Pravozhil.com > Real estate registration > What is alienation of real estate, types of alienation
It is important to know what alienation of real estate is. After all, it is difficult to imagine modern economic and social legal relations in which the fact of sale and acquisition of any real estate is not present.
Individuals use it for living. And legal entities make a profit and use it in their business activities.
Therefore, before concluding any transactions, you need to understand what alienation of real estate is.
What is alienation of real estate
By alienation of property, lawyers mean all transactions related to the transfer of ownership from one person to another, for compensation, free of charge or on a forced basis
Alienation of property - what does it mean? From a legal point of view, there is no such term as sale or donation of real estate. The concept of alienation of property is applied to such legal relations.
The alienation of the specified property means such a legal transaction (alienation agreement), as a result of which the owner of the specified property transfers the right to it to another person.
The alienator may be individuals or legal entities. As well as the state, represented by territorial or municipal bodies.
The acquirer can be citizens of our state who have legal capacity, as well as legal entities that conduct any (commercial and non-commercial) activities.
Transfer of rights to such property can occur in the following ways:
- purchase and sale agreement, that is, when the owner of the property sells it to another person and receives compensation for this (voluntary alienation);
- a gift agreement, in which the owner of an apartment or other object gives it to his relative or other person (including a legal entity) without receiving any remuneration for it (voluntary alienation, without receiving material benefits);
- making an exchange when a piece of real estate is transferred to another person, who in return transfers some thing or other material benefit (car, jewelry). In essence, this is also a voluntary alienation with the receipt of certain material benefits;
- gratuitous transfer (for example, during confiscation), or other legal actions by government authorities (requisition).
In fact, the alienation of property is the process of transferring ownership rights to it from one person to another on compensated (receipt of any material benefit) or gratuitous conditions.
It is important to remember that the fact of transfer of rights is confirmed only after their official state registration for any real estate in a special state register.
Documents provided to the notary to certify the transaction for the alienation of a share
The package of documents that must be transferred to the notary to certify the transaction is strictly regulated by law.
The list of these papers includes:
- The agreement under which the alienation of a share of the authorized capital took place. Must be provided in quantities of three.
- Documents that can confirm the seller’s right to dispose of shares. Such documents are: an agreement on the acquisition of a share, a constituent agreement, a certificate of inheritance.
- Extract from the unified state register of registration of legal entities.
- Documents confirming payment for the share being sold.
- LLC Charter.
- Memorandum of association.
- Documents that confirm the consent of other founders to the alienation of a share of the authorized capital.
- Other documents that may be required depending on the circumstances. An example would be consent to the alienation of the seller's spouse.
Voluntary and forced alienation
What types of alienation are there? It was described above that the current Legislation provides for various methods of legal alienation, among which there is even requisition (forced alienation). In essence, these methods are identical in their legal nature. They differ only in the way ownership is transferred.
Voluntary alienation refers to these actions of a person, including legal entities, and government bodies, which respond to his internal desire for the occurrence of such consequences as the transfer of ownership of his object to another person.
Naturally, this can happen for receiving certain material or other benefits. In some cases, a person’s will is aimed at alienation free of charge, then a deed of gift is drawn up.
By forced alienation we mean the actions of the state represented by its authorized bodies that requisition real estate for any legal reason.
This may be a decision of the court or other competent authorities. Requisition is provided for in the Constitution of our state.
These are the features of the alienation of real estate.
It is important to know that the list of cases in which requisition may occur is clearly regulated by current legislation.
If it occurs under another pretext, these are illegal actions for which criminal liability is provided.
Preparation and procedure for drawing up an offer
As already stated earlier, the founder must first send an offer to alienate the share to the other founders. The offer is essentially an offer to purchase part of the authorized capital; it contains the main provisions of the sales agreement, which may include the subject of the transaction itself, its price, as well as other conditions.
The addressees are the other founders of the company, or the founder, if he is the only one, or the company itself.
