What is a land exchange agreement, how to write and register it?

The history of the emergence of a barter agreement is deeply rooted in the process of formation and development of civil law relations within society. According to its terms, one participant undertakes to transfer his ownership rights to any product to another in exchange for providing exactly the same rights to the product he needs. The subject of such a transaction is most often real estate, being the most significant aspects in the life of any person. So, let's look at the barter agreement in detail.

Concept

A land exchange agreement is a document fixing the rights and desire of the two parties to exchange plots of land. Based on paragraph No. 3, Article No. 3 of the Land Code of the Russian Federation, such an exchange agreement is regulated by Civil Legislation .

This implies that the contract for the exchange of land will be drawn up based on:

• to the rules from articles No. 454 - No. 491, as well as No. 549 - No. 557 of the Civil Code of the Russian Federation;
• to Article No. 37 of the Land Code of the Russian Federation “Features of the purchase and sale of land plots.”

Features and nuances

If you want to carry out the procedure for exchanging shares of apartments, you need to obtain the consent of the remaining owners. It is important to find out in advance how commensurate your share is with the other one offered for exchange. If not, find out the amount of the surcharge. To avoid paying tax, you can register a gift between relatives.

During the process, many nuances can arise. That is why it is important to involve a competent notary in the procedure, who knows all the “pitfalls” in advance and will be able to initially draw up a document that is correct, from a legal point of view. Contact our notary office to protect yourself from unequal transactions and fraud. Ivanov Boris Sergeevich is an experienced specialist who will help you draw up an exchange agreement quickly, legally and on the most favorable terms for you.

Treat your share of property responsibly, because, sadly, the world is full of people who want to deceive you.
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Underwater rocks

When concluding an agreement for the exchange of real estate, each party must pay attention to the following information:

1. Information must be entered about:
   the size of the plot and its location;
2. list of lands, purpose of exploitation;
3. price.
4. The objects of sale and exchange are plots registered in the cadastral register.
5. The document being drawn up must contain the following information, based on the requirements of paragraph 2 of Article No. 8 of the Land Code of the Russian Federation and paragraph 1 of Article No. 18 of the Law on State Registration of Rights:
   location of the site;
6. cadastral number;
7. category of land and permission for its exploitation.
8. The land resource should not be encumbered.
9. The site should not be in the status of an easement.
10. The land plot should not be pledged to a banking institution.

Making a deal

Exchange implies that the property being exchanged must be transferred from hand to hand simultaneously with the signing of the contract.

Expert opinion

Romanov Vyacheslav Ignatievich

Lawyer with 6 years of experience. Specializes in the field of civil law. Extensive experience in drafting contracts.

In relation to a land plot, this rule does not quite work, since ownership of land plots is subject to state registration.

For such cases, there is a special procedure for ending the contract, in which counterparties can agree on the deadline for completing the transaction not at the time of signing, but at the time of submitting the contract for registration to Rosreestr.

Registration procedure

When drawing up an agreement to exchange a land plot, relations between the parties to the transaction are regulated by the Land and Civil Code.

Attention! The subjects of such relations can only be those persons to whom the ownership right is registered.

The algorithm for drawing up a land exchange agreement can be divided into several stages : collecting documents and drawing up an exchange agreement for a land plot.

The agreement must be drawn up:

• in accordance with Article No. 550 of the Civil Code of the Russian Federation;
• the structure of writing is regulated by the Letter of Roskomzem dated October 19, 1994, No. 2-16/1629;
• after the site has been assessed and a certificate of the assigned cadastral value has been provided.

List of all required documents

List of required documents for exchanging a land plot:

1. copies of personal documents: passports, tax identification numbers of the parties to the transaction;
2. documents for the land plot;
3. certificates confirming the absence of encumbrances or restrictions on the land;
4. an act of establishing a standard price for exchanged plots, issued by authorized land management bodies;
5. summary statements of valuation of buildings located on the exchanged plot of land;
6. cadastral passports;
7. barter agreement.

