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Published: 08/30/2016
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The words barter and exchange are synonymous, but from a legal point of view they are not equivalent.
In civil law, exchange and barter are two different concepts that denote different types of transactions.
- What is barter and exchange?
- How does barter differ from exchange?
- Types of exchange agreements With additional payment
- Apartment shares
- With a minor
- For a plot of land
Features of the exchange agreement
Many novice specialists working in the real estate market have little understanding of the difference between the procedure for exchanging apartments and drawing up an exchange agreement .
In the future, gaining experience and understanding the difference, they simply follow the path of least resistance and act in accordance with the established stereotype, and not with market conditions, which offer a variety of options for property transactions.
The exchange of apartments is carried out exclusively within municipal property , is intended for non-privatized apartments and has a limited range of applications. Read more about the exchange of privatized and non-privatized apartments here.
In contrast, the agreement for the exchange of residential premises has sufficient opportunities for the direct transfer of property from one owner to another.
The peculiarity of this agreement is that the parties entering into it simultaneously alienate and acquire ownership rights. Therefore, differentiating the parties is somewhat more difficult, which requires professional intervention from an experienced lawyer.
The differences between an exchange agreement and other types of agreement are described in detail in this material.
To independently draw up a contract of this type, you need to take into account all the nuances that may arise as complications of the drafting procedure.
The main point that needs to be taken into account in such a case is that all provisions of the contract must be carefully thought out and verified .
Once the contract is signed and registered, it must be executed accurately. If one of the parties tries to refuse to fulfill the terms of the contract , the other can force it to perform in court.
What laws govern it?
Any transaction with property must be accompanied by reference to the relevant legislative act. Almost all transactions that can be carried out between citizens are reflected in the Civil Code.
It is this normative act that regulates the exchange procedure. Article 567 and the subsequent series of articles in this chapter are devoted to me. Exchange is a fairly popular transaction , but you should not think that you can carry out this procedure yourself without reading the legislation.
Due to the fact that such an agreement constantly increases the number of transactions carried out, changes may be made to the exchange procedure by legislation quite often.
This means that before you begin to formalize an agreement with your opponent, you should thoroughly study the legislative framework.
In addition, the district court's decision on the exchange will be of great help to you as a source of law.
Some cases cause you to go to court, which means you are also at risk .
Required documents
What documents are needed to exchange an apartment for an apartment? The required documents are as follows:
- Title document. It can be an order, an exchange agreement, a purchase and sale agreement, and the like.
- A title certifying document is a certificate of ownership.
- Providing technical specifications. They rely on cadastral plans and passports, certificates from the BTI.
- Civil passports of the parties.
- A statement that the party is not married or a notarized permission from the spouse.
- Certificates of absence of encumbrances.
- If the parties carry out a related exchange - documents confirming the relationship.
- For representatives – a power of attorney certified by a notary.
general information
Looking through advertisement sites, you can often come across requests to exchange a car for an apartment or a small house. Is it really possible to carry out such an exchange, and how does it work out in practice?
The need to exchange your apartment for a good car sooner or later may arise for any person. There may be several different reasons for making such a decision.
If for some reason the owner no longer needs to use his apartment, and he doesn’t want to rent it out to unknown people, as well as search for potential buyers, why not take advantage of a convenient option and exchange the living space for a good, expensive car, which is difficult to buy for yourself just like that?
How to compose?
An agreement is a document in accordance with which, among other things, large property transactions are carried out. Therefore, its preparation is an extremely responsible procedure.
It must be drawn up in legally correct language that does not allow interpretation regarding the fact of the exchange. Drawing up a preliminary text of the contract will become relevant .
Sample preliminary agreement for the exchange of residential premises.
In this case, the parties and possible representatives can further work out all the inaccuracies and points that were not foreseen at first glance.
The finished document must be drawn up in accordance with the standards , without errors or blots, and contain the following data:
- Definition of the parties to the transaction as “Party 1” and “Party 2”.
- Explanation of the nature of the transaction: barter.
- A detailed description of the object of exchange, indicating the address and technical characteristics of the apartment, presented by the first party.
- A detailed description of the apartment involved in the property transaction from the second party.
- Indication of the cost of objects (apartments).
- Statement of the fact of exchange.
- Conditions accompanying the transaction. Here it is necessary to provide for all possible nuances, up to the timing of the discharge of family members of the owners, the option of transferring the additional payment for the difference in the cost of housing (if any) and other important points.
- Responsibilities of the parties, that is, obligations to transfer apartments.
- Conditions for possible cancellation of the transaction. They must be written out carefully in case of termination of the contract, in order to avoid costly and lengthy litigation.
- Addresses, details and signatures of the parties.
It is imperative to indicate that the apartments are not subject to collateral value and do not carry other encumbrances.
