- 3.7.2017
- 62095
The vast majority of real estate transactions are carried out for a very obvious reason - one person has an object that he intends to get rid of, and the second person just needs this object. There is a sale or exchange taking place. All clear. When relatives make a deal, an abyss of motives and undercurrents can be hidden behind its façade. The METRTV.ru portal has counted 8 main reasons that encourage relatives to transfer apartments to each other.
According to Art. 14 of the Family Code of the Russian Federation, close relatives are relatives in a direct ascending and descending line: spouses, children and parents, grandparents and grandchildren, as well as full and half brothers and sisters (who have a common father or mother). Close relatives can give, buy, sell, rent housing, pass it on by inheritance, and enter into rental and other agreements. However, some transactions between close relatives are subject to a legislative veto, while others should not be made for other reasons. Therefore, we will consider possible transaction schemes for each case.
Transfer of an object to an heir from the testator
The owner can transfer an apartment or other real estate to a chosen heir through a will, donation, purchase and sale, or through a rental agreement. Previously, the METRTV.ru portal spoke in detail about the inheritance of real estate by law and by will, as well as about the deed of gift in favor of the heir. Transferring property to an heir through purchase and sale has its own characteristics.
Natalia Mikhailyukova
lawyer of the Russian Guild of Realtors
Often transactions are made between relatives that have no legal consequences. This, for example, is a purchase and sale in which there was no transfer of money. Such a deal is easy to challenge. If there is a real sale between relatives, then it is necessary to ensure that the transfer of money is recorded. Ideally, the money is transferred to the seller’s bank account. If the payment is made in cash, then the seller should deposit the entire amount into his personal account directly on the day the contract is concluded. Subsequently, this will make it possible to prove that the transaction was not a sham. Or another situation from life. The grandmother gave the apartment to her grandson through a gift agreement, but they agreed that the grandson would provide care for an elderly relative. That is, in fact, it was not a donation, but a rent agreement. Because of this, relatives were able to challenge the deal.
However, as lawyers note, a transaction carried out without a hitch - in full compliance with the law - can be challenged.
Yulia Balay
director of the office of the Academy of Sciences "Novosel"
Interested parties may try to challenge the sale of the apartment. For example, if a grandmother sold an apartment to her grandson, and other heirs found out about this only after her death, they will almost certainly try to cancel the deal. If at the time of signing the contract the seller was over 70 years old, then the chance of challenging it is high. If someone buys an apartment from the owner who received it from an elderly relative, I advise the buyer to take notarized statements from the other heirs of the former owner that they know who the owner of the property is and have no claims.
Separately, it is worth considering the situation when the heir (in whose favor the housing is alienated) is married. If he receives an object from his grandmother/grandfather as an inheritance or by deed of gift, he will become its sole owner, but if through purchase and sale, then the apartment will be in the joint ownership of the spouses. In case of divorce, the heir will give half of the apartment to his wife.
Ivan Volkov
Managing Partner of LLC "Legal"
The apartment can be transferred to the chosen heir through donation or sale, but, in my opinion, in many situations it is more convenient to use a rental agreement. In case of any problems, returning an apartment transferred under rent is easier than under a purchase and sale agreement. Figuratively speaking, in terms of the quality of protection of the parties, annuity is in first place, and donation is in second place. The donor may demand cancellation of the gift agreement if his life circumstances have changed. There was a case in Verkhnyaya Pyshma: a person who gave an apartment to a relative lost his second home, and then the gift agreement was canceled. In third place is buying and selling.
Deal to fulfill the requirements of the guardianship authorities
In general, purchase and sale transactions between relatives do not differ from similar transactions between strangers. Differences appear if a child is a party to the transaction. According to Art. 37 of the Civil Code of the Russian Federation prohibits paid transactions (purchase and sale) between minors and their legal representatives - parents, adoptive parents, guardians, trustees, as well as their spouses and close relatives. In addition, there is a ban on donating property belonging to a minor. Previously, the portal METRTV.ru talked about controversial situations when obtaining permission for a transaction from the guardianship authorities, but life keeps throwing up new stories.
