Agreement for the exchange of equivalent apartments. Sample and form 2021-2022

An agreement for the exchange of equal apartments is an agreement under which the parties exchange real estate of the same value that belongs to them by right of ownership.

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The subjects of an exchange agreement can be both individuals and legal entities. Thus, the parties to this agreement may be the owners of residential premises.

An agreement for the exchange of equivalent apartments must be drawn up in writing, since an oral conclusion of the transaction is possible only if the subject of the agreement in its value does not exceed the minimum wage ten times.

In this regard, below we will look at how such a document is drawn up and what nuances you should pay attention to when preparing it.

Agreement for the exchange of equivalent apartments

Kurgan
October 25, 2023

We are: Dmitry Stepanovich Shestakov, born on April 12, 1999, living at the address Kurgan region, Kurgan city, Trotsky street, house 123, apartment 456, passport XXXX XXXXXXX, issued by the Federal Migration Service of Russia for the Kurgan region in the city of Kurgan on April 12, 2019, hereinafter referred to as the Seller 1, on the one hand, And Seleznev Gennady Albertovich, born on May 13, 1999, residing at the address Kurgan region, Kurgan city, Alexander Nevsky street, building 321, apartment 654, passport XXXX XXXXXXX, issued by the Federal Migration Service of Russia for the Kurgan region in the city of Kurgan on May 13, 2019 , hereinafter referred to as Seller 2, on the other hand, have entered into this agreement as follows:

The preamble to the agreement traditionally states:

type of contract being concluded;
place and date of the transaction;
names and roles of parties to the agreement;
residential address and passport details of individuals.

In order for an agreement for the exchange of equivalent apartments to enter into legal force, the parties must include provisions on all essential conditions in the text of the document. Such conditions, within the framework of this agreement, usually include:

subject of the contract;
the actual value of the property that is the subject.

Contract form

There are no special requirements for the form of the exchange agreement. This is a regular purchase and sale agreement, but with its own specific points. Therefore, the exchange agreement is concluded in a simple written form, where the subject of the relationship is two real estate objects, but actions with them are carried out within the framework of one document.

The number of copies is equal to the number of parties to the agreement with an additional copy for the registration authority (Rosreestr). The law does not require notarization of the exchange agreement, with the exception of the following cases:

when the owner of real estate is a minor or a citizen with limited legal capacity;
alienation of shares in common ownership of a real estate object (with the exception of alienation of shares of a land plot and simultaneous alienation of shares by all participants in shared ownership).

Item

Information about the subject of the contract is the basis of any agreement. In the case of an exchange agreement, the object itself is the property itself, which is exchanged by the Counterparties. At the same time, it is important to indicate comprehensive characteristics of this property so that no disagreements arise later. In an exchange agreement where the subject is residential premises owned by the Counterparties, the following characteristics are indicated: - the address at which the residential premises are located; — the floor on which the apartment is located; - the number of square meters in the apartment; — number of rooms; So, information about the subject of the agreement in the text of the document is written as follows:

The parties, in accordance with this agreement, transfer to each other the following residential premises belonging to them by right of ownership: Dmitry Stepanovich Shestakov transfers in favor of Gennady Albertovich Seleznev an apartment located at the address: Kurgan region, Kurgan city, Lomonosova street, building 38 (Thirty-eight), 7 (Seventh) entrance, apartment 246 (Two hundred and forty-six), 18 (Eighteenth) floor. The apartment consists of 6 (Six) rooms, the total area is 65 (Sixty-five) square meters. Seleznev Gennady Albertovich, in turn, transfers in favor of Dmitry Stepanovich Shestakov an apartment located at the address: Kurgan region, Kurgan city, Lenin street, building 47 (Forty-seven), 6 (Sixth) entrance, apartment 423 (Four hundred twenty-three), 11 (Eleventh) floor. The apartment consists of 5 (Five) rooms, the total area is 66 (Sixty-six) square meters. At the time of the exchange, the actual cost of each of these apartments, according to both parties, was set at 2,000,000 (Two million) rubles 00 kopecks. The parties are the owners of residential premises based on the provision of an extract from Rosreestr. The apartments do not belong to third parties by right of ownership, are not under mortgage or under arrest.

