Q: What types of cooperatives are there?
A.K.: Housing cooperatives, housing-savings and housing-construction cooperatives are common. If we have anything in terms of attracting money from potential real estate buyers, it is mainly housing construction cooperatives. Potential buyers join its members, pay an entrance fee, current payments, and subsequently, upon completion of the construction of the facility and payment of the full share, they acquire ownership of the property - an apartment, which they initially intended to purchase by joining this organization. The scheme is approximately like this.
Form and purpose of the agreement
A housing cooperative agreement is an agreement between a shareholder and a cooperative on mutually beneficial cooperation . It is drawn up taking into account the requirements and standards that are prescribed in Federal Law No. 215.
The law does not regulate the form of contracts when joining a housing cooperative. Lawyers for cooperative communities draw up a document based on the requirements of the Civil Code of the Russian Federation and guided by individual articles of Federal Law-215. Is it worth joining housing cooperatives, what are the pros and cons of such organizations, read here.
The housing cooperative agreement gives the shareholder a number of guarantees . In addition, this document determines the timing of construction work and prescribes the agreed cost of the future apartment.
Q: Everyone often mentions the word “share,” what definition can be given to this concept?
A.K.: But no one knows what it is. A certain share, a certain substance. What rights this share should be attributed to from a legal point of view is also not clear, either in theory or in practice. Some go to the forest, some buy firewood with these shares. Someone enters into transactions for the purchase and sale of shares, judicial practice says that the share must be ceded. There is nothing really clear about how this is all regulated. Theorists reason as follows. A cooperative is an organization not associated with commercial activities. First of all, its current activities are aimed at satisfying the interests of shareholders. A person who has joined a cooperative must have exclusively utilitarian, consumer goals; everything that I do by joining this organization is associated with the absence of the intention of making a profit or commercial gain. Relatively speaking, I want to buy an apartment, I became a member, I pay current fees, and, in principle, as the law believes, nothing else should interest me. The assignment should not interest me, since there is a commercial component associated with resale, etc. Join the cooperative, pay the share and live in peace - this was the meaning of the law. Of course, he is insanely wild, in my opinion. Of course, we need to take into account the situation that I joined a cooperative, and then for some reason I cannot pay for the share, the financial component of my life has changed, and I want to transfer this share. From the point of view of the law, apparently, I should be expelled from the membership of the cooperative, and the money that I contributed to pay for a specific piece of real estate should be returned to me, apparently, too, if the cooperative has the money to return it to me. If not, then the cooperative must somehow, based on the general principles of civil law, settle accounts with me. I can’t answer this question specifically, nothing is clear.
Is the purchase of an apartment under a share participation agreement an expense when selling it?
— Is the purchase of an apartment under a share participation agreement an expense when selling it? Can they be deducted from the sale price of the apartment? The purchase of share participation was in dollars. How will the cost be calculated?
Tax consultant of the financial service INCOM-Real Estate Aina Zaitseva answers:
The share participation agreement, along with the DDU, refers to one of the types of investment in construction. Therefore, when selling real estate, you have the right to reduce your income from the sale by the amount of expenses that you incurred when purchasing under a share participation agreement. But you can not reduce the entire amount, but only the amount of expenses that were spent on building the apartment. Thus, a membership fee aimed at maintaining a cooperative cannot be used to reduce income from sales.
The main condition for accepting expenses is documentary evidence of all expenses. Therefore, you must have an agreement, a payment document confirming payment for the apartment, and an apartment acceptance certificate.
If the payment was made in a currency, for example, in dollars, expenses are accepted in ruble equivalent at the Central Bank exchange rate on the date of payment for the share participation agreement.
Yulia Dymova, director of the Est-a-Tet secondary real estate sales office, answers:
The Law on Shared Participation provides for various forms of attracting citizens to invest in construction, including a share accumulation agreement. This is the same investment agreement as an equity participation agreement. Therefore, the amount that was paid upon sale can be deducted from the tax base.
