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Permission to dispose of the property of a minor
Transactions with real estate owned by minors
Real estate transactions involving minors are considered almost the most complex. Children, like adults, can be owners of real estate. And therefore, dispose of it: sell, buy, exchange... But minors (from 14 to 18 years old) in accordance with the Civil Code of the Russian Federation have incomplete legal capacity. That is, in order to conclude a transaction, the consent of the legal representatives - parents, adoptive parents or trustees of the minor - will be required. Conducting such real estate transactions has a number of significant features, and if they are not taken into account in a timely manner, the transaction will be disrupted or worse, declared invalid. How to avoid this? Minors are divided into minors who are not yet 14 years old, and minors aged 14 to 18 years. Their legal representatives always act on behalf of minors in a transaction. Of course, a 10-year-old child, for example, has the right to go to the store and buy himself a chocolate bar or a can of cola. Such transactions are not prohibited by law. Children under 14 years of age can carry out other small household transactions and manage pocket money provided to them by their legal representatives. But it’s hard to even imagine such a child signing a sales contract or submitting documents for state registration. These types of transactions are made for them by their parents or other legal representatives. As for children aged 14 to 18 years, this group of minors is more free to enter into transactions. They perform them on their own, sign documents, etc. But they do this with the caveat that all actions take place with the written consent of mom or dad or other legal representatives. Moreover, from the age of 14, a child can take part in transactions only if he has a passport (and birth certificate) in hand.
Without written consent, citizens aged 14 to 18 years have the right to:
1) manage your earnings, scholarships and other income; 2) exercise the rights of the author of a work of science, literature or art, invention or other result of his intellectual activity protected by law; 3) make deposits in credit institutions and manage them; 4) make small household transactions; 5) from the age of 16 have the right to be members of cooperatives.
In a transaction involving minors, the child’s legal representative must be present. The child's legal representatives include:
– parents; – adoptive parents; – guardians. If the child does not have parents or adoptive parents, then guardianship is established over children under 14 years of age; – trustees. If a child does not have parents or adoptive parents, then guardianship is established over children aged 14 to 18 years.
If an apartment or a share in an apartment belongs to a minor, then you should know the following:
– for the sale of property owned by a citizen aged 14 to 18 years, written approval of the transaction from a legal representative is required. In turn, the legal representative of the child can give his consent to the sale only with the prior written permission of the guardianship and trusteeship authority.
In order to sell an apartment that is the property of a child under 14 years of age, it is also necessary to obtain the consent of the guardianship authority. To do this, you will need a fairly voluminous package of documents, including: passports of all participants in the transaction, originals of title documents for the apartment being sold, a certificate from the BTI, an extract from the house register, and if the child is the owner, but is not registered in this apartment, it is necessary to present an extract from house register from the place of “registration”. The authorized inspector prepares a package of documents and submits it to the commission operating under the municipality. Then an order signed by the head of the municipality is issued, which must clearly indicate under what conditions the transaction can be completed. When considering the issue of permission to conduct transactions with the participation of minors, the guardianship and trusteeship authorities try to take into account all the factors due to which the transaction may subsequently be terminated and the housing rights of the minor may be violated. The guiding principle when making a positive decision: the child’s share of property should not decrease, and living conditions should not worsen. When making decisions, guardianship and trusteeship officials should be guided only by the interests of the child. That is, in each specific case, the following is strictly taken into account: - whether the child’s living conditions will deteriorate, whether his property interests will be affected, etc. As a rule, the guardianship authorities give the go-ahead for the sale if the minor owner receives another residential premises or an equivalent one in return share. For example, if a three-room apartment is being sold in which a child has a share, then guardianship officers may give permission for the sale if in return he receives a similar share in another residential premises. But other factors will also be taken into account, for example: where the housing being sold and purchased is located. So, if the apartment for sale is located in the center of Moscow, then, naturally, the property and other interests of the child will suffer when he buys similar housing on the outskirts of the capital or in the near Moscow region. If parents believe that the guardianship authority unreasonably or unlawfully refused to sell the property of a minor, then the law provides for the right to appeal such a refusal in court.
On a note
“Article 37 of the Civil Code of the Russian Federation provides for the need to obtain the consent of the guardianship and trusteeship authorities not only for the sale of the property of a minor, but also for his renunciation of his property rights.” For example, permission from the trustees will be needed if a minor lived in the apartment at the time of its privatization, but was not included among the owners. Guardianship authorities check whether the child’s property rights have been violated. By law, a minor must necessarily participate in the privatization of housing at the place of permanent registration. To make it easier to sell real estate in the future, some parents use tricks: on the eve of registering ownership of the apartment, they “register” their child with their grandparents. In such cases, the guardianship authorities give permission for the transaction only when the child already has other property or can participate in privatization where he lives. The consent of guardianship and trusteeship is also necessary when exchanging municipal housing in which a teenager lives, dividing shares in an apartment privatized into common joint property, etc.
