When looking for an apartment to buy, you may encounter a situation where a suitable real estate option turns out to be non-privatized. And then the buyer is faced with the question of how the transaction can still be completed. According to the law, non-privatized housing is the property of the municipality, and the entities living in it are tenants who do not have ownership rights. Therefore, purchase and sale transactions of such housing are prohibited. However, there are opportunities to purchase a non-privatized apartment legally.
Exchange
The exchange method for purchasing an apartment without privatization is quite simple and effective, and also allows you not to change the status of the housing. In this scheme, the real estate agency acts as an intermediary and it looks like this:
- A buyer who wants to purchase non-privatized housing buys inexpensive residential premises from a real estate agency, which belongs to him by right of ownership.
- The seller of municipal housing arranges an exchange of real estate with the buyer.
- The seller transfers to the agency the rights to the real estate that was received in the exchange.
- The buyer draws up a rental agreement.
This scheme is usually used in cases where the buyer does not have a sufficiently large amount of funds, and the seller needs to sell non-privatized housing in a short time.
What to consider when buying a non-privatized apartment
- Registration. The exchange of such real estate requires the removal of all residents. Particular difficulties may arise if children or incapacitated persons are registered.
- Registration. A new tenant of council housing must register as soon as possible.
- Debts. Before you buy a non-privatized apartment with debts, enter into a written agreement with the seller on the procedure for repaying the debt. The employer himself can do this by submitting the relevant documents. Another option is to reduce the purchase price by an amount equivalent to the amount of debt.
What the courts said
District Court
Evgeniy is a member of the cooperative. The contract for the construction of housing was not terminated; Evgeniy paid the share contribution in full. Therefore, the disputed apartment must be given to him, and the agreement with Tatyana must be declared invalid. She is occupying the apartment illegally and must move out.
Regional Court
If the seller has concluded several purchase and sale agreements for the same apartment, the buyer to whom the property was transferred is right. Everyone else must be compensated for their losses. According to the documents, the apartment was transferred to Evgeniy: he paid fees, supervised construction, entered into an additional agreement, and participated in general meetings of the cooperative. Selling an apartment to Tatyana is an abuse of right, therefore her agreement with the cooperative is void, and Tatyana herself is an unscrupulous purchaser.
Supreme Court
The courts got it all wrong. In fact, the apartment was given to Tatyana: she made renovations there and lives there. Although according to the documents Tatyana is not the owner, the law gives her the right to defend her possessions even against the owner. The matter needs to be reconsidered.
Evgeniy and Tatyana suffered due to the fact that the agreement with the cooperative for the purchase of a share was not registered in Rosreestr. The cooperative itself maintains a register of shareholders and distributes premises among those who have paid contributions. Therefore, he was able to sell one apartment to several buyers and until now no one noticed.
But these are not all the problems of cooperatives. Evgeniy had to pay additional fees, and the cooperative had the right to demand them. He pays for the construction with money he takes from shareholders. If the developer asks for more money, the cooperative has to demand it from the shareholders: otherwise it will be liquidated and construction will be frozen. Therefore, at the beginning of construction it is not known exactly how much the apartment will cost.
Just giving money and waiting for an apartment won’t work either. To protect your rights, you have to check all contracts, agreements and constituent documents of the cooperative, the conditions and schedule for making share contributions, the register of shareholders, and project documentation. You need to check how construction is progressing and participate in meetings of shareholders: there is no other way to influence the developer. It's a lot of work, and without a lawyer, it's very easy to miss something.
Here are the absolute minimum things to check when purchasing an apartment through a co-op:
- Is the apartment free of encumbrances?
- How many shareholders are there in the cooperative and how are the apartments distributed among them according to the register of shareholders and project documentation.
- If your apartment was previously listed as one of the shareholders, then why is it not listed now? Did he get his share contribution back in full?
- Does the register correspond to the real state of affairs? Evgeniy and Tatyana discovered the deception at the meeting.
