As specified, this mechanism was introduced in 2013 to reduce the risks of fraud, for example, when a passport or ownership documents are lost. It also helps protect the rights of older owners. The ban will not apply if the transaction is carried out by a court decision or at the request of a bailiff.
In addition, Rosreestr recommends not allowing electronic registration of transactions . You can also conduct a real estate transaction via the Internet using an electronic signature. It is clarified that in 2021 this procedure was tightened: scammers managed to issue electronic signatures for the real owners and then sold the housing. Now you can complete a transaction via the Internet only if the owner has previously notified Rosreestr in writing that he allows electronic transactions (this can be allowed for one property or for all of them at once).
There are a number of exceptions: documents in electronic form will be accepted in any case if they are sent by a bank, government authorities, a notary working with Rosreestr, if the enhanced electronic signature was issued by the Federal Cadastral Chamber. Rosreestr always notifies owners by regular or email about the receipt of electronic documents relating to their real estate for registration, the department emphasizes. Therefore, through the MFC, enter your current email address into the Unified State Register.
Rosreestr advises to carefully check the data in the documents . So, you need to ask the seller for the original property documents and carefully study them. This could be an agreement of transfer (privatization), donation, purchase and sale, participation in shared construction, etc. In addition, ask for an extract from the Unified State Register of Real Estate about the main characteristics and registered rights to the object. You need to make sure that the current owner is selling the property. You should check whether the seller is the only owner or only owns a share. If the shares are owned by minors, the seller must provide guardianship permission for the sale.
You should be wary if housing often changes hands over a short period of time, Rosreestr notes. A judicial challenge to even one of the transactions in the chain can lead to the loss of property by the last owner. To do this, you need to order an extract from the Unified State Register of Real Estate on the transfer of rights to the property.
The department recommends being especially careful if the seller acts on behalf of the owner under a notarized power of attorney . You can check the authenticity of the power of attorney on the official website of the Federal Notary Chamber.
The expert spoke about the risks of losing an apartment even with a will
A will is not always a guarantee of inheriting housing. It is important to remember a number of points: the presence of “mandatory” heirs, the use of maternal capital to purchase housing, and the possible later expression of the will of the deceased. They may also try to challenge the will, Elena Glushkova, a member of the commission of the Federal Notary Chamber for International Cooperation, told the Prime agency.
If at the time of death the testator has minor or disabled children, a spouse or parents, as well as other disabled dependents, all of them are classified as “obligatory heirs” and have the right to an obligatory share in the real estate.
Problems with receiving an inheritance may arise if maternity capital was spent on the purchase of an apartment that was bequeathed to you, but the testator did not provide his family with ownership rights to the property during his lifetime. Then the issue of shares is resolved only through the court.
“It happens that when opening an inheritance case, another will is discovered for the specified apartment, certified later than the original one. It comes into force,” the expert said.
In addition, persons whose interests have been violated can challenge the will on a number of grounds:
- The testator did not sign the will;
- The will was drawn up using threats and coercion, or under conditions of difficult life circumstances;
- At the time of drawing up the document, the testator was in a state in which he could not be fully responsible for his actions. For example, in the case of mental illness;
- There were violations in the procedure for certifying the will.
Such accusations can be refuted. This can be done by video recording the process of probate. The notary provides the recording at the request of the court, the expert concluded.
Insurance against loss of apartment. How does title insurance work?
Who has the title of owner? From a legal point of view, this is the owner of the property - the one who is recorded in the documents as the owner and has rights to it. How to avoid the risks of loss of title and what is title insurance? Let's figure it out.
A single lady, a retired military personnel, “very profitably” purchased an apartment in the Moscow region using a military certificate. She took out a consumer loan for 1 million rubles for repairs. As soon as the repairs were completed, an unexpected obstacle arose - an unknown person appeared. At one time, his right to privatize the apartment was not realized, and he did not refuse privatization. This relative was simply “forgotten” when they compiled a certificate about the persons living in the apartment at the time of privatization.
To the woman’s horror, the “relative” proved in court his right to 1/2 share of the apartment. Of course, there is a possibility of a fraudulent scheme in this case, but law enforcement agencies found no evidence. If the buyer had insured the owner's title in advance, the deprivation of ownership of the apartment would have been recognized as an insured event - the insurance company would have paid compensation. Now the new owner of the apartment will most likely have to sell it and move to cheaper housing.