State registration
The purchase and sale agreement for residential premises is signed on behalf of a child under 14 years of age by a legal representative, who must also sign an application for state registration and submit other necessary documents for registration. If the child is between 14 and 18 years old, then he signs the contract and submits documents for registration independently.
Documents submitted for state registration:
- statement; – identification documents (passport for persons over 14 years of age, birth certificate for persons from 14 to 18 years of age, documents confirming the powers of guardians and trustees, etc.); – receipt for payment of state duty; - contract of sale; – cadastral passport; – title documents for the apartment; – permission from the guardianship and trusteeship authority to dispose by legal representatives of the property of persons under fourteen years of age; – written consent of parents, adoptive parents or guardian to make a transaction for minors aged fourteen to eighteen years; – permission from the guardianship and trusteeship authority for legal representatives to give consent to minors aged fourteen to eighteen years to dispose of property; – a document confirming the right of a minor aged fourteen to eighteen years to dispose of property without the consent of legal representatives (a decision of the guardianship and trusteeship authority or a court recognizing the minor as fully capable (emancipated), a marriage certificate for a minor); – an agreement on the transfer of a child to a foster family, concluded by the guardianship and trusteeship authority and the foster parents. And such a situation... The consent of the guardianship authority is also necessary for such transactions with the property of a minor: – donation of real estate owned by a minor; – pledge of real estate, the owner of which is a minor; – leasing or leasing, for free use of real estate of a minor; – exchange of property of a minor; – refusal of pre-emptive purchase of a share; – division of the minor’s property; – refusal of inheritance; – allocation of a share from the property of a minor; – other transactions entailing a decrease in the minor’s property.
It is necessary to distinguish a transaction for the sale of an apartment where the owner is a minor from the sale of an apartment where the child only has the right to use, that is, is not the owner. If the child is not the owner of the residential premises, then there is no need to apply to the guardianship authority for permission to sell. For example, an apartment belongs to a husband and wife, a child is registered in the apartment. In this situation, when selling a home, there is no need to visit guardianship and trusteeship officers. But if a minor who is under guardianship or trusteeship, or a child left without parental care, lives in the apartment being sold, and the sale of the residential premises will affect the interests of the child, then alienation is possible with the consent of the guardianship authority. In this situation, the interests of the child may suffer from the fact that he simply has nowhere to live. After all, when selling an apartment, everyone registered will have to be deregistered at their place of residence.
Things to remember:
– a guardian, trustee, their spouses and close relatives cannot enter into transactions with their ward. For example, parents cannot sell an apartment to their minor child, just as they cannot buy an apartment from a child. But parents or other legal representatives have the right to donate an apartment to a minor or transfer real estate and other property for free use; – transactions made by minors under fourteen years of age are void, but in the interests of a minor, a transaction made by him may, at the request of his parents, adoptive parents or guardian, be recognized by the court as valid if it was made for the benefit of the minor; – a transaction made by a minor aged fourteen to eighteen years without the consent of his parents, adoptive parents or guardian, in cases where such consent is required, may be declared invalid by the court at the claim of the parents, adoptive parents or guardian; – the Family Code of the Russian Federation enshrines an important rule, according to which a child does not have the right of ownership of the parents’ property, and parents do not have the right of ownership of the child’s property. That is, if, say, the parents divorce, the child remains with the mother. In court, jointly acquired property is divided, including an apartment - it will be divided only between the father and mother, since only these two persons are the owners of the residential premises. As a general rule, the shares of each spouse are recognized as equal, but the court has the right to deviate from the beginning of the equality of the spouses’ shares in their common property based on the interests of minor children; – if parents rent out a child’s living space, then this requires the consent of the guardianship and trusteeship authority. We should also not forget that on income received from renting out property, it will be necessary to pay personal income tax in the amount of 13%, and the responsibility for filing a tax return lies entirely on the shoulders of the child’s legal representative.