The offer form is not established by law, but, in accordance with it, must contain the following data:
1. Information about the seller, which includes his full name, passport details, INN and OGRN (if the seller is a legal entity) and so on.
2. Information about the organization, about the share of property for alienation, including its nominal value and size.
3. Information about the possible buyer. This column must be filled in similarly to the column with information about the seller.
4. Subject and conditions of the proposed transaction.
5. The procedure in which the value of the alienated share is calculated.
6. The period during which the transaction must be accepted. Often this period is one month, unless otherwise provided by the organization’s charter.
7. Date and signature of the seller.
Alienation of a share of an apartment, features of such transactions
Among some of the problems that property owners face is shared ownership of a property.
Shared ownership means a situation in which one object (apartment, house) has several owners, and each of them owns a part of it. Naturally, the current legislation protects their rights in the following way.
According to the Civil Code, as well as Federal Law 159 on the specifics of the alienation of real estate, shared owners have the primary right to acquire a share of the property.
Therefore, a person who decides to sell part of an apartment or house, after deciding on the price, is obliged to make an offer to the other owners.
With shared ownership of property, the alienation procedure becomes significantly more complicated
Only after they refuse can you safely carry out the transaction and sell your part to any individual or legal entity. Naturally, this transaction will be notarized.
To avoid any questions from the notary, you can do the following:
- Written statements are taken from other owners that they are not against selling the share to another person, to which a photocopy of the applicant’s passport is attached so that signatures can be compared and authenticity can be verified.
- The second method, which is more effective, is to invite the co-owners to the notary, and assure them of their refusal in the prescribed (written) form.
The procedure for determining the value of the alienated share
What is the value of the alienated share? This question is asked quite often. The procedure according to which the value of the alienated share in an LLC is determined is established by clause 6.1 of Article 23 of the Federal Law on LLC.
In accordance with this federal law, the cost is determined in accordance with the financial statements of the organization, taking into account the share of the person who leaves the limited liability company.
In this case, the data reflected in the reports for the period preceding the date of drawing up the alienation application are taken into account. That is, if a quarter is taken as the reporting period, and the application was drawn up in the second quarter, then the reporting period taken into account will be the first quarter of the year. The period within which the required amount must be paid is 3 months.
It is important to note that the cost of the share cannot be paid if the company's assets had a negative value in the reporting period.
Consent to alienation
Alienation occurs with even greater complications if the owner of a share in the real estate is a minor child
The first problematic case, when the property is in shared ownership, was discussed above. But there are still problematic situations.
This also includes the sale or other alienation of real estate owned by minors and minors (or they are co-owners).
In general, children’s rights are strictly regulated, and many government bodies are on their side, one of which is the Guardianship Council.
He is in charge of all transactions involving the alienation of property. It belongs wholly or partially to the children, and it is he who gives consent to all such alienations.
In order to avoid any questions, parents or guardians who decide to sell an apartment where the child owns a part should know the following subtleties:
Before selling the property described, parents must find equivalent housing that is no worse than the one being sold, or has better individual parameters.
If, according to the documents, nothing will be purchased in return, then the board of guardians will not give permission, and if the sale does occur, it will go to court and declare the transaction invalid.
Children who are 14 years old must come to the Board of Guardians (CO) and confirm their consent to the alienation by writing a written statement. If they refuse to do this for any reason, there will be no permission to sell from the OS.
Drawing up an agreement on the sale and purchase of the alienated share
Drawing up an agreement is the next step when alienating a share in an LLC if the transfer is carried out on a reimbursable basis. In this case, the document must be drawn up in writing and then certified by a notary. The procedure for notarization is the same when selling to both other founders and third parties. We'll talk about the certification procedure later.
The main condition is to draw up an agreement that will meet legal standards, including all significant circumstances and terms of the transaction.
Circumstances that are considered legally significant and must be reflected in the share alienation agreement are:
• The actual place and date of conclusion of the contract.
• Complete and authentic information about the seller of the share.
• Complete and authentic information about the buyers (buyer) of the share.
