For most people, purchasing an apartment is a very responsible and serious step. However, there are cases when the buyer does not have the desire or ability to deal with the transaction personally. Then the solution is to issue a power of attorney to purchase an apartment in the name of another person. It is very important to choose the right trustee, since he will act on behalf of the buyer in such difficult situations as choosing a home and negotiating its price. The success and outcome of a transaction directly depend on a person’s hard work, ingenuity and honesty.
Features from the buyer's side
A power of attorney issued by the buyer does not affect the seller in any way. If there is one, then all actions related to the acquisition of real estate will be carried out by an authorized person, but on behalf of the buyer. This does not affect the execution of the agreement for the purchase of an apartment by proxy on the part of the buyer, the final cost and other aspects.
Buying without communicating with the owner is a risk for the buyer
Purchasing housing from a trusted person, when there is no way to contact the owner of the property, and he does not intend to be present at the conclusion of the transaction, is a very risky operation. The fact is that obtaining a power of attorney and using it for real estate transactions is one of the components of many fraudulent schemes, and more than one hundred people have already suffered from the actions of criminals.
If, when asked about the owner, his location and the possibility of a meeting (or video conference on record), the representative begins to become noticeably nervous or, on the contrary, in a confident tone says something unclear and, in principle, unverifiable, it is worth looking for another housing option or, at least, involving a lawyer , so he could “dig deeper.”
Many offer Skype communication, but you must be sure that you are dealing with a specific person. It will be better if he shows the original passport and clarifies the nuances associated with the history of the apartment. It is better to conduct the conversation in the presence of a lawyer.
Stories that there is already a queue of other buyers lined up for this apartment, which is being sold at a reasonable price, can be safely ignored. Such housing is sold with great difficulty, and this is the reason for the significant discount. Numerous calls and active demonstration of this very queue may be nothing more than a staging.
Varieties
There are several types of power of attorney for the purchase of an apartment. The most widely used in legal practice is a general power of attorney, but in addition to it there are:
- one-time (allows an authorized person to perform one action);
- special (issued for the implementation of activities that are interconnected for a specific period of time).
To avoid violations on the part of the principal, it is advisable to indicate the cost of the object and its address. The power of attorney is issued along with the sub-power of attorney. Such a document allows the realtor to issue one-time powers of attorney. Its contents include registration and provision of the required documentation package.
Rights are transferred - responsibilities remain
The vulnerability of the principal’s position also lies in the fact that, in fact, he voluntarily transfers to his representative the documented rights to dispose of real estate or individual transactions with the apartment, but he retains all responsibilities to himself.
Yes, and with the transfer of money, sometimes various incidents happen. Even the most respectable representative can become a victim of scammers or robbers, which means that all the nuances of receiving and transferring funds must be thought through, or better yet, additionally prescribed. If a trusted person stubbornly delays transferring money, you should not appeal to his integrity for a long time, you should immediately go to court.
Let us repeat, to minimize risks, it is better not to be lazy or stingy, but to issue several powers of attorney to carry out specific steps.
Elderly people and those who are lonely, experiencing depression, or simply do not have sufficient experience or education should be as attentive as possible to their surroundings. If someone provides all possible assistance, does their best to inspire trust, and then offers to sign documents with a notary for the right to dispose of an apartment, you should take a long pause and think about everything, tell about it to someone uninterested and seek advice from lawyers.
General power of attorney for the purchase of an apartment
One of the types of power of attorney that is needed to purchase residential space is a general power of attorney. Despite the absence of this term in legislative acts, it is used even by notaries who use it as the title of the form.
This type of power of attorney is a document that gives a person the right to carry out any actions intended to dispose of certain property. It is often obtained when selling an apartment and for purchasing it.
Notary is not a panacea: not all information is verified
You need to understand that when certifying a trust document, a notary does not have the technical ability to carefully check the authenticity of the documents presented to him. He will, of course, notice obvious signs of forgery and all sorts of inconsistencies, but if the package does not arouse suspicion, the power of attorney will most likely be issued.
There are many cases where a power of attorney was issued using a stolen passport presented by a person who simply looks like the owner of the property. It happens that powers of attorney are issued by incompetent people, or by those whom the court has not recognized as such, but in fact these citizens are mentally ill. This is an “iron” reason for litigation and possible recognition of the transaction as illegal.