Contents of the agreement

The following must be included in it:

• name and date of conclusion of the contract in words;
• place of conclusion of the document;
• personal data of the two parties: Full name the participant in the transaction in full, date of birth, passport details and which authority issued the document, place of registration and actual address of residence;
• subject of the agreement;
• encumbrances of the exchanged plots;
• restrictions on the use of exchanged plots;
• rights and obligations of the parties;
• responsibility of participants;
• final provisions;
• addresses, bank details of areas of contractual relations;
• endorsement of the document with signatures; annexes to the agreement;
• receipts confirming payment of the state fee for registering the exchange agreement and for issuing a certificate certifying the right to property.

Important points that transaction participants should pay attention to are:

1. A clause on restrictions or encumbrances on the areas selected for exchange;
   if a restriction is imposed on the site by a public easement, then the owner must provide a regulatory legal act that fixes the reason and duration of the restriction;
2. if a plot is restricted by a private easement, the owner must provide an agreement of adjacent landowners and a court decision.
3. The clause defining the subjects of the agreement and their parameters.
4. The point is the responsibility of the parties if the plots are not equal in price.
5. Paragraph final provisions.
6. The party(ies) bearing additional costs associated with the execution and registration of the transaction.

Mandatory land assessment

If the owner of a land resource has decided to exchange a plot for new land, then he is obliged to conduct an assessment of the land resource in his ownership , in accordance with Article No. 66 “Land Assessment” of the Land Code of the Russian Federation.

A cadastral assessment will help determine:

1. the market value of the exchanged plot in accordance with Article No. 8 of the Federal Law “On Valuation Activities in the Russian Federation”;
2. the cost of land plots through state cadastral valuation.

Land property valuation can be carried out in three ways:

• through independent research of supply and demand for the land being sold;
• based on data on the cadastral value of the site;
• using the services of an independent appraiser.

The procedure for assessing land when concluding a contract includes the following steps:

1. the decision of the owner of land property to evaluate his property;
2. select an independent appraiser and enter into a cooperation agreement with him;
3. conducting an independent assessment of the land plot by an appraiser in order to determine the market value of the subject of exchange;
4. drawing up a final report on the work done;
5. signing certificates of completed work to assess the site;
6. delivery of the result to the owner of the site.

Do I need to contact a specialist?

There are two ways to draw up a document for exchanging land for land : independently and by using the services of a specialist.

Tax obligations under an exchange agreement

Each of the parties to the exchange agreement simultaneously acts as a seller and a buyer in the transaction. Therefore, they are subject to general taxation requirements. If the subject of the exchange was a land plot and other real estate, tax obligations will have the following nuances:

1. income received during the exchange will be taxed at a rate of 13%;
2. to calculate tax liabilities, it takes into account the value of the site specified in the contract or the cadastral value;
3. if the period of ownership of the plot exceeds three years, the obligation to pay tax does not arise;
4. If the tenure period is less than three years, you can take advantage of a property deduction in the amount of one million rubles, or deduct the cost of land acquisition expenses from the tax base.

The purchaser of a land plot can also take advantage of tax preferences. The tax base can be reduced by two million rubles; the specified tax deduction must be calculated by the acquirer independently by submitting a declaration form to the Federal Tax Service Inspectorate in form 3-NDFL. This deduction is carried out at the expense of the amount of personal income tax withheld from the acquirer for previous reporting periods.

The specified tax benefits apply to participants in the exchange agreement, regardless of the legal status of the objects. In particular, if the owner of a car exchanged it for a plot of land, he will be able to receive a tax deduction based on the value of the plot determined in the terms of the agreement.

From the moment the rights are transferred to the new owner, he has an obligation to pay land tax. Land tax rates are approved by local authorities and are calculated based on the cadastral value of the site.

What other objects of exchange could there be?

House

If there is a house on a plot of land, then when drawing up an agreement, the parties to the transaction are obliged to:

1. discuss what to do with registered persons in this area;
2. provide complete and detailed information about the building.

Because if minor citizens of the Russian Federation are registered in the house, then it is necessary to ensure that their interests are not infringed and that all permissions and consents are obtained from the guardianship authorities. In such a situation , the property will be transferred under a deed of transfer , which is attached to the agreement for the exchange of land for land.

