Waiver of the pre-emptive right to purchase a share in an apartment

Last update: 06/27/2021

The pre-emptive right to purchase a share of an apartment is the right of co-owners (co-owners) to buy a share in the apartment from their neighbor before he sells it to anyone else on the side. The same applies to a separate room in a communal apartment.

At the same time, such a right of first refusal (redemption) applies not only in the case when a neighbor sells his share under the Sale and Purchase Agreement, but also in the case when he changes his share under the Exchange Agreement, since the rules on purchase and sale (clause 2, article 567, Civil Code of the Russian Federation).

Let's explain in more detail how it all works.

If an apartment is owned by several people, then such property is common , and it can be of two types:

1. common joint property, or
2. common shared ownership.

For more information about these types of apartment ownership, see the separate Glossary article at the link.

Here we will consider only the case of common shared ownership , since it is this that allows you to sell a share in an apartment , and it is here that the right of first refusal to purchase this share (or room) applies.

Extract from the House Register - Who? Where? When? Form, type and composition of this document.

Shares in an apartment can be either “ ideal ” (i.e. not allocated in kind, for example – 1/3 or 3/25), or “ real ” (i.e. allocated in kind, for example – a separate room of 15 sq. m.).

Each participant in shared ownership has the right to sell his share in the apartment, both in the form of a separate room and in the form of an “ideal share”. But first, he must offer to buy out his share to other participants in shared ownership (that is, other apartment owners, neighbors). The law gives neighbors the same right of priority to purchase a share in their apartment, in relation to any other buyer “from the street”.

And only if the neighbors refuse to buy out the share, the Seller of this share has the right to sell it on the open market to a third-party buyer.

Important point! An offer to buy out a share in an apartment for co-owners must contain the same conditions (primarily the price) that will be offered to all other buyers. Otherwise, for example, if the co-owners are offered a buyout of a share, say, for 100 rubles, and then this share is sold on the market for 90 rubles, then the co-owners can challenge this transaction on legal grounds.

The pre-emptive right to purchase a share of an apartment is regulated by article - Art. 250 Civil Code of the Russian Federation. And if this right has been violated (i.e., the share of the apartment was sold to a third-party buyer without notifying the neighbors), then any of them, within three months, can demand through the court that all the rights and obligations of the buyer be transferred to him (clause 3 of this article).

!!! Online order Extracts from the Unified State Register and other SERVICES for purchasing an apartment - HERE.

In what cases may registration of a transaction with an apartment fail? Reasons for suspension and refusal to register rights – see the link.

Any of the co-owners in the apartment can use their priority right to buy out a share. And if there are several such applicants, then the Seller of the share himself chooses which of them to sell it to.

But what if your roommates, having such a priority right to purchase, do not buy out the share offered to them? Then the Seller must record the waiver of the right of first refusal . How it's done? Read below.

What documents remain with the Seller and the Buyer after buying and selling an apartment, and what are they for?

The preemptive right to purchase is the right of each of the participants in common ownership to have a preferential right over outsiders to acquire a share, which is sold by one of the participants at a set price on equal terms.

If the owner of the shares decided to sell his share to a specific member of the company, then even if two or more holders of common shared ownership expressed a desire to exercise the preemptive right to purchase shares, the seller can independently choose the buyer of the share. But, if a person has not been selected in advance, and there are several interested parties, then the seller enters into contracts with each of them, and the sold share is divided among all buyers in proportion to their participation in the authorized capital. With such a distribution of shares, assignment of rights of first refusal is not permitted.

Registration of the pre-emptive right to purchase shares, real estate and other property and the waiver of pre-emptive rights are regulated by Article 250 of the Civil Code of the Russian Federation.

Preemptive right to purchase real estate: land, room, apartment and other property

Before selling his share to an outsider, the seller must not only notify other participants in the common property of his intention to sell the share, but also indicate the price and other conditions of sale. The transfer of a share to another person (buyer) can be carried out only after a documented refusal of the other participants from the purchase, as well as if within one month none of the participants buys the sold share in the ownership of real estate and within ten days for movable property .