It is also necessary to understand that the owner can revoke the “general” at any time, and without even notifying his authorized representative. Thus, the transaction turns out to be concluded under a power of attorney, which no longer has legal force. It is rare, but it also happens that the document is terminated automatically due to the death of the principal. Without even knowing about it, the representative concludes a deal on his behalf, but then it is quite easily declared invalid, and the heirs take over the real estate.
With a mortgage
When purchasing real estate with a mortgage, it is important to indicate in the power of attorney that the authorized person has the right to dispose of the mortgage funds for a specific purpose - to pay state fees, transfer the amount under an agreement, register the property, etc.
A sample power of attorney for the purchase of an apartment is presented below.
Transaction procedure
In order to get such a desired apartment in your possession, you need to go through the following stages:
- Find an apartment.
- Inspect the object and select.
- Talk to the seller.
- Transfer the advance and enter into an advance agreement.
- Drawing up a purchase agreement and signing it.
- Registration of the agreement.
- Receiving keys and drawing up a transfer act.
All this can be done not independently, but through a trusted person; it is important not to leave these matters to chance, but to control them.
In shared construction
When purchasing a home in a new building where construction is still ongoing, you need to take a number of nuances into account. Since, from the point of view of legal norms, this object does not exist, it is not the living space itself that is acquired, but only the property rights to purchase it by concluding an agreement with a construction company. When drawing up a power of attorney under the DDU, it is required to mention the authority to sign the transfer deed, the right to receive real estate for operation, as well as to conclude an agreement. It is advisable to indicate in the power of attorney that the representative has the right to resolve controversial situations that arise with the construction company.
Security rules: checking the power of attorney and history
If you really don’t want to give up an apartment sold by proxy, since the price can really be very attractive, you need to take at least the following steps:
- consider a power of attorney, which must be drawn up on official letterhead, must have a number, the signature of a state representative and a period of validity;
- find out from the notary whether the power of attorney is valid and make sure that you understand everything correctly in this document;
- request an extract from the Unified State Register and carefully study the entire history of the proposed apartment in order to understand how many times it has been sold recently;
- do not try to save on someone else’s taxes and be sure to indicate in the contract the actual amount paid upon purchase, and also keep a document confirming its transfer.
If this is not the first change of ownership in the last three to five years, this should be alarming. The sales chain, which makes it possible to confuse the story as much as possible, also applies to the schemes used by scammers.
Many people believe that engaging realtors will minimize risks. This is true if you contact a reputable company with an impeccable reputation, whose representatives are ready to tell potential buyers about the risks of such operations and take an active part in checking documents. But it happens that unlucky realtors deliberately get involved in fraudulent schemes.
If the agent is nervous, is clearly in a hurry to conclude the contract, tries to influence psychologically and in every possible way prevents direct contact with the seller, it is better not to deal with him anymore and look for another property.
Powers of attorney that are equal in strength to notarized ones
A general power of attorney can only be issued by a notary and only on a special form. Other types of powers of attorney are allowed to be drawn up in handwritten or printed form; the form is free, but the principal must sign it in front of a notary, as well as certify it with a seal and signature.
We will consider the buyer's risks when purchasing an apartment by proxy below.
There are exceptions when the execution of a general power of attorney becomes possible outside the notary’s office, but the document has the same power as one certified and executed by a notary. It is no coincidence that Russian legislation has endowed certain categories of authorized citizens with notarial powers. It happens that people, due to various circumstances, cannot directly contact a notary, so the law has exceptions for them. These include:
- commander of a military unit for its employees, military personnel and their families, residents of closed garrisons;
- the head of the medical institution, if the serviceman is undergoing treatment;
- captain of a ship during a voyage for sailors;
- head of a correctional facility for prisoners;
- consul or ambassador for citizens staying abroad;
- in the absence of a municipal settlement, the head of the administration.
Buying an apartment by proxy from the seller is a fairly common situation.
Drawing up a contract and paying for an apartment
Transaction form
A power of attorney is not an obstacle to executing a transaction in simple written form. The representative and the buyer can print out the purchase and sale agreement from the Rosreestr website, sign it, and then register ownership.
If you want everything to be official, enter into an agreement through a notary. This does not eliminate risks, but if the deal fails, the notary will act as a witness in court. He will confirm that he has established the identities of the representative and the principal, and read out the rights and obligations of the parties.
To certify the purchase and sale agreement with a notary, you will have to pay from 7,000 to 15,000 rubles (depending on the region) plus 0.2% of the transaction amount exceeding 1,000,000 rubles. There is another expense item - obtaining the consent of the buyer’s spouse to make a purchase. The issue price is up to 2000 ₽. In simple written form, consent is not required.