If she had insured the title of the property, such a dramatic development of events could have been avoided: the insurance company would have paid her the full amount of the transaction.
The owner's title can be insured (not only for a specific transaction, but also for all previous ones). This is quite reasonable if there is a risk of losing your rights to newly acquired real estate - for example, in a situation where the transaction has been contested. The deal is disputed for a number of reasons: if they forgot to take into account the rights of children, heirs or those serving a prison sentence; if the transfer of rights (even the previous one) was made erroneously or fraudulently; if one of the parties to the transaction has the status of incompetent.
For those who want a real estate lawyer to do all the work
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Did you buy an apartment, but the previous owner sued it?
Moreover, it was not possible to get the seller to return the money paid for the property? In such cases, bona fide purchasers of residential premises will be able to count on compensation from the state. But it’s still better to find out how to avoid such situations before buying a home.
From January 1, 2021, changes to the Law on State Registration of Real Estate come into force, giving a bona fide purchaser of residential premises the right to receive compensation from the state in the event that the owner claims this premises in court1.
We suggest recalling in what cases the court, following a claim by the owner2, can deprive a bona fide purchaser of housing, what actions should be taken when purchasing residential real estate to prevent this from happening, and what advantages the adopted legislative changes give bona fide purchasers of residential premises.
Combining a communal apartment into a separate one
Recently, redevelopment has ceased to be a rarity, including redevelopment with the combination of two or more apartments. Often clients purchase not one, but, say, 2-3 small apartments with the goal of combining them into one through redevelopment. This is very convenient, for example, to occupy an entire floor, get a multi-sided, two-story one, or greatly increase comfort and organize several bathrooms.
What are the obvious advantages of combining two apartments? Firstly, due to the demolition of the walls, the total area of the combined area increases. Secondly, there is no need to pull pipes to install a second bathroom - it already exists from the start. Thirdly, it becomes possible to clearly divide the living space into public and private zones.
Who is a bona fide purchaser?
A purchaser will be considered a bona fide purchaser if, at the time of his completion of a paid transaction with housing, he did not know and could not know that the person who transfers the residential premises to him does not actually have the right to do so. That is, the acquirer will have to prove in court that, when making a transaction to purchase real estate, he showed reasonable care and diligence and took all possible actions in order to find out whether the seller had the right to dispose of the property3. An approximate list of such actions will be described below.
As a general rule, a bona fide purchaser who received residential premises on the basis of compensation, i.e. Having paid the actual price for it, he cannot be deprived of housing. However, the law provides for cases when the owner has the right to demand the return of property he has lost.
In what cases will the court oblige a bona fide purchaser to return the home?
Reclaiming one's property from someone else's illegal possession (vindication) is one of the ways an owner can protect his property rights. You can take possession of someone else’s property in different ways – from banal theft to bona fide acquisition on paid terms. And the latter will not always guarantee the buyer of real estate the protection of acquired rights to it.
So, in what cases can a bona fide purchaser be deprived of housing at the request of the actual owner? For this, the legislator has defined several conditions.
- First, the residential premises must be removed from the possession of the owner or other legal owner (for example, a tenant or trustee) against their will. The legislator partially reveals the meaning of the words “beyond their will”, indicating that property can be lost, stolen or removed from possession in any other way. This refers to cases where the owner did not want these consequences to occur and ceased to own the residential premises as a result of actions or decisions of third parties that were not approved by him in the future.
Such actions or decisions may not always be criminal in nature. It is easy to simulate a situation in which the seller, in pursuance of a certain court decision, received an apartment from the owner, sold it to a bona fide purchaser, and subsequently a higher court overturned such a decision. In this case, the residential premises seized from the owner on the basis of a judicial act will also be considered removed from possession against his will4.
- Secondly, the residential premises must be purchased from a person who did not have the right to alienate it. The point is that the person who acted as the seller of the property did not actually have the authority to dispose of it: he was not the owner and did not receive instructions from him to sell the property (by issuing a power of attorney for the sale, concluding an agency agreement, etc.).
The combination of these two circumstances will indicate that the buyer of residential premises will most likely have to part with his purchase if the owner initiates vindication. And the most offensive thing for a bona fide purchaser in this situation will be that, recognizing the transaction for the acquisition of real estate as invalid, the court will not be able to oblige the seller to return the money paid for housing to the failed buyer5.