Lyudmila Plotnikova
lawyer of the Ural Chamber of Real Estate
There was a case - the spouses were getting divorced and agreed on the division of property. In particular, they decided that their apartment would completely go to their spouse. But there was a child’s share in the apartment. According to the law, my father could not buy it or receive it as a gift. To achieve their plans, they had to sell the child’s share to a third party, and from him the share was transferred to the parent.
Another difficult, although common, situation is when a grandmother sells her share of an apartment. The second owner of the apartment is a child. There have been cases when guardianship authorities prohibited the purchase of this share in favor of the child, citing the legislative prohibition of paid transactions between relatives and minors. But now, guardianship, as a rule, agrees to such deals.
Ivan Volkov
Managing Partner of LLC "Legal"
The child co-owner of the apartment has a pre-emptive right to buy out the share being sold. A minor can participate in a transaction, but a legal representative, for example, a parent, acts on his behalf. He also has a pre-emptive right to purchase a share, but must buy at a price no lower than if the sale were made to a third party.
By the way, lawyers tell a rather funny case when they managed to circumvent the ban of the guardianship authorities. The share in the apartment was sold by the grandmother on the child’s mother’s side. His mother (the seller’s daughter) wanted to purchase a share for the child. The guardianship did not approve the deal. Then the lawyer suggested rewriting the contract so that the father (not a close relative of the seller) would act as the minor’s representative. The guardianship did not protest against the deal in this form.
The cost of re-registration, what will be the costs?
When considering the costs that re-registration of rights to residential real estate entails, everything is individual. For example, the cost of a notary's services will depend on what services he provided to you (drawing up an agreement, consulting, collecting documents for you, handling registration, and so on). The same deed of gift is estimated at 0.5% of the apartment’s valuation, but within the range of 300 to 20 thousand rubles. Examination of documents costs from three to five thousand, and registration of new rights in Rosreestr requires payment of a state fee of about a thousand rubles, depending on the region.
Interrelative exchange or purchase
Another point to remember is that when buying and selling between related parties, the buyer does not receive the right to a tax deduction. Spouses, parents (including adoptive parents), children (including adopted children), full and half-siblings, guardians and wards are considered interdependent persons. If a transaction occurs between persons with other degrees of kinship, then the right to deduction arises, but only if the transaction was not feigned and the buyer actually paid for the apartment. If an interested party (for example, the tax office) proves in court that the transaction took place without transfer of money, it will be declared void.
Natalia Devkina
Executive Director of Zyryanova Real Estate Bureau LLC
Compensatory transactions between relatives often come under the increased attention of tax authorities, and cases of challenge from other persons are not uncommon. Therefore, if we are talking about interrelated exchange or redistribution of property, then the best option is donation. In addition, real estate received as a gift from relatives is not subject to income tax.
As lawyer Lyudmila Plotnikova notes, Interrelated housing exchanges are formalized mainly through an exchange agreement.
Advantages of drawing up an exchange agreement
The main advantage of the deal is reduced tax. After all, during the purchase and sale, each party pays 13% mandatory tax on the transaction. An exchange agreement between relatives involves a one-time payment of tax, which significantly saves the budget of each party.
The second advantage is a simplified procedure for establishing a new ownership right, which takes much less time to complete.
The third advantage is the functionality of the act itself. There is no official structure of the contract; the parties can specify in it all the nuances for maximum benefit - from additional payments to responsibilities.
Use maternity capital
The main problems for families entitled to maternity capital arise due to inconsistency in the actions of government bodies.
Evgenia Svintarzhitskaya
lawyer at BK-Real Estate LLC
It is a fairly common practice when maternity capital is used to buy an apartment from a relative. Most often - at the grandmother's. The pension fund does not object to such transactions. But the notary and Rosreestr sometimes refuse to formalize such an agreement. Art. referenced. 37 of the Civil Code of the Russian Federation, which prohibits paid transactions between relatives and children. Although in this case the remuneration of the transaction is a big question. After all, the child does not pay anything; money from the budget goes into payment. However, if there is opposition from the notary and Rosreestr, then they do this - the mother of the minor purchases the housing, and after registering it as the property, gives the child a share in the property. I note that such a two-part scheme costs the mother about 15 thousand more. Because before purchasing, you need to certify with a notary the obligation to allocate a share to the child, and then make the allocation.
