Official website of the Supreme Court of the Russian Federation

Official website of the Supreme Court of the Russian Federation

A very useful explanation was made by the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation when it examined a controversial situation related to the purchase of an apartment from the owners, among whom were minor children.

It is known that housing on the so-called secondary market is often cheaper than new buildings. But the risks of losing a newly purchased apartment and money with such a purchase are greater. Especially if the seller is a family with small children.

It is impossible to invalidate a transaction based only on Art. 167 Civil Code

Few people know that the consent of the guardianship authorities required for such transactions does not mean anything. More precisely, it does not protect against possible problems.

The fact is that guardianship only authorizes the transaction on the condition that the small owners will be purchased housing of equal value to the one being sold. And if this condition is not met, then the purchase and sale transaction that has already been carried out can easily be considered illegal.

Our story began in the Chelyabinsk region. There, a certain citizen decided to sell the apartment in which her two minor children were registered. Each of them owned 1/3 of the share.

My mother received written consent from the guardianship authorities for the sale. Giving consent, the guardianship put forward a condition - the apartment can be sold if another housing is purchased at the same time, in which the children will receive 1/3 of the share. The purchase had to be reported to government agencies within a month after the sale of the home.

And then events developed as follows. The deal was completed. The new owner of the apartment paid for the purchase in full and celebrated a housewarming party. But she was unable to live peacefully in her new apartment.

The reason turned out to be that the previous owner, contrary to the agreement, did not purchase a new apartment for the children, which was mentioned in the consent of the guardianship authority. That is, the citizen violated the condition specified in the permit. The guardianship department demanded that the transaction be declared invalid under Article 168 of the Civil Code of the Russian Federation. This article talks about a transaction that is contrary to the law.

The upset new owner tried to defend herself and went to court. She argued that the guardianship of the transaction was illegal in the first place because it did not say how to pay the minor sellers and did not specify into which account the money should be transferred in the name of the minors after the sale of their shares.

She also found the following argument: when issuing the permit, they did not find out the opinion of the children’s father, and she, as a buyer, was not informed that the seller had to simultaneously buy housing for minors.

The local city court agreed with the guardianship's arguments entirely. And he satisfied the claim of the guardianship department, invalidating the apartment purchase and sale agreement. The property was returned to the property of the previous owner and her children. Well, the plaintiff, who never became the full owner of the new apartment, was awarded compensation in the amount of the cost of housing.

In its decision, the city court referred to Article 167 of the Civil Code, which talks about the consequences of an invalid transaction. But the Chelyabinsk Regional Court overturned the decision of its city colleagues and made a new decision, denying guardianship, and at the same time the plaintiff.

According to the appeal, the fact that the previous owner did not buy housing for her children and violated agreements with guardianship does not make the apartment purchase and sale agreement illegal. According to the appeal, the transaction was completed in compliance with all procedures, in fact it was executed and there are no grounds for invalidity. At the same time, the position in the court was explained by the provisions of Article 168 of the Civil Code, to which the first instance did not refer.

The guardianship did not agree with such a refusal and went all the way to the Supreme Court of the Russian Federation. There they studied the materials of the dispute and did not agree with the conclusions of the regional court. At the same time, the Supreme Court immediately referred to two articles of the Civil Code - Article 168 “Transaction contrary to the law” and Article 173.1 “Transaction without the consent of a government agency required by law.”

The Supreme Court of the Russian Federation indicated that the court of first instance could not invalidate the transaction based only on Article 167 of the Civil Code. This article does not establish the grounds on which invalidity is recognized. But these grounds are provided for in other articles of the same code - 168 “Transaction contrary to the law” and Article 173.1 “Transaction without the consent of a government agency required by law.”

The guardianship allows the transaction with the apartment if the children are bought equal housing. Otherwise the deal will be canceled

The Supreme Court emphasized that in the first instance they did not refer to any of these articles, and the appeal not only did not correct this error, but also incorrectly interpreted the norms to which it referred. This is what the Supreme Court drew attention to - the court based its decision on an invalid version of Article 168 of the Civil Code of the Russian Federation.