How to prevent the illegal transfer of rights to real estate - read the materials “To prevent fraudsters from transferring real estate into someone else’s ownership... the owner needs to submit an application that will impose restrictions on transactions with his property”, “Will the new law prevent fraudsters from taking real estate from its owners” , “What will prevent scammers from taking a loan in your name or taking away real estate.”
What documents will be required?
To complete the entire process, you will need to prepare a serious package of documents. Without at least one of them, redevelopment will not take place legally. Required documents may include:
- consent of all property owners;
- technical certificates of each object;
- title papers;
- extract from the house register;
- sometimes neighbors' consent is required.
Each paper has a specific role in the design of the redevelopment. If there is no document, you must first draw it up and then apply to the BTI to obtain permission to merge.
Review of the application takes from several weeks to six months. That is why it is necessary to approach preparation thoroughly so as not to be rejected.
Can they claim the only housing?
It often happens that an apartment or a country house purchased by a person becomes the only place suitable for living for him and his family members. Current legislation establishes a rule according to which such housing cannot be foreclosed on (executive immunity), except in cases where it is encumbered with a mortgage6.
However, the problem is that the nature of claims for recovery is not identical to claims for collection. Vindication is the subject of the return of a specific item - living space. While a claim for collection involves the “seizure” of property owned by the debtor in a certain sequence7: funds in rubles, if they are insufficient - funds in foreign currency, if they were not enough - precious metals, etc.
In addition, if we interpret the provisions of the law literally8, then “foreclosure on the debtor’s property” (collection itself) and “seizure from the debtor of property awarded to the recoverer” (vindication), even from the point of view of enforcement proceedings, represent different measures of compulsory execution.
Therefore, the courts take the position that the acquirer is not endowed with executive immunity in the event that his only housing is demanded. It does not matter whether he is conscientious or not.
The position of the courts is similar in cases involving the application of the consequences of an invalid transaction for the acquisition of housing (restitution): a reference to the fact that the residential premises are the only suitable place for the purchaser and his family to live will not have legal significance.
How a lawyer can help when combining rooms
If you want to transform your living space from a communal apartment into an apartment, then you will probably need advice from a lawyer or lawyer. In practice, when resolving this issue, the matter is not limited to consultation with a lawyer or attorney. As a rule, in addition to direct consultation, a lawyer and lawyer are involved in drawing up an agreement on combining rooms in a communal apartment into one apartment, and also represent the interests of their clients in local executive authorities, a management company, and judicial authorities.
Sources
- https://UrMetr.com/kvartira/voprosi/prava-sobstvennika-doli-v-kvartire
- https://ros-nasledstvo.ru/propiska-v-kvartire-s-dolevoj-sobstvennostyu/
- https://kvartira-bez-agenta.ru/glossarij-rieltora/vidy-sobstvennosti-na-kvartiru/
- https://allo-urist.com/kak-obedinit-doli-v-kvartire-na-odnogo-sobstvennika/
- https://JuristPomog.com/administrative/ownership/pokupka-kvartiry-u-dvuh-sobstvennikov.html
- https://zakon-dostupno.ru/pravo-sobstvennosti/obedinenie-doley-v-kvartire/
- https://pereplan-one.ru/stati/soglasovanie-obedineniya-komnat.html
- https://jur24pro.ru/populyarnye-temy/zhile-kvartiry-doma/obedinenie-komnat-v-kommunalke-kak-mozhno-obedinit-komnaty-v-kommunalke-v-otdelnuyu-kvartiru/
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What methods of protecting rights does a bona fide purchaser have?
1. The acquirer has the right to present evidence of his good faith and to object to the owner’s claims in the case of vindication of residential premises. If the court decides to return the property to the actual owner, then at least it will recognize the purchaser as bona fide, and this is already a lot.
2. Recognition of the acquirer as being in good faith gives him grounds to file a claim in court for compensation of losses against the person through whose fault the problematic residential premises ended up in the possession of the acquirer. Losses may consist, for example, in the amount paid to the seller (real damage), as well as in lost income that the purchaser could have counted on if his right had not been violated (lost profits). This may be a fee for renting out housing if, by the time of return, the purchaser has already concluded an agreement with the tenant for a certain period.
3. If a bona fide purchaser, during the period of ownership of the housing, incurred expenses for its preservation, maintenance (for example, carried out the necessary major repairs) or improvements (routine repairs), then he has the right to demand that the owner reimburse such expenses or retain the improvements he has made. If the improvements are inseparable without damaging the integrity of the housing, the purchaser has the right to demand compensation from the owner for the costs incurred13.