If the sale of a share is carried out in violation of the right of first refusal, any participant in the common property may, within three months, legally demand the transfer of the rights and obligations of the buyer to him. At the same time, the right of first refusal does not allow assignment to another person.

As mentioned above, the seller can sell a property that is in shared ownership only after receiving a waiver of the right of first refusal.

Waiver of the right of first refusal - consent to sale

The presence of such a waiver will allow participants to sell shares to ordinary buyers who are not co-owners of the common property. To obtain a waiver of the priority right to purchase, the owner of a share of the common property is sent a notice by registered mail with a notarized notification. Failure to respond to a letter within one month is automatically recognized as a waiver of the right of first refusal. In this case, the seller receives a notarized certificate of lack of response from the addressee, which is considered as a refusal of the right to purchase.

Also, in order to carry out state registration of rights and obtain refusals, it is possible to gather co-owners of property together to submit applications, but in practice it is rarely possible to organize a meeting of all participants who, as a rule, are not interested in promptly concluding a transaction for the sale and purchase of a share.

Peculiarities of notarization of the pre-emptive right to purchase a share

To obtain a waiver of the right of first refusal in notarial form, you must:

• personal presence of the co-owner of the property that needs to be sold;
• documents confirming ownership of the property being sold;
• identification document (passport).

Registration of the pre-emptive right to purchase provides for the issuance of waivers of the pre-emptive right to purchase a share of the property, the originals of which must be with the owners. They, in turn, can use them in court in case of disputes.

Features of registration in Rosreestr

To register a DCT of a share in an apartment, in addition to standard documents (the DCT itself, passports, an extract from the Unified State Register and state duty), you must bring evidence of compliance with the pre-emptive right. These include:

• shipping receipts and returned letters;
• certificates of transfer of notice from a notary;
• notarial waivers.

Evidence does not need to be brought if a share or room in a communal apartment is sold to a co-owner or neighbor in the exercise of a pre-emptive right.

Features of this type of property

First of all, it is worth deciding what kind of residential premises has the status of a communal apartment?

1. All owners of residential premises own it on the basis of various documents (social tenancy agreements or certificates of ownership).
2. Payment for housing and communal services is made through different personal accounts created for each of the owners.
3. The common areas in the apartment are shared ownership of the owners.

Let's take a closer look at the features of selling a room in a communal apartment or dormitory.

Is it possible to sell a premises in a communal apartment without the consent of the neighbors?

Important! It is impossible to sell a room in such an apartment without obtaining the consent of the neighbors. This will be the basis for challenging the transaction and declaring it void.

This option is only possible if the room is sold to one of the co-owners, that is, to one of the owners of another room in the same apartment.

What if they are against it?

Situations often arise when neighbors are against the sale of premises in a communal apartment and prevent this in every possible way. This can manifest itself both in scandals, attempts to survive a neighbor, to disrupt viewings of the room by potential buyers, and in threats not to sign a waiver.

In the latter case, they show their legal illiteracy, since Art. 250 of the Civil Code of the Russian Federation gives neighbors a period of time to purchase or refuse, while the absence of a response is regarded as a refusal of the advantage in purchasing . Another way to prevent a sale is to enter into an agreement to purchase a room in response to a notice.

At the same time, the neighbors are not going to buy it, they are stalling for time and postponing the date of the transaction. What can protect the seller in such a situation? You should spare no expense and contact a notary who will certify your neighbor’s consent to the purchase.

The agreement must indicate:

• the exact period of the purchase and sale transaction;
• the price for which the room is sold;
• confirmation by the Buyer of awareness that if the transaction fails due to his fault, he will be deprived of his pre-emptive right, and the Seller may sell the room to unauthorized persons.

If relations with neighbors are not built on mutual respect, and you anticipate even the slightest possibility of problems with them, it is worth hiring an experienced realtor who will help organize the sales procedure.

