The Supreme Court reminded how to assess the good faith of the parties when challenging transactions for the sale of the debtor’s property

Consent Options

The acquisition of property is a personal matter for the buyer. However, in some cases, the consent of third parties is required to complete a transaction.

This need arises in the following situations:

1. The citizen is officially married. The consent of the official spouse is required.
2. The buyer of the share is not a co-owner of the apartment. The consent of the co-owners is required.

The absence of a document may lead to the transaction being contested. Therefore, it is advisable to receive it in a timely manner.

What is subject to division in a divorce?

The Civil and Family Codes of the Russian Federation clearly stipulate all types of property that can be divided after a divorce. The list included:

1. Cash savings - deposits in bank accounts, pension savings, etc.
2. Real estate – apartments, houses, garages, office and industrial premises.
3. Movable items of property – furniture, equipment, vehicles.
4. Liabilities of spouses for debts and loans taken for the general needs of the family.

In accordance with the articles of the law, upon divorce, all property is divided in equal shares.

Spouse's consent

The spouse's consent to the transaction is required if the citizen is officially married. Consent is not required:

• civil spouse (cohabitant);
• ex-husband/wife.

Consent is formalized in the form of a document drawn up in writing. The document is subject to notarization.

Expert opinion

Stanislav Evseev

Lawyer. Experience 12 years. Specialization: civil, family, inheritance law.

Receipt of the form is based on the joint property regime of spouses (Article 34 of the RF IC). During the marriage, all property acquired by the husband or wife is considered common. In general cases, each spouse is entitled to ½ share. Moreover, it does not matter to which of the married couple the property is registered. However, in private situations the size of the share may be different.

Spouses' funds are also considered joint property. Therefore, in the absence of a documented opinion of the wife, she has the right to challenge the transaction. The document gives the husband the opportunity to complete the transaction on the terms that he approves.

The practice of obtaining the opinion of a spouse is common when purchasing an apartment with a mortgage. The document is requested if the second spouse is not a co-borrower.

Example. Citizen L decided to buy an apartment. However, our own funds were only enough for 60%. Therefore, it was decided to take out the rest as a mortgage. His wife was a housewife and had no official income. Therefore, she could not be involved as a co-borrower. However, the borrower’s income was sufficient to obtain a loan. The bank demanded that the wife's consent to the transaction be formalized.

The document is required not for the purchase of real estate, but for the transfer of real estate as collateral. An alternative is a prenuptial agreement that regulates how mortgage payments will be made in the event of a divorce.

The document is provided only to the credit institution. It is not required for state registration.

Purchasing without spouse's consent

The opinion of a spouse is not always taken into account when buying an apartment. A person is exempt from providing:

• who makes a transaction using his own (personal or premarital) funds;
• which purchases an object that is not subject to state registration.

Sample of spouse's consent to purchase a share in an apartment

The document is drawn up in writing and is subject to notarization. The cost of document processing depends on the region of registration. For example, in St. Petersburg in 2021, a certificate of agreement costs 1,300 rubles. You can find out the cost for other constituent entities of the Russian Federation on the website of the Federal Notary Chamber.

Data that the document must contain

To complete the document you must provide:

• passport;
• marriage certificate.

Sample of spouse's consent to purchase a share in an apartment

Is it possible to receive financial compensation for housing during a divorce?

Division of property is a procedure that often accompanies divorce. However, it is not always possible to divide everything into equal shares. For example, if we are talking about the only home of the spouses. In this case, the best solution to the problem would be monetary compensation. It is paid by the spouse who received a larger share of the jointly acquired property.

Divorce proceedings rarely take place without division of property.

This method of division is often used in pre-trial proceedings. Former spouses agree on the amount and methods of payments. Such an agreement is equivalent to a purchase and sale agreement. It is included in the tax base as a source of income. The court may also award compensation.

Consent of co-owners

A mandatory point when purchasing a share in an apartment is to comply with the right of first refusal of the co-owners. Persons who own shares of an apartment have priority over other buyers (Article 250 of the Civil Code of the Russian Federation).

Therefore, the seller must obtain their consent. The procedure is carried out as follows:

1. The owner of the share sends notice in writing to other owners.
2. The notice must be given personally or by certified mail.
3. If the co-owner refuses to receive it, it is necessary to send the document through a notary.
4. From the date of receipt of the notification, the co-owner has 30 days to make a decision.
5. If a decision is made to buy out, the parties enter into a deal.
6. In case of refusal, the information is communicated to the seller.
7. If the co-owner does not give a written response within 30 days , then the seller has the right to sell the share to third parties.
8. If the co-owner provides a written response before the expiration of 30 days

The notification must contain the following information:

• on the sale of a share;
• about the price of the object.