Apartment

If the object of the contract is a plot and an apartment, then the exchange agreement must indicate the following information:

1. the exact address of the apartment;
2. its total cost;
3. a list of persons who will own the right to use the apartment after the transaction is completed.

If there are several owners at once, then the fact of transfer of the apartment must be agreed upon with all owners.

Attention! If one of the shares belongs to a minor child, before signing the land exchange agreement, permission from the guardianship authorities will need to be attached to the documents.

Movable property

To exchange land for land for movable property, you must submit an agreement to the State Traffic Inspectorate , where the car will be checked:

1. the presence of a wanted car;
2. for restriction (arrest);
3. for technical condition.

After the above procedures, the newly-minted owner receives a certificate of movable property on the day of submitting the contract.

Read about how to exchange land and other real estate for a car here.

Responsibility of the parties

Also an important factor is the preparation of a section on the responsibility of Counterparties. This is primarily due to risk reduction. Below we present the main provisions that may be written in the text of the document:

The parties bear financial liability in the event of non-fulfillment or improper fulfillment of obligations under this agreement. Counterparties are responsible for deficiencies in the alienated objects if they are identified after signing the agreement. If these shortcomings were discussed before signing the agreement, the parties do not bear responsibility.

Dispute resolution procedure This section often contains the following language:

In case of any disputes, the parties resolve them through negotiations. If during the negotiations the parties do not reach a compromise, disputes are resolved in court.

Registration procedure

To officially register an agreement for the exchange of land for land, the parties to the transaction must contact the Rosreestr service or the MFC. When registering a document, two parties must provide:

• application for the registration procedure;
• internal passports of citizens of the Russian Federation, or documents for legal entities;
• notarized power of attorney for a representative, if the party cannot personally represent his own interests;
• real estate exchange document and transfer deeds;
• title documents for ownership;
• certificate from the Unified State Register of Real Estate;
• cadastral documents;
• receipt for payment of state duty.

Registration of an exchange agreement for a share of a plot is possible only after notarization . To do this, the owner must:

1. obtain a boundary plan for part of the site by contacting a cadastral engineer;
2. send to other owners of the plot an information notice about the conclusion of an exchange agreement with an offer to sell the part on the preemptive right.

Important! If within a month a positive response was not received to the notification, but a refusal was sent, then the agreement is sent to the notary’s office for certification.

Only after receiving a certification mark from a notary, subsequent registration actions in Rosreestr regarding the exchange agreement will take place according to the general rules.

Rules for the exchange of land plots

The possibility of using a land plot as an object of paid and gratuitous transactions is regulated by the Civil Code of the Russian Federation and the Land Code of the Russian Federation. Only the owner can dispose of land; temporary land users (for example, tenants) are deprived of this right. It must be taken into account that any transaction with land plots is subject to mandatory registration with the Rosreestr service, since the plots are classified as real estate.

The key characteristics of land exchange are as follows:

• within the framework of this transaction, there is a mutual transfer of ownership of the object of exchange;
• land plots can be exchanged for similar objects, or for other property assets (residential and non-residential premises, vehicles, etc.);
• an exchange agreement may include a condition for the payment of monetary compensation by one of the parties if the exchanged objects are unequal in value.

For all objects of the exchange agreement, the parties must independently agree on cost characteristics. In relation to land plots, the price can be set based on the cadastral value or market prices for similar objects. As a rule, the value of the object or thing for which the land is exchanged is recognized as equivalent, which makes it possible to avoid additional payments under the contract.

Land can be the subject of exchange regardless of its intended purpose specified in the title documents. For the new owner, the legal regime of permitted land use is preserved, and its change is allowed only on the basis of a decision of the authority. You also need to take into account the following mandatory rules for the exchange of plots:

• after registering the transfer of ownership rights in the Rosreestr service, the encumbrances and restrictions previously established for the site (for example, public or private easement) remain valid;
• if a structure or building is located on the land, it is subject to simultaneous alienation;
• if part of the land plot is subject to exchange (for example, with shared ownership), it will be necessary to first offer it to other owners.

Thus, the exchange of land plots is similar in form to a civil purchase and sale transaction, since the transfer of ownership occurs on paid terms.