• Information about the alienated share, including its characteristics, as well as its nominal value.
• The order in which settlements are made between the parties.
• Details of the parties, as well as their signatures with transcripts.
When drawing up a transaction for the alienation of shares, you should pay attention to the following nuances:
• Information that characterizes the parties to the transaction must be indicated in full. They must necessarily contain passport data if the parties are represented by individuals, as well as OGRN, the place where the registration was made, and full data if the parties are represented by legal entities.
• The alienated share, its size, as well as nominal and actual value must be clearly indicated.
• The term and procedure for payment for the alienated share must be strictly defined.
• The contract may contain information about the consequences that may occur in case of non-compliance with the terms of the contract.
• It seems advisable to indicate in the contract who is responsible for the costs of completing the transaction.
The more complete the data is presented, the easier the transaction confirmation procedure will be.
What documents need to be prepared when alienating property?
In order for the alienation of property to be recognized as legal, the parties to the transaction will need to ensure the correct execution and registration of all documents
In order for the alienation process to be correct, and from a legal point of view, such a transaction cannot be canceled, the parties and participants must know what list of documents is necessary.
On the part of the seller, or the one who alienates, first of all, it is necessary to have a document that confirms his ownership. This can be a purchase and sale agreement, a gift, an inheritance, or a privatization certificate.
If the property is in joint shared ownership, then statements from the other owners will be required that they have been notified of the intentions of alienation and are not against it.
The next thing is the availability of documents from the passport office (district migration service, housing office) about who is registered in the real estate. This is not necessary for commercial real estate.
When conducting a transaction involving the alienation of property, any document or even a certificate may be important; this fact must not be overlooked
If at the time of alienation it is determined that some family members have not been deregistered, then the new owner will have problems with their deregistration. The last thing is the presence or absence of debt for utilities.
Despite the fact that such a certificate is not important and does not affect ownership and disposal, the debt may entail going to court and seizing the apartment or house.
The last document is an extract from the register, which will confirm that at the time of the transaction, the apartment, house or other object is not leased for long-term, there is no arrest or other prohibition on alienation.
If the transaction goes through a notary, then the latter is obliged to check it himself.
There is no need to collect any documents for the person who will become the new owner; the main thing is to check that the buyer has the necessary information.
It is important to know that immediately after concluding an alienation transaction, the new owner must register it in a special state register. And only then will there be a complete transfer of ownership.
Alienation of real estate refers to the process of transferring ownership of it from one owner to a new one. It can be paid or gratuitous.
Watch the video about the alienation of shares in common property rights:
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Discussion: 3 comments
- Ivan says:
10/13/2018 at 12:54 pmI didn’t quite understand the functions of a notary in transactions involving the alienation of real estate. What exactly does he certify if all documents still go through Rosreestr and without his consent to registration the transaction is void?
Answer
- Evgeniy says:
10/05/2020 at 00:17
Alienation of property is a very long process with a lot of nuances. We did everything through a notary. There was simply no time to run through all the authorities, collect certificates and papers.
Answer
- Albina says:
06.10.2020 at 00:27
You should not get involved with property that includes a minor child. In 90 percent of cases, problems arose later. If the child is already 14 years old, then it’s easier.
Answer
Direction of the offer
You can send an offer directly to the company itself. You can do this in the following ways:
• Hand over personally to an authorized representative of the organization, who must certify with his signature the fact of its receipt.
• Send through a notary.
• Send by registered mail via post. In this case, it is necessary to have an inventory of the investment, as well as a notification of delivery.
Despite the fact that the law does not oblige the offer to be sent to other co-founders, it is still necessary to give them copies of the offer. The founders have the right to accept the offer within a month. If the seller of the share wishes to transfer it to a third party, and the other founders do not object to this manipulation, then they can send a statement of their consent to the seller. If the offer was not accepted within a month or another period provided for by the charter of the LLC, other founders lose the right of priority to receive a share in the authorized capital.