Legislation

Civil law does not separate the exchange and sale of real estate.
Both procedures are regulated by the same rules of law, prescribed in Chapters 30 and 31 of the Civil Code. However, unlike a sale, in which one participant (seller) transfers real estate to another (buyer), receiving payment in cash equivalent, each participant in the exchange is both a seller of property and its buyer (Article 567 of the Civil Code), therefore in the contract they are referred to as sides numbered one and two. The owner has the right to exchange his property for any other. Ideally, barter involves the exchange of similar objects, with exceptions possible:

exchange with additional payment (for example, a smaller area is exchanged for a larger one);
exchange of living space (one large apartment for several small ones);
exchange of different types of property (apartment for a car, securities, residential building, etc.).

From a legal point of view, the terms “exchange” and “barter” are different. However, in practice, the use of both concepts is not erroneous.

Thus, exchange refers to a transaction with state apartments (Article 72 of the Housing Code). The parties to the agreement are not owners, but have the status of tenants of municipal housing. The exchange procedure is regulated not only by the civil code, but also by the housing code, and permission from the Administration is required to carry out the operation.

The participants in the exchange are the owners of the apartments and have the right to dispose of them as they wish; no permits are required.

The law prohibits the exchange of municipal apartments for owned property and vice versa.

Rights and obligations of the parties

This section is compiled to indicate the obligations of the Counterparties under this agreement. Interpretations of the wording of obligations may look different due to the current principle of freedom of contract in the Russian Federation. We, in turn, will try to highlight the main provisions that are prescribed in such documents:

The parties have the right to: • Demand the transfer of ownership of the residential premises specified in the clauses on the subject of the agreement. The parties undertake to: • Transfer to each other the apartments specified in the text of the document that correspond to the characteristics stated in the agreement. • Re-register ownership of apartments within 3 (three) days from the date of signing the agreement. • Fulfill your obligations in strict accordance with this agreement.

Features of the agreement

The main nuance of barter contracts is the dual nature of the agreement, that is, each participant has the status of both a seller and a buyer. In addition, this procedure has other features:

the contract is subject to the rules of civil law regulating the procedure for the sale (purchase and sale) of property;
if there is no mention in the contract of the value of the objects to be exchanged, they are automatically recognized as equivalent;
the obligation to bear the costs associated with the transaction falls on both parties in equal proportions;
If there is a discrepancy between the terms of transfer of real estate, the rules on counter-execution are applied to the agreement (Article 328 of the Civil Code).

The text of the agreement on the exchange of an apartment for other property takes the form of a written document, which must necessarily go through the registration procedure with a specialized body.

Participants in the transaction can be both citizens (Russians or foreigners) and organizations (legal entities and entrepreneurs). It is also possible for the Russian Federation and its constituent entities to participate in the agreement.

Responsibility of the parties

This section provides information about the circumstances under which the parties bear financial responsibility. Below we present the main provisions that may be written in the text of the document:

The parties bear financial liability in the event of non-fulfillment or improper fulfillment of obligations under this agreement. Counterparties are responsible for deficiencies in the alienated objects if they are identified after signing the agreement. If these shortcomings were discussed before signing the agreement, the parties do not bear responsibility.

Registration

Any procedure that results in the acquisition of real estate is subject to registration with Rosreestr. An apartment exchange agreement is no exception. An exchange agreement that has not been registered has no legal force. In this case, it is not the text of the agreement itself that is subject to registration, but the rights acquired through its conclusion.

To register ownership, both barter participants, in person or through persons authorized by a power of attorney, must appear at the Rosreestr authority or multifunctional center (MFC) with the following list of papers:

application for registration of the transfer of ownership rights to old and acquisition of rights to new property;
personal document (passport);
agreement drawn up by the participants;
certificates of ownership of apartments from both parties (extract from the Unified State Register of Real Estate);
certificates from the building management about the number of registered residents, BTI about the cost of housing and Rosreestr about the number of apartment owners;
consent of other owners or spouse (certified by a notary);
act of acceptance and transfer;
permission from guardianship (if one of the owners is a minor);
check for payment of duty (2000 rubles on each side).

All of the above papers are provided in two copies, one from each participant.

Preparation of new documents takes from 5 to 10 days, excluding weekends. After registration, both owners receive canceled certificates of ownership of the old property and an extract of ownership of the new homes.

The exchange agreement does not require mandatory registration with a notary. Moreover, if the essence of barter is the exchange not of the entire apartment, but of its part (share), such an agreement must be certified by a notary.

In what case can a contract be declared invalid?