It does not matter what currency the share participation was purchased in, since since 2007, payments for all goods and services on the territory of the Russian Federation are made only in rubles.
Oksana Vasilyeva, Associate Professor of the Department of Legal Regulation of Economic Activities of the Financial University under the Government of the Russian Federation, answers:
There is no specific list of expenses that are included in the price when selling an apartment. However, the Ministry of Finance of Russia, in a letter dated January 20, 2015 No. 03-04-05/1127, explained that these include expenses that are named in paragraphs. 4 p. 3 art. 220 NK. These are expenses
- for the purchase of finishing materials;
- for work related to finishing, including the development of design estimates for finishing work;
- for the purchase of the object itself.
In turn, there is a letter from the Federal Tax Service for Moscow, which states that paid share contributions to housing cooperatives is an expense associated with the purchase of housing (Letter from the Federal Tax Service of Russia for Moscow dated April 12, 2012 No. 20-14/032387). Thus, when selling an apartment, you can reduce the income from the sale by the amount of the share contribution paid.
An important clarification is that expenses must be documented.
Since all transactions on the territory of the Russian Federation are carried out in rubles, and the purchase of shares was carried out in dollars, expenses will be calculated by converting dollars into rubles at the official exchange rate of the Central Bank of the Russian Federation at the time of purchasing your share. And this amount will be included in the price when selling the apartment in rubles.
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Q: How does the assignment of a share in a housing construction cooperative, for example, take place?
A.K.: The main document in a housing cooperative is the charter. The charter must indicate what relationships should exist between the shareholders who are registered in the cooperative. The imperative requirement is legitimately the following. To be accepted as a member of a housing construction cooperative, the approval of the conference of the general meeting of participants of the housing cooperative members is required. In other words, if I am a member of a cooperative and decided to cede to you my share, my share in this cooperative, you and I entered into some kind of civil law transaction related to the assignment of such a share, then we came to this cooperative, and there they say that cannot accept you as a member. They already have in connection with the seller’s withdrawal from membership, i.e. me, someone else who is already a member decided to purchase this apartment. There may be a huge number of different nuances associated with these concessions. As a result, you can pay money for a share and not be included in the members of the cooperative, sue them later, sue the person from whom you bought the share. A very murky story, in my opinion.
Procedure for paperwork and required documents
The housing cooperative agreement is concluded between two parties, therefore it is always prepared in 2 copies.
The paper is drawn up and signed before the down payment is made. Both parties must strictly adhere to the established rules.
To complete the agreement, no documents other than identification are required from the shareholder. The cooperative presents papers at the request of the future participant. Before signing the paper you should look at :
- Certificate of ownership of the land plot where the house is being built.
- Development permit.
- Declaration for the project.
It is recommended to check the business reputation of the organization , and also make sure that it is not bankrupt.
Rights of the owner of a cooperative apartment
After paying the due funds and receiving the property, the person receives a number of rights. Among them:
- the ability to use the premises and its purpose according to your wishes;
- transfer of an object for use to another person on the basis of free use, rental agreement or lease;
- the right to exchange housing with another member of the cooperative, if both agree.
It is worth considering that the rights of the owner are limited by the charter of the cooperative, as well as its regulations.
When registering your legal rights and receiving legal documents, it is possible to carry out various operations related to the donation, sale or division of housing. But such procedures are specific, and therefore require extracts from Rosreestr.
Any issues that cannot be resolved within the settlement agreement can be litigated through the court system. Such cases are especially common during inheritance or divorce. For the latter option, it is necessary that the housing was purchased during the marriage.
Duration and cost of the procedure
The package submitted for registration to Rosreestr is reviewed by its employees within 14 days. In some cases, the process is delayed by 30 days.
The state fee for processing documents is 2000 rubles . If there is no technical passport and floor plan, you will have to pay from 1,500 rubles for its registration.
Read our article about how to determine whether your living space is privatized.
Does the document need to be registered?
Written agreements to become members of a housing cooperative are voluntary and are not subject to state registration. This fact allows unscrupulous cooperative owners to sign contracts repeatedly for the same living space.