NTVP "Kedr - Consultant"
LLC "NTVP "Kedr - Consultant" » Services » Legal consultations » Housing: purchase and sale, maintenance, payment » How to divide a non-privatized apartment
Applicant V.A.P. lives in a 3-room apartment with a total area of 66 sq.m. on social rental terms. His sister V.I.P, 46 years old, lives with him with her daughter, 22 years old. The apartment is non-privatized, the rooms are isolated. V.A.P. wants to privatize the apartment and has prepared a technical passport, but the sister does not give consent to privatization and at the same time she does not pay the rent. V.A.P. I heard that it is supposedly possible to divide personal accounts, and then privatize your part for subsequent sale. To do this, he intends to go to the Registration Chamber, where the division (allocation) of personal accounts will be carried out. It is necessary to invite technicians from the BTI and carry out the allocation of personal accounts.
Applicant's question: How can personal accounts in a municipal apartment be divided with the subsequent privatization of one's share?
Lawyer's answer
As a result of the conversation, the circumstances and documents in the case were clarified, in particular, whether the applicant tried to leave or agree with his sister on joint privatization for the subsequent sale and acquisition of a separate residential premises; who is the current tenant in charge, a copy of the apartment card was reviewed.
According to Art. 2 of the Law of the Russian Federation dated July 4, 1991 No. 1541-1 “On the privatization of housing stock in the Russian Federation,” citizens of the Russian Federation occupying residential premises under a social tenancy agreement in the state and municipal housing stock have the right, with the consent of all adult members living together families to acquire ownership of these premises under the conditions provided for by the said Privatization Law and other regulatory acts of the Russian Federation and constituent entities of the Russian Federation.
As can be seen from the content of this rule of law, privatization of residential premises is possible only with the obligatory consent to privatization of all adult members of the tenant’s family, including former members of the tenant’s family (Part 4 of Article 69 of the Housing Code of the Russian Federation). This rule of law does not establish any exceptions for family members living with the tenant, including those who previously participated in the privatization of other residential premises.
According to paragraph 2 of Art. 62 of the Housing Code of the Russian Federation, an independent subject of a contract for the social rental of residential premises cannot be non-isolated residential premises, premises for auxiliary use, as well as common property in an apartment building.
In addition, in paragraph 31 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated 02.07. 2009 No. 14 “On some issues that have arisen in judicial practice when applying the Housing Code of the Russian Federation” it is said that courts must keep in mind that the Housing Code of the Russian Federation does not contain rules on the right of a family member of a tenant of a residential premises to demand that the landlord change the contract social rental by concluding a separate social rental agreement with him. In this regard, the requirement of a family member of the tenant to conclude a separate rental agreement for residential premises with him (including taking into account the provisions of Article 5 of the Introductory Law and in relation to residential premises provided under a social rental agreement before March 1, 2005), based on the volume of housing The rights of the tenant and members of his family, defined by Article 67 of the Housing Code of the Russian Federation and paragraph 6 of the Model Social Tenancy Agreement for residential premises, approved by Decree of the Government of the Russian Federation of May 21, 2005 No. 315, are not subject to satisfaction.
Thus, from March 1, 2005 (the Housing Code of the Russian Federation came into force), the current housing legislation does not provide for the separation of personal accounts.
Previously Art. 86 of the Housing Code of the RSFSR established the right of an adult family member of the tenant to demand the conclusion of a separate rental agreement with him, if with the consent of the other adult family members living with him and in accordance with his share of the living space or taking into account the agreement on the procedure for using the residential premises. The current Housing Code of the Russian Federation contains Art. 82, which provides for changes to the social tenancy agreement for residential premises. But it has a fundamentally different content. It regulates the possibility of combining several social rental contracts when joining citizens living in the same apartment into one family; and also establishes the principle of replacement of employers.
From the words of V.A.P. It follows that previously his father was the responsible tenant, but after his death no one has yet.
All members of the tenant's family are jointly and severally liable and are required to pay rent for housing and utilities on time (Article 31, paragraph 5, part 3, article 67 of the Housing Code of the Russian Federation, paragraph 3 of Article 682 of the Civil Code of the Russian Federation).