If you are going to sell a share in an apartment or a room, we advise you to read the information about whether this is possible if the owner is a minor citizen.

Selling without consent

It is possible to sell owned square meters of any housing without obtaining the consent of the owners if they ignored the notifications received.

However, it may be that the co-owners will agree to buy the room. Then you can respond to the notification in a non-official manner (send a letter back, fill out an application, etc.).

It is necessary to begin concluding a purchase and sale agreement as quickly as possible

But what to do if there are many apartment owners and they all expressed a desire to purchase the meters put up for sale? The law provides two legal ways out of the situation.

Table 1. What you can do in a situation where several co-owners want to buy out the space you own

If only one buyer is selected among the owners, or he is the only one who responded to the stated offer, then before signing an agreement with him, it is necessary to officially re-notify the other homeowners about the transaction, who can:

• how to claim the share being sold;
• and not have any claims against her.

However, the notification is for informational purposes only; written consent to the sale will no longer be required in this case.

According to the letter of the law, you can choose the only buyer of the share yourself, or simply distribute it among all co-owners who want to buy it

The law provides for a refund of income tax on the purchase of an apartment in 2021. But you need to know that there are some restrictions on the maximum amount and period of circulation. There are many nuances that are important to know about, as they affect the ability to receive money from the state and the maximum amount. Read more in the special article.

Conducting a sale

Once you have identified the person who will subsequently become the owner of the home, you need to formalize a traditional purchase and sale transaction.

To conclude this according to the rules, you must collect the following documents to accompany the transaction:

• passport;
• property agreement;
• a certificate of absence of debts to the housing and communal services company;
• consent from neighbors, given in writing, that they are not against the procedure being performed;
• an extract from the Unified State Register confirming the right to own a share;
• technical type documentation.

Sample extract from USRN

Also, depending on the situation, you may need to provide these papers:

• marriage certificates;
• statement about the absence of property encumbrances;
• consent of the seller's official couple to sell the share.

Having collected these documents, proceed to drawing up the purchase and sale agreement. In this case, the text contains information about:

• number of meters sold;
• payment procedure for the purchase;
• parties who decided to enter into a transaction.

Real estate purchase and sale agreement

Deal with a minor child

It may be important to know that the transaction discussed in the article can also be concluded with minor Russian citizens. Before reaching 14 years of age, the child’s parents decide on this and also sign for him on the documentation; after 14 years of age, the child can endorse the official acts of sale independently.

Please note: the scheme of interest for the sale of housing seems impossible if permission from the guardianship authorities has not been previously obtained.

However, there is no guarantee that this government agency will give permission. Previously, employees of this official body will be required to make sure that the baby:

• owns a dwelling of similar size to the one being sold;
• will receive funds received from the sale of the share into a personal bank account, and will be able to manage the money after reaching legal age.

It will take the designated government agency 2 weeks to verify these conditions, after which you will receive the appropriate certificate.

According to the law, a transaction can be carried out with a minor child, but on the condition that it is approved by the guardianship and trusteeship authorities, which are obliged to monitor the procedure

Pre-emptive right to purchase

Important! The main feature of selling a room in a communal apartment is the pre-emptive right to purchase from the co-owners of the premises.

The law is regulated by Art. 250 of the Civil Code of the Russian Federation, which indicates the advantage of participants in shared ownership when selling a share, and also establishes the procedure for exercising this right. But part 6 of Art. 42 of the Housing Code of the Russian Federation indicates the same right specifically for a communal apartment.

Who has it?

All persons who own a share in the apartment have an advantage, regardless of the size of their participation in shared ownership. The emergence of such a right is quite natural, because people living in communal apartments will be able to improve their living conditions.

However, the preemptive right when purchasing a share in a communal apartment appears when a person sells it to an outsider , but if the transaction is made with another shared owner, then no advantage arises.

That is, if other shareholders in the apartment also want to buy a room, then the seller has the right to choose a buyer at his own discretion.