State registration is carried out only after the facility is put into operation.
To make regular decisions on current financial and economic issues of the Housing Complex, a board headed by a chairman is created. You will find information about the board of housing complexes, the liquidation and reorganization of housing cooperatives, the creation of residential complexes and housing cooperatives, and general information about housing cooperatives on the pages of our website.
Refusal to accept an application
Often in practice situations arise when officials of organizations refuse to accept an application for property registration.
Refusal according to the law can only occur for the following reasons:
- Lack of documents.
- The documents do not comply with regulatory requirements or there are doubts about their authenticity.
- The registration of housing cooperatives was carried out in violation of the law.
- The application was submitted by a person who does not have rights.
A sample statement of claim to the court for recognition of the right to privatize residential premises is available.
FAQ
Various issues arise in connection with cooperative apartments. Let's look at the most popular ones.
Is it possible to privatize a cooperative apartment?
The concept of “privatization” applies only if we are talking about a state or municipal apartment. The cooperative apartment never belonged to either the state or the local administration - it was originally built as a private one.
Therefore, the registration procedure is not called “privatization”, but simply “registration of property rights”. We discussed above how to register ownership of an apartment.
Is it possible to bequeath a non-privatized cooperative apartment?
A non-privatized, that is, not registered in ownership, cooperative apartment belongs to the shareholder by right of ownership if the share is fully paid. In this case, it can theoretically be bequeathed, but in practice not a single notary will undertake this. Before drawing up a will, the notary will insist on registering the property rights in the Unified State Register of Real Estate.
On the question of whether it is possible to bequeath a non-privatized cooperative apartment for which the share has not been paid, the answer is strictly negative. This living space does not yet belong to the shareholder. Ownership is held by the cooperative. Therefore, you can bequeath not housing, but only a cooperative share.
Termination of membership in a cooperative
Membership in the cooperative is terminated:
- voluntarily at the request of the shareholder;
- if he was expelled forcibly due to a gross violation of the rules;
- in the event of the death of a shareholder;
- if the housing cooperative is liquidated.
In the first three cases, the shareholder or his heirs are returned the money that he paid for the cooperative share. In the latter case, the property remaining after liquidation is divided among all members in accordance with the size of their participation in the housing cooperative.
How to register property rights?
How to privatize? Where to begin? The procedure for registration directly depends on the deadline for the final payment of the share. The procedure is possible in two options:
- Payment is completed before 1997 - ownership is confirmed by a certificate issued by the BTI. Based on this document, you can obtain a Certificate of Ownership.
- The payment was completed after 1997 - the procedure is carried out through Rosreestr, since the entry into force of the law “On State Registration of Rights to Real Estate...” presupposes precisely this procedure for accounting for buildings.
Registration is carried out on the basis of a shareholder’s application , to which are attached:
- certificate of payment of the share;
- order;
- a copy of the Housing Cooperative Charter;
- list of members;
- an extract from the minutes of the organization's meeting;
- documents for a plot of land under an apartment building;
- certificate of the amount paid;
- technical documentation for residential premises;
- passport and TIN of the shareholder;
- receipt for state duty;
- power of attorney (if registration is not carried out in person);
- marriage certificate (if available).
The matter is simplified if one of the owners has already gone through the registration procedure .
Housing cooperative documentation is contained in Rosreestr, and you can only indicate the number of the case filed earlier (information is clarified from the management of the housing cooperative).
The package of documents must be collected quickly enough , since the certificates are valid only for 30 days.
Rosreestr employees check the documents submitted for registration and then invite the property owner to register.
After submitting the application, a Certificate of Ownership is prepared within 10 days, and the owner’s data is registered in the Unified State Register.
You can apply for registration of ownership of real estate at the MFC or remotely through the State Services portal.
Registration through the site is possible if the shareholder is previously registered on it and has a login, access password and electronic signature. All documents are uploaded to the Gosuluga website in the form of scanned copies.