The appeal should have clarified on what grounds the plaintiff is challenging the transaction, and depending on this, determine what circumstances are significant for the dispute and affect the validity of the transaction or indicate its nullity, the Judicial Collegium for Civil Cases of the Supreme Court indicated.

And the regional court did not take into account that, according to Article 173.1 of the Civil Code, special grounds are established for invalidating transactions made without the necessary consent of a third party, a body of a legal entity or a government agency or local government body. According to the plaintiff, there was no basis for concluding that the transaction was made with the consent of the guardianship, because the defendant did not obtain consent to the alienation of real estate without providing the children with other housing, and this argument was considered important by the Supreme Court of the Russian Federation. The High Court also noted that there was no evidence of compliance with the children's rights - that the funds from the sale of the apartment ended up in their bank account or were spent in their interests. Therefore, he ordered the dispute to be reconsidered.

Text: Natalia Kozlova

Rossiyskaya Gazeta - Federal Issue No. 39(8093)

Can parents buy an apartment for a minor child?

Yes, parents have the right to register ownership of real estate for a child under 18 years of age. Such transactions are quite common and are due to several reasons:

1. Parents want to provide their child with his own living space until he comes of age.
2. They want to separate the apartment from the joint property of the spouses. In case of divorce, the property is not subject to division and the child will retain it.
3. They want to protect the apartment from creditors in bankruptcy and enforcement proceedings. If the jointly acquired property of the spouses can be seized and used to pay off obligations to creditors, then the child’s apartment cannot.

Although an apartment can be registered as the property of a child, due to his age, he is limited in his rights when concluding civil transactions. Thus, for children under 14 years of age, parents sign all purchase and sale agreements and documents for Rosreestr. Whereas minors aged 14-18 years can sign their own signatures on sales contracts, albeit with the consent of their parents.

Risks of alternative transactions involving minors

Obtaining consent from guardianship authorities

If parents buy real estate for their child using their savings, then no difficulties arise. Additionally, they do not need to coordinate the purchase with the guardianship authorities.

But most transactions in the real estate market are alternative. This means that parents sell an apartment where a minor is registered or owned, and in return buy another property.

In this case, the guardianship and trusteeship authorities control the interests of children. Before selling the child’s share, parents must obtain the consent of the guardianship authorities for the transaction: what apartment they are selling and what the child receives in return. This document will definitely be requested from the notary and Rosreestr.

The guardianship authorities will check whether the rights of the child are violated in the transaction and will impose a number of requirements on the apartment. The child’s share in the new apartment cannot be less than the original:

1. Based on the ratio of shares in ownership. For example, a child owned 1/3 of the property; after the sale, the value of the share increased to ½.
2. Based on the ratio of total and living space. The child owned 20% in an apartment of 60 sq.m., after purchasing a new one, he would be given 50% in an apartment of 100 sq.m.
3. At the cost of the share. If in a new apartment the cost of 1 sq.m. above, the deal will most likely be approved.

The guardianship authorities may refuse to issue permission if the new apartment is located in a remote area, the market value of the child’s share has decreased, or the child is buying property in another region.

But even if the apartment purchased in exchange is “worse” than the one being sold, then such a transaction may be approved if there are convincing arguments in favor of its conclusion. For example, parents get divorced and mother and child move to an apartment with a smaller area. Such a move will be in the interests of the child, who will no longer be in a difficult psychological situation, so it will most likely be approved.

Based on the results of the parents’ appeal, the guardianship authorities issue a resolution with specific parameters of the approved transaction. The consent form is not established by law and is drawn up in a free format.

The guardianship authorities can consent to the conclusion of a transaction in two options:

1. Resolution on the simultaneous purchase and sale of an apartment. This is a difficult transaction option to implement, since initially the child needs to buy an apartment, and only then sell the property where he currently lives. To sign an alternative transaction, all parties must sign documents on the same day, and the seller of the apartment must agree to wait until the money is transferred to him
2. Resolution for sale with subsequent purchase. This option makes it easier to sign the contract, since initially the apartment with the minor is sold, and then the parents can look for another apartment option for him. In some regions, guardianship authorities refuse to issue a resolution in this format.