If a co-owner refuses, the shared owner is obliged to complete the transaction under the conditions specified in the notice. Otherwise, the co-owner has the right to challenge the transaction and act as a buyer.

Thus, when purchasing a share of an apartment, it is not the consent of the co-owners that is required, but their timely notification of the sale.

Exchange of property or non-financial compensation

Compensation for an apartment in a divorce may not necessarily be monetary. Its character is not precisely spelled out in legislative acts. The court or the spouses may determine the option of compensation at their discretion:

1. One of the parties can provide the other with a service or carry out any work - repairs, etc.
2. Both spouses can live in the apartment after a divorce.
3. Other property worth a specified amount may be given as compensation.

Regardless of the nature of the compensation, the contract is concluded in writing and certified by both parties.

When does the pre-emptive right not work?

How to buy a share in an apartment from relatives? The Civil Code provides a list of situations when the right of first refusal does not work. In such a situation, it is impossible to legally buy out the share to other owners.

The law allows a shared owner to independently dispose of a share in an apartment without taking into account the opinions of other owners in the following cases:

• will of a share;
• transfer of an object as a gift;
• sale of shares to pay debts forcibly by bailiffs;
• in case of bankruptcy;
• if there are several people willing.

When is transaction approval required?

However, there may be situations where the question of whether consent needs to be verified is not negotiable. You still have to contact a notary. This may be necessary in the following cases:

1. If the contract for the purchase of an apartment will be drawn up by a notary. The law does not require this, however, at the request of the parties, a notary can certify any transaction. And in this case, in accordance with the requirements of the Fundamentals of the Legislation of the Russian Federation on notaries, he will be obliged to check whether the consent of the second spouse has been given.
2. If there is a possibility that the husband or wife may later challenge the transaction. This right is given in Part 2 of Art. 35 IC RF.
3. If such a requirement is established by the marriage contract that the husband and wife entered into earlier.
4. When an apartment is purchased with a mortgage. Art. 10 of the Federal Law “On Mortgage (Pledge of Real Estate)” provides that such agreements are subject to state registration and therefore Part 3 of Art. 35 IC RF.

How to apply correctly?

In cases where a notarized permission to complete a transaction is still needed, it is drawn up as follows.

Appearance and content of business paper

There is no officially approved consent form in Russia . In fact, there are only a few requirements for it:

• It must be in writing as a single document.
• It must be stamped by a notary.

There are also no official requirements for the content of consent. However, it must contain the following information:

• Full name of the person agreeing to complete the transaction.
• His date of birth.
• Passport details, including citizenship.
• Family status.
• The clearly expressed will of the person giving the agreement.
• The exact address or cadastral number of the purchased property.

The specific wording is selected by the employee of the notary office preparing the document. In addition, a citizen himself can prepare a document and only sign it in the presence of a notary.

Below is a sample consent from the husband (wife) to purchase an apartment.

Identity nuances

In cases where the law provides for the need for consent, it must be certified by a notary.

However, Art. Art. 37 and the Fundamentals of Notary Legislation indicate that two exceptions to this rule are possible:

1. If there is no notary in the locality , then the head of local government or a municipal administration employee specially appointed by him can certify the document for local residents.
2. If the transaction is made abroad , employees of Russian consulates can certify consent.

Payment deadlines and form

The timing of payment of compensation is established in a written agreement of the spouses or a court decision. The transfer of money can be one-time or gradual. It depends on the capabilities of the parties and the amount of compensation.

Payment terms can be agreed upon in writing. If they are not reflected in the agreement or court decision, the date of fulfillment of obligations is considered to be the day the document enters into force.

If the payer does not comply with the court decision, compensation is withheld from his salary in installments. In this case, the one-time amount should not exceed 50% of income.

Personal income tax for monetary compensation

Compensation for an apartment during a divorce, awarded in court, is considered a transaction between family members. It is not subject to income tax. If the spouses entered into an agreement voluntarily, Article 217 of the Tax Code comes into force. The person receiving compensation must pay personal income tax.

However, it is possible to receive a tax deduction. To do this, the apartment must meet several requirements:

1. The cost does not exceed 1 million rubles.
2. The property was purchased more than 3 years ago.

The agreement between the spouses must be formalized as a purchase and sale agreement. In this case, one party receives an apartment, and the other has the right not to pay income tax.

Procedure

Visit to the office or call a specialist?

A citizen can obtain consent in two ways:

• Appear in person to the notary . Unlike inheritance issues, there is no division of powers here, and therefore you can choose any notary office.
• Call a notary to your home . Almost all notaries provide this service. However, in this case, paperwork will be much more expensive.

Above you can agree to purchase an apartment from your spouse.