After drawing up the agreement for exchanging an apartment for an apartment, it must be registered at the local branch of the FS Cadastre and Cartography. When registering, you must first pay the state fee provided for this type of service.
Sample agreement for the exchange of an apartment.
Sample agreement for the exchange of an apartment with an additional payment.
Making additional payments
Since the contract specifies the cost of the apartments, an additional payment is established in the form of the difference between the specified cost . Its amount and the fact of availability are included in the clause of the terms of the transaction.
Here you will need to provide information:
- in what form (currency) it will be transferred;
- in accordance with what deadlines;
- how.
Having a lawyer when making an exchange with an additional payment is especially appropriate , since he will not only help draw up an agreement for the exchange of an apartment with an additional payment, but can also provide representative assistance when transferring money.
In some cases, it is convenient to use a safe deposit box, where one party deposits the agreed amount, and the other withdraws it after signing the agreement.
Confirmation of receipt of money is very important , because in the event of termination of the contract, the money will have to be returned, and for this, the fact of its transfer must be documented.
In no case is it recommended to underestimate the amount of the transferred surcharge, for example, under the pretext of reducing tax payments or to hide its fact.
Firstly, the Federal Migration Service checks the adequacy of the transactions and can punish for attempted deception. Secondly, this will prevent you from falling for scammers.
Let's talk about the nuances
Some contracts contain additional elements, which are dictated by the specifics of the property transaction. For example, one apartment can exchange:
- for two;
- to a land plot (LZ);
- for a private house.
Agreement for exchanging an apartment for a house, sample.
Agreement for the exchange of an apartment for a house with a plot, sample.
When exchanging one object for two apartments , the contract is drawn up in the same way as a standard one, but it is explained that one of the parties to the contract provides two objects.
Next, you must indicate specific information about the apartments and their technical characteristics.
In the terms of the exchange, the presence of an additional payment is determined; in its absence, the cost of one apartment should not differ significantly from the two presented for exchange on the other side.
If an apartment is exchanged for a land plot , this point is already indicated in the title of the agreement.
The following indicates the technical characteristics of the apartment as an object presented to the transaction by one party and the technical characteristics of the land plot reflected in the submitted documents:
- land surveying;
- cadastral passport;
- title document;
- right certifying document.
The remaining clauses are prescribed by analogy with a regular contract. But it is necessary to keep in mind that the land plot must be registered as property .
If an apartment is exchanged for a private house , the main attention must be paid to the ownership of the land. If the land is in permanent use, it cannot be re-registered as a result of an exchange.
In this case, the contract specifies the private house presented by the party for exchange, located on the site located (indicate the right of use). Thus, the memory is excluded from the terms of the exchange.
If the house is located on a plot of land owned , the contract is drawn up for two real estate objects (a house and a land plot), presented by one of the parties in exchange for an apartment.
The technical characteristics of the house must coincide with the technical characteristics of the apartment, and information about the landfill must be based on land surveying.
If you are interested in drawing up a real estate share exchange agreement, read this article.
Is it necessary to have the agreement certified by a notary and why?
As a general rule, the exchange agreement does not need to be certified by a notary (Article 163 of the Civil Code of the Russian Federation). However, such a document is subject to mandatory notarization in the following situations:
- if the owner of the exchanged property is a person with limited legal capacity or a minor;
- when exchanging property that is in common shared ownership.
As a result, in the presence of the above situations, the parties to the transaction must visit a notary.
Exchange between relatives
In ordinary cases, exchange agreements between relatives are no different from each other if both apartments are privatized.
However, if the exchange of unequal housing is carried out without additional payment, the Federal Tax Service most likely will not put obstacles to such a transaction.
There is no tax exemption or preferential taxation . For this purpose, you can use a deed of gift.
In the event that one of the apartments is not privatized, a related exchange may be a worthy solution, subject to permission for the exchange from the administration.
When making a related exchange, you must be very careful , since the first impression of the transaction will dissipate over time, and relatives can become no less aggressive opponents than other persons.
The slightest violation committed when drawing up a contract can become a source of big trouble.
Apartments that can be exchanged for a car
If both parties want to exchange an apartment for a vehicle, they must realize that real estate is valued much more than cars. It is for this reason that even if the apartment being exchanged is not in the best condition or has a small square footage, the owner must still demand an additional payment.
The exchange of a separate room for a car should be carried out under the same conditions. The owner of the property has the right to receive, albeit a large, additional payment for exchanging his property for a passenger vehicle.
The amount of such surcharge directly depends on the quality and model of the car being exchanged. A premium car costs much more than an ordinary foreign car that has been in use by the owner for a long time. Therefore, the apartment owner has the right to receive a larger amount of compensation for receiving an old car that is not a premium model.