In Volgograd, the starting rate for a certificate is 10,000 ₽. With a percentage of the transaction amount and registration of my consent, the figure turned out to be large: the notary advised us to draw up the agreement in simple written form, which we did.
Rosreestr’s response to my request (including) about the need for notarized confirmation of a transaction made in simple written form.
Calculations
It is better to transfer money for the apartment to the owner. If not possible, pay the representative. But before you transfer money, check his right to make mutual payments - this is stated in the section of powers of the power of attorney.
Secure the fact of transfer of funds with a receipt: handwritten or certified by a notary. Here it would be more accurate to say that the notary itself is unlikely to be certified by a notary, but the signatures of the parties are ok. The cost of the service varies in regions, on average - 600 ₽. Lawyers believe that the option with a notary is safer than a simple receipt: the buyer acquires an independent witness who confirms that he paid money for the apartment.
An even better insurance option is a notarized receipt and a statement from the owner that he received the money from the representative and has no claims against the buyer. This way the seller acknowledges that all obligations have been fulfilled and he understands the irreversibility of the transaction. To ensure that the representative accurately delivers the documents, include a corresponding clause with a time limit in the contract.
Tax deduction
The buyer has the right to receive a tax deduction from the purchase of real estate in the amount of 13% of its value, but not more than 260 thousand rubles. The taxpayer's right to a tax deduction is confirmed, among other things, by payment documents. For cash payments - a receipt for the transfer of money. If you gave money to a representative, a power of attorney in his name will confirm the legality of the payment. The tax office explained that you need to provide the original. But when submitting documents for registration of rights to the MFC or Rosreestr, it is not necessary and even undesirable to give the original. So our power of attorney was lost, which is why the process of completing the transaction lasted almost two months.
When is a document invalid?
Each power of attorney loses legal force if:
- no registration date;
- the validity period has expired, in the absence of a direct indication of the period - one year from the date of registration;
- the principal has revoked his power of attorney, it can be revoked at any time, but only through the notary who executed it;
- in the event of the death of the principal.
Risks of buying an apartment under a general power of attorney
It must be said that during the execution of such a document there are some risks for the principal, despite the fact that he can revoke it at any time, since the fiduciary is sometimes capable of acting contrary to the interests of his principal. In this regard, it is important to approach the choice very carefully. It is recommended to contact your closest relatives, and a spouse or perhaps children who have reached adulthood are also good candidates. It is necessary to be 100% sure of who the power of attorney is issued to. It is important to know that the reliability of the person you choose directly affects the profitability and success of the transaction. If there is a need to issue a general power of attorney for representatives of a real estate company, you must indicate the full legal name of the company and the specific person who will handle all the documents. If problems suddenly arise, it will be clear who needs to make claims. After all, there are still risks when buying an apartment by proxy.
There are special fraudulent schemes on the part of dishonest realtors, so you need to find out in advance about the duration of the company’s existence in the real estate market, as well as read reviews on the Internet and only then contact the organization’s services.
Registration procedure
Such an important document needs to be drawn up by a notary. In order for another person to be able to not only select but also prepare documents for real estate, it is necessary to provide the following documents:
- A document about ownership from the current owner of the selected living space.
- Your passport and that of your authorized representative.
- Explanation of the purpose of drawing up a power of attorney. That is, for which actions permission is issued.
- Document confirming payment of state duty.
Since the authorized person can have many actions, several copies should be drawn up at once, which must also be certified. This will prevent further slowdown of the process.
The document must contain the following mandatory details:
- Date and place of compilation.
- Passport details of the buyer and the trustee.
- Purpose of creating a power of attorney.
- Deadline for issuing the document. Now there is no deadline, as there was before at 3 years. If the validity period is not specified, it defaults to 1 year.
- The possibility of reassignment, that is, the preparation by a trusted person of a power of attorney for a third party.
Estimated cost
When drawing up a power of attorney, the approximate cost ranges from one to two thousand rubles. This directly depends on the city where they are going to register it, and the degree of relationship between the trustee and the principal. A power of attorney issued to a wife or husband has a lower cost. In addition, the existence of the right of subrogation is taken into account; if it exists, the cost will be increased. Special and one-time powers of attorney, which are drawn up independently and require only certification of the signature, cost about a thousand rubles.
