimes very difficult to understand.
Read more: How to get a certificate of low-income family for a student
The main role of the guardianship authorities in the transaction is to protect the rights of the child by exercising strict control. In this case, it is necessary to distinguish between situations when a minor is simply registered in an apartment, and when he has a share in it. The first situation does not bring problems, because the guardianship authorities do not have powers in this area. Children can enter into real estate transactions, but their actions are limited by law. Thus, it is necessary to have the written consent of the legal representatives of the minor.
How to draw up a deed of gift for a mortgaged home? Practical advice.
Remember that it is not profitable for the bank when they give away an apartment that is mortgaged, because there are no guarantees that the new owner will be able to pay the mortgage, as the previous owner did, so to prove it, you should go to the banking organization with a certificate and salary and convince that if housing will be donated, the mortgage will be repaid.
If they refuse you, then it will be impossible to convince you, and if they give consent, then you collect the required papers, and then go to the notary to draw up a new gift agreement.
Waiting time: up to one month.
Pros and cons of the deal
The main advantage is the price: a share is much cheaper than a separate apartment. You can subsequently sell your square meters and expand your living space.
Cons of the deal:
- the choice of real estate is limited;
- it is necessary to obtain the consent of all owners;
- you will have to live in the same territory with strangers;
- the property remains encumbered until the debt is fully repaid.
When buying a share in an apartment, a person must understand: housing issues are resolved with other owners. The main thing is to find adequate neighbors, then living together will be peaceful and comfortable.
Benefits for young families
Sberbank currently cannot offer targeted preferential shares for the purchase of a share in an apartment. But potential applicants can take advantage of the “Young Family” program, which operates as part of mortgage lending for the purchase of secondary housing.
Terms of a mortgage loan from Sberbank for a share of an apartment for young borrowers:
- for a family of two people there should be 42 sq. m of total area, of three - 18 sq. m for each;
- the occupied living space does not meet established sanitary and technical standards;
- the borrower's family lives together with a person suffering from a serious illness (the latter is supposed to live separately);
- spouses must not be older than 35 years (each).
If all these requirements are met, the applicant can count on a subsidy from the state in the amount of up to 40% of the cost of the purchased object. The amount of the benefit is determined on an individual basis.
The nuances of registering a minor child in an apartment with a mortgage
It is quite possible that after reading this, someone will have a gloomy picture when possessive children unwittingly become the cause of many problems for parents. However, this is not quite true. In some cases, there are pleasant moments associated with children even in such a serious matter as a mortgage.
Property belonging to another person, a child in this case, is not subject to division. Another reason to register an apartment for a child is the safety of property.
In order for the bank to make concessions and allow the deed of gift to be issued, it is necessary to prove the feasibility of the operation. This could be, for example, a sharp deterioration in the health of the donor, or his advanced age.
Which banks offer custodial mortgages?
As we have already said, not all credit institutions handle mortgages with children’s shares. First of all, you should contact large financial institutions. Which banks allocate shares to minors:
- Sberbank makes decisions individually.
- VTB can give consent, but subject to not exceeding a certain percentage of the property rights belonging to the child.
- Uralsib is also ready to accept an apartment with a minor’s share as collateral if there is permission from the guardianship for the mortgage.
- DOM.RF, formerly known as AHML. Here you can choose the optimal loan terms if you have guardianship requirements.
Even if you receive a positive response from the bank, there is no certainty that the guardianship will approve the purchase of an apartment with a mortgage.
It is quite difficult to get a mortgage for living space with the allocation of part of it for children; the risks are too great for the bank. Therefore, we recommend that you consider alternative solutions to the problem. In particular, it is possible to pledge other property where the child does not have ownership rights. Or try to delay the allocation of the share, as is done when using maternal capital. It is best to seek the help of a lawyer who is knowledgeable in housing issues, so as not to encounter claims from regulatory authorities later.
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Author:
Mortgage specialist Maria Yurievna Sokhan
Date of publication September 25, 2019 September 25, 2019