Many experts directly say that it is better not to use maternity capital in intra-family transactions. For example, lawyer Lyudmila Plotnikova cited a case from practice. They were not allowed to buy a share in a relative’s apartment with maternity capital, so it (the share) was sold to a third party and only then he sold it to the family, who had the right to maternity capital. The agreement under which a third party bought a share in the apartment immediately stated that he was obliged to sell this property to the specified family.
Natalia Devkina
Executive Director of Zyryanova Real Estate Bureau LLC
Almost all transactions between relatives in which maternity capital is used turn out to be problematic. Usually, if you plan to use these funds, then we look for an object on the market. It happens that the transaction takes place in two stages: the parent buys the property and, within six months, registers shares in the name of family members, but it happens that the purchase and sale agreement immediately states that the property is being purchased as shared ownership.
There are situations when you have to use your ingenuity to fulfill the requirements of the Pension Fund (it is the one that transfers the funds of the mother capital) and purchase the selected object.
Natalia Mikhailyukova
lawyer of the Russian Guild of Realtors
A family entitled to maternal capital intended to buy out a share in a private house from their relative. A house for two owners, that is, half a house (three rooms) is a separate property. This half has four relatives who are co-owners, all of whom have equal shares. The pension fund did not approve the purchase of one of the shares for maternal capital. Then the contract was reissued - it set out the procedure for using the residential building, in addition, an agreement was concluded on the procedure for using the housing, which stated that the family buying the share received a separate isolated room for use. The Pension Fund was happy with this. Maternity capital funds have been allocated.
Close and interdependent relatives
The first thing to remember is how the law interprets relationships between family members.
- Parents and children, grandparents, brothers and sisters, grandchildren - these people are considered close relatives. Adopted children and parents are treated as relatives by law - they are full-fledged members of the family.
- There is another category - interdependent relatives. This includes parents and children, guardians and people under guardianship, as well as brothers and sisters - both full-blooded and half-blooded. This category also includes spouses and caregivers. Adoptive parents and adopted children, as in the previous case, are equated to natural family members.
These concepts are worth knowing so as not to get confused in banking definitions and legal formulations. Some organizations separately specify the conditions for transactions between close and interdependent relatives.
Avoid problems with the division of marital property
According to the law, property acquired by spouses during marriage is jointly acquired. If the husband is formally the owner of such an apartment, he cannot sell the apartment to his wife, since she is already a co-owner by default.
Ivan Volkov
Managing Partner of LLC "Legal"
The owner can carry out transactions with jointly acquired property with the consent of the spouse. That is, for example, he can donate property. Including giving it to your wife herself. Then he ceases to be a co-owner. Formally, such a transaction must also obtain permission from the spouse. That is, she must allow the apartment to be donated to her. However, I have not heard of such actions being carried out in practice. Usually, if there is a desire to redistribute property, a marriage contract or an agreement on the division of common property is concluded between a husband and wife. After concluding such an agreement, an application is submitted to Rosreestr, and property rights are officially secured.
The METRTV.ru portal previously spoke in detail about the difference between a marriage contract and an agreement on the division of property. The main difference is that the marriage contract may indicate the general principles of division of property, while the agreement must indicate specific objects and, on the basis of the agreement, the transfer of ownership rights to houses, apartments or their shares is registered.
Natalia Mikhailyukova
lawyer of the Russian Guild of Realtors
I know a married couple. They purchased several properties on credit. After repaying the loan for each property, they enter into an agreement on the division of property in relation to this property. Then to the next one and so on. If property issues are settled, then even after a divorce people have normal relationships. Let me also remind you that the agreement on the division of property has been notarized since 2016. This costs 0.5% of the cost of the object, but not more than 20 thousand rubles. The cost of notarization of a marriage contract is usually in the range of 5.5 - 15 thousand rubles.