In practice, there are situations where the transaction is void from the very beginning. In other words, the agreement concluded between the parties has no legal force and does not bear legal consequences. In this case, the contract is invalid, and a court decision is not required to recognize it as such.

There are also cases when the transaction is voidable. In this case, a court decision is necessary to declare it invalid. Until this moment, the parties are obliged to comply with the terms of the agreement.

Reasons for invalidating a contract:

one of the parties to the transaction is an incapacitated person;
the transaction was made by a person who is unable to direct his actions and evaluate them (due to age, illness, etc.);
the contract was made under threat, fraud or misrepresentation;
the terms of the transaction contradict the laws of the Russian Federation;
the transaction was completed without the consent of third parties or permission of authorized bodies;
the transaction is imaginary or feigned*.

To invalidate the contract, the injured party to the transaction or any interested party, including a representative of government authorities or an organization, can apply to the court. Subsequently, the guilty person will be obliged to reimburse the costs incurred to the victims, and, possibly, pay compensation for the damage caused.

Drawing up and signing an agreement

An important part of the real estate exchange transaction is the preparation of documentation and execution of the text of the agreement on the transfer of property. Proper drafting of acts and agreements will help reduce the risk of problems after and during the re-registration of property.

Mandatory terms of the agreement

The text of the contract must include the following points::

Name of the agreement;
Place of conclusion of the agreement and date of production of the text of the agreement;
Name of the parties and their legal status as parties to the transaction, including the basis of their right to own residential premises (registration numbers of title documents);
The subject of the transaction, indicating who is transferring and who is accepting the corresponding residential premises. This also includes a listing of the main technical characteristics and data of the premises, including indication of the location addresses;
Rights and obligations of the parties to fulfill their obligations;
Deadlines for fulfilling the conditions for the transfer of property to new owners for subsequent re-registration of rights to real estate;
Responsibility of the parties for failure to fulfill the terms of the agreement;
Dispute resolution and the procedure for judicial consideration of conflict situations;
Final provisions and contact details of counterparties (last name, first name and patronymic, place of registration and actual location, TIN and other information - if necessary).

This list indicates general concepts within which a more detailed situation may be revealed, specifying the object and the owners.

Registration of the agreement

All real estate transactions are registered and included in the register at the Federal Service for State Registration of Cadastre and Cartography . Accordingly, all applications for registration of new property are submitted and considered at the territorial department of Rosreestr.

Currently, due to the expansion of the functions of multifunctional centers and Internet technologies, additional ways to submit an application have appeared:

Through the multifunctional center of the municipality at the place of residence and location of the property;
Through the Internet portal for the provision of public services.

Paying tax

Based on the legislation, the exchange of an apartment is considered as a paid transfer (sale), and accordingly the owner must receive a benefit.
Such benefits, in accordance with Art. 217 of the Tax Code of the Russian Federation is subject to taxation (NDFL). The tax amount is determined based on the time of ownership of the apartment. As with sales, the tax on exchange is 13% on profits exceeding one million rubles. Such tax is paid until July 15 of the year following the transaction. The declaration, which states the receipt of income, is sent to the Federal Tax Service of the Russian Federation before April 30.

Officially, there is only one option for exemption from personal income tax on sale or exchange - if the period of ownership of an apartment exceeds three years. Even if the agreement is drawn up between close relatives, personal income tax must be paid. However, in the case of an exchange, there is a rule according to which, if the property being exchanged is of equal value and neither party received proceeds from the transaction, no tax is paid

A person who has paid a contribution to the state treasury has the right to receive a tax deduction from these funds.

Notarization of the transaction

As already mentioned, there is no mandatory registration of a document with a notary, as a result of which participants in the process have the right to draw up a standard agreement and submit it to Rosreestr at the time of registration of property rights.

In this organization, when drawing up new real estate certificates, they will carry out a standard procedure for identifying the authenticity of documents, in the same way as a notary does.

Important: based on everything, we can conclude that going to a notary’s office is the wish of the parties.

But in this case there is an undeniable advantage, since the notary stores all the documents and in case of loss of a document certified by a notary, there is a possibility of its restoration.

Also, an advantage of notarization is the legal purity of the document and its accuracy of preparation, which will satisfy the registering authorities.

The question remains of the price, which includes legal services. It depends on the appraised value of the apartment; for more expensive housing, a percentage of 0.15 to 0.3 is charged, but not less than the established amount.