As previously stated, Sister V.A.P. and her daughter do not pay rent or utilities. If payment is not made for more than six months, the tenant and his family members living with him may be evicted in court with the provision of another residential premises under a social tenancy agreement, the size of which corresponds to the size of the residential premises established for moving citizens into a dormitory (Article 90 of the Housing Code RF; clause 38 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated July 2, 2009 No. 14).
Since the payment in this case cannot be divided, V.A.P. it is necessary to pay housing and communal services in full, and then collect their shares from the sister and her daughter by way of recourse, since the debtor who has fulfilled a joint and several obligation has the right of recourse to the other debtors in equal shares, minus the share falling on himself (clause 1 part 2 article 325 of the Civil Code of the Russian Federation).
There are the following ways out of this situation.
Firstly, this is a housing exchange. According to Part 1 of Art. 72 of the Housing Code of the Russian Federation, the tenant of residential premises under a social tenancy agreement, with the consent in writing of the landlord and members of his family living with him, including temporarily absent members of his family, has the right to exchange the residential premises occupied by them for residential premises provided under a social tenancy agreement to another employer.
The landlord's refusal to give consent to the exchange of residential premises can be challenged by the tenant and members of his family in court according to the rules of claim proceedings (Part 3 of Article 72 of the RF Housing Code). Thus, V.A.P. You will need to find several options for exchanging housing, and then, if you cannot reach agreement with your sister, file a lawsuit in court, demanding a forced exchange of housing.
Secondly, V.A.P. you need to try to negotiate with your sister to agree to privatize the apartment in equal shares, and then sell your shares and leave. At the same time, it is necessary to remember about the pre-emptive right of purchase by other participants in shared ownership, Art. 250 Civil Code of the Russian Federation. If the sister gives consent to privatization, but in the future disputes arise about the procedure for using the apartment or about who owns this or that room, you can determine the procedure for using the apartment in an agreement, which is concluded in writing (Article 247 of the Civil Code of the Russian Federation). In case of failure to reach agreement on the procedure for using the property of V.A.P. has the right to file a claim in court to determine the procedure for using the property (apartment). Sample statements of claim are printed and handed over to the applicant.
Thus, to privatize the apartment without the consent of V.A.P.’s sister. can not. Housing legislation since 01.03.2005 does not allow the separation of personal accounts, that is, the conclusion of a separate rental agreement, therefore the arguments of V.A.P. that after a trip to the Registration Chamber he will be allowed to divide (allocate) personal accounts are insolvent. Provided that payment under the social tenancy agreement is not divided into shares, V.A.P. it is necessary to pay for housing and communal services in full, taking into account the share of the sister and her daughter, in order to then collect the debt from them in court by way of recourse in accordance with clause 1, part 2, art. 325 of the Civil Code of the Russian Federation. In addition, in this situation, an exchange of housing is possible in accordance with Part 1 of Art. 72 of the Housing Code of the Russian Federation, and if the sister and her daughter refuse consent to the exchange of living quarters, it can be challenged by the applicant in court according to the rules of claim proceedings (Part 3 of Article 72 of the Housing Code of the Russian Federation). Considering that it is difficult for the applicant to live with his sister in the same apartment, he must try to negotiate with his sister to agree to privatize the apartment in equal shares for the subsequent sale of his share to any person, while not forgetting about the pre-emptive right of purchase by other participants in shared ownership, Art. 250 Civil Code of the Russian Federation.
Skvortsov Alexey Valerievich, consultant of the legal department of the FSS for sustainable development, 8-950-175-32-59
Consultation given in November 2014.
Remember
- If you live in an apartment under a social tenancy agreement, compare the pros and cons of privatizing your apartment.
- If privatizing an apartment is more profitable than remaining just a tenant, find out whether it is included in the list of housing not subject to privatization.
- If the apartment can be privatized, decide which of the registered and living family members will participate in the privatization. Minor children must be included or obtain permission from the guardianship and trusteeship authority for privatization without them.
- Find out the exact list of documents in your municipality, collect them from the list and go through the entire procedure.
- Don't forget that after you become a homeowner, you will be required to pay property taxes.