Form for drawing up an agreement for the exchange of shares of an apartment
The exchange agreement is drawn up on a white sheet of A4 paper in printed or written form. The sheet should be clean, smooth, not wrinkled. You need to use black or blue ink; in the case of a printed version, standard font and text size, without indents, additional characters or color highlights. The document is notarized, a specialist checks the correctness of the agreement from a legal point of view, and also finds out all the subtleties of the exchange, for example, to what extent the parties’ share is equivalent.
Standard information about the exchange agreement:
- passport details of the parties involved in the agreement;
- an accurate description of the objects of exchange;
- the amount of the difference in the cost of objects, if the contract provides for it;
- the procedure for carrying out the exchange procedure itself is indicated: the sequence of releasing square meters, extract, registration, etc.;
- special conditions, life situations, force majeure circumstances (if this happens) are listed;
- responsibility of the parties for fulfilling the terms of the agreement;
- actions in the event of force majeure, etc.
The structure looks like this: title - date and place of preparation - names of the parties - subject of the agreement - exchange procedure - responsibility of the parties - special provisions - conclusions.
The more detailed the exchange agreement is drawn up, the fewer problems and nuances will arise after its registration, in practice. All data on the share of real estate must be entered into the act: size, location, cadastral number, who it is registered with, etc.
Hide property from creditors
Donating or fictitiously selling an apartment to a relative is a fairly common practice. In this way, borrowers (entrepreneurs or ordinary citizens) try to hide property from creditors. If housing is transferred to one of the spouses (who is not being pursued by creditors), then, as indicated above, a marriage contract or property division agreement is used.
Ivan Volkov
Managing Partner of LLC "Legal"
If a person has incurred debts and transferred an apartment to his wife through a property division agreement, creditors may try to prove that there was an abuse of right in this case and challenge the transfer. After which they will be able to foreclose on the apartment.
Donation or sale is also used to move housing away from the demands of creditors. The donee (buyer) can be not only the spouse, but also another relative.
Yulia Balay
director of the office of the Academy of Sciences "Novosel"
If a pre-bankrupt businessman transfers property to relatives through donation or sale, then all such transactions completed within three years before bankruptcy will be carefully scrutinized and may be challenged. However, even if the apartment was sold during this period, but at the market price and real money was received for it, then it is almost impossible to challenge such a transaction. Or, if, for example, all the property is registered in the name of the spouse and she has sufficient income to buy it all, then it is also unlikely to be able to challenge such a division of property.
Documents for a mortgage loan
First of all, the bank must make sure of the client’s solvency. To do this, the borrower provides:
- passports of the borrower and co-borrowers (guarantors);
- information about income in the form required by the bank;
- a copy of the work book or document confirming the employment relationship with the employer;
- additional documents upon request of the bank.
If the solvency of the citizen does not raise doubts in the bank, then it must provide:
- documents for the mortgage loan facility;
- certificate for maternity capital and a certificate confirming the balance of funds;
- documents confirming that the parents have other housing.
The final list of documents depends on the individual characteristics of the transaction and the requirements of the credit institution.
Transfer the apartment to a relative so that he can take out a loan
If your brother/grandson/son-in-law intends to start a business, then why not give him an apartment, against which he can borrow money. Of course, a relative (the former owner of the apartment) must be prepared for the fact that if a novice businessman goes bankrupt, the collateral apartment will go to the creditor.
Ivan Volkov
Managing Partner of LLC "Legal"
A rather sensational case that we are currently dealing with is that of a mother with many children, Irina Komova. Her mother transferred an apartment to Irina’s ex-husband under a purchase and sale agreement at a price reduced several times, but did not receive any money for it. It was assumed that he would take out a loan to buy a home for himself, since after the divorce he was left without a roof over his head. A man invested money in a business instead of housing, went broke, and now the woman and three children are being kicked out of the apartment by debt collectors.