It is also possible that the money for the apartment will be transferred to the child’s personal account. The guardianship will have no more than 30 days to issue permits. If the guardianship authorities do not approve the sale of the apartment, the transaction is declared invalid (clause 2 of article 19, clause 1 of article 21 of the Federal Law “On Guardianship and Trusteeship”).

Conditions under which registration of purchase and sale is possible

As in standard cases, the purchased apartment must comply with legal purity and be provided with the required documentation. It is unacceptable for the object to be under arrest or on bail. These requirements are imposed on the seller of real estate, who is obliged to provide documentation confirming the legal capacity of the property.

The main thing is the presence of the originals of the title and the right certifying document. In addition, the seller and the person representing the interests of the minor buyer are required to:

• legal age;
• having a passport with registration;
• legal capacity.

If parents (other authorized representatives) entrust their powers to an attorney, then issue a notarized power of attorney for them, with a list of actions that they have the right to perform in the context of the transaction.

In this case, the minor owner will be a party to the transaction, and the attorney will be included in the contract as a representative “acting in the best interests.” Legal representatives are obliged to foresee all possible risks by checking:

• passport and all documentation for an apartment owned by an individual;
• constituent documentation of the developer when purchasing an apartment in a new building.

For greater legal standing, the purchase and sale agreement can be notarized or insured.

How to provide for the right of sole ownership?

For a child to be the sole owner, you must:

1. Buy an apartment, not a shared property.
2. If there are several owners, you need to buy up all the shares, registering them in the name of the child.
3. When drawing up a deed of purchase for an apartment, formulate its provisions so that it consistently follows that the property is registered in the name of one owner, who is the child of the person completing the transaction.
4. In the contract, the child acts as the buyer, and the parent (other authorized person) only represents when completing the transaction.
5. After registering the transaction, Rosreestr issues an extract from the Unified State Register of Real Estate, which indicates that the right of ownership is vested in one copyright holder, indicating his last name, first name and patronymic.

If all of the listed signs are present, it means that the transaction took place in such a way that the ownership right passed to one title owner, who is a minor.

Important! If the legal representative acts as a party to the transaction along with the minor, both of them will receive the right of joint ownership of the apartment, which will deprive the child of the right of sole ownership.

What are the differences in the procedure for purchasing housing in a new building?

If the house is not put into operation, parents or guardians draw up an Equity Participation Agreement (DPA), which, in terms of legal capacity, replaces the deed of sale. Apart from the specifics of the contract and the fact that housing is purchased from a legal entity, there are no other differences from the registration procedure. A parent or other authorized representative acts as a representative, about which a corresponding entry is made in the DDU.

This agreement is registered according to the same legal algorithm, based on the age of the minor. After putting the house into operation, an extract of ownership is issued in the name of a minor, with the representation of an authorized person.

It is possible to re-register the right to claim an apartment under the DDU , where the minor is the assignee.

More information about purchasing an apartment in a new building can be found here, and details about purchasing an apartment under the DDU and from the developer can be found here.

What rights to the living space will a minor buyer have?

The full right to dispose of the received real estate occurs upon reaching 18 years of age . Until this time, the responsible disposal of housing is carried out by legal representatives. This person does not have to be the representative who registered the apartment.

For example, if the transaction was completed by the child’s mother, then his father can make payments and be responsible for the operation and repairs of the apartment. From the age of 14, after receiving a passport, responsibility can be transferred to the child, but any legal action is accompanied by an authorized representative. The right of ownership gives a minor a number of advantages that legal representatives are required to realize.

Among them:

• registration in the apartment;
• living in her living space;
• safety of property interests.

Attention! It is impossible to register a new owner in his apartment. Registration is only permissible together with the father or mother. Adoptive parents have the same rights and responsibilities as parents. Accordingly, registration and residence is permissible with one of them (with both).

Or the ward is registered with his guardian. also permissible not to register in a newly acquired apartment - this will not cancel ownership rights, and registration will remain until adulthood, or at another point - at your discretion.