To make a decision on the disposal of a minor’s real estate (purchase and sale, exchange, donation, rental, pledge, etc.), parents (legal representatives) of minors under the age of 14, minors who have reached the age of 14, acting with the written consent of parents (legal representatives), guardians (trustees) with an application and provided originals and copies of documents:
— certificate of state registration of rights to real estate; — technical (cadastral) passport, BTI certificate on the cost of residential premises; — certificate of registration and family composition; — a single housing document; -copies of the above documents for the purchased housing; - when leaving for another city - permission to register from the department of internal affairs of this city, a preliminary contract of purchase and sale, exchange and assessment of residential premises at market value; - a statement from citizens who are the owners of the residential premises purchased by the applicants confirming the readiness to sell the apartment to the applicants. — call, visa (when traveling to another state); — child’s birth certificate, passport of a minor aged 14 to 18 years; — passports of parents (legal representatives), guardians (trustees); — a certificate from the tax office confirming the presence (absence) of a debt to pay real estate tax; — extract from the Unified State Register.
If necessary, the specialist has the right to request other documents necessary to resolve the issue on the merits, and to conduct an examination of the alienated and acquired housing.
WITHDRAWAL OF MONEY
FROM THE CURRENT ACCOUNT OF A MINOR To
the Head of Administration of the Sviblovo Municipal District
I.S. Markina
from gr.________________________________ ________________________________ date of birth__________________________ place of birth_________________________________ ________________________________ passport_______________________________ issued________________________________ ________________________________ date of issue__________________________ Registration address at the place of residence______ _______________________________ Address of actual residence___________ ______________________________ Telephone home.__________________________ Telephone mobile__________________________
STATEMENT
I request permission to withdraw funds in the amount of _________________________ amount in figures
___________________________________________________________ rubles
amount in words
with interest due and compensation from current account No. _________________________________, opened in OSB No. _____________ in the name of my minor son (daughter) ________________________ Full
name, date of birth in full
________________________________________________________________, registered at the address: _____________________________________
the registration address is indicated
in connection with _______________________________________________________________
the reason for the withdrawal of funds is indicated
I undertake, within the one month period established by law, to provide to the guardianship and trusteeship department of the Sviblovo municipality in the city of Moscow copies of documents confirming how the funds were spent.
Date Signature
LIST OF DOCUMENTS PROVIDED
1. A copy of the minor child’s birth certificate. 2. An extract from the house register and a copy of the financial and personal account at the place of registration of the minor (originals). 3. A copy of the savings book. 4. A copy of the certificate of the right to inheritance according to the law (will). 5. Statements from parents and children over 14 years of age (written in the presence of a specialist from the guardianship and trusteeship department).
All copies of documents must be presented with the original or certified by a notary.
Official website of the Supreme Court of the Russian Federation
A very useful explanation was made by the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation when it examined a controversial situation related to the purchase of an apartment from the owners, among whom were minor children.
It is known that housing on the so-called secondary market is often cheaper than new buildings. But the risks of losing a newly purchased apartment and money with such a purchase are greater. Especially if the seller is a family with small children.
It is impossible to invalidate a transaction based only on Art. 167 Civil Code
Few people know that the consent of the guardianship authorities required for such transactions does not mean anything. More precisely, it does not protect against possible problems.
The fact is that guardianship only authorizes the transaction on the condition that the small owners will be purchased housing of equal value to the one being sold. And if this condition is not met, then the purchase and sale transaction that has already been carried out can easily be considered illegal.
Our story began in the Chelyabinsk region. There, a certain citizen decided to sell the apartment in which her two minor children were registered. Each of them owned 1/3 of the share.
My mother received written consent from the guardianship authorities for the sale. Giving consent, the guardianship put forward a condition - the apartment can be sold if another housing is purchased at the same time, in which the children will receive 1/3 of the share. The purchase had to be reported to government agencies within a month after the sale of the home.
And then events developed as follows. The deal was completed. The new owner of the apartment paid for the purchase in full and celebrated a housewarming party. But she was unable to live peacefully in her new apartment.
The reason turned out to be that the previous owner, contrary to the agreement, did not purchase a new apartment for the children, which was mentioned in the consent of the guardianship authority. That is, the citizen violated the condition specified in the permit. The guardianship department demanded that the transaction be declared invalid under Article 168 of the Civil Code of the Russian Federation. This article talks about a transaction that is contrary to the law.
The upset new owner tried to defend herself and went to court. She argued that the guardianship of the transaction was illegal in the first place because it did not say how to pay the minor sellers and did not specify into which account the money should be transferred in the name of the minors after the sale of their shares.
She also found the following argument: when issuing the permit, they did not find out the opinion of the children’s father, and she, as a buyer, was not informed that the seller had to simultaneously buy housing for minors.
The local city court agreed with the guardianship's arguments entirely. And he satisfied the claim of the guardianship department, invalidating the apartment purchase and sale agreement. The property was returned to the property of the previous owner and her children. Well, the plaintiff, who never became the full owner of the new apartment, was awarded compensation in the amount of the cost of housing.
In its decision, the city court referred to Article 167 of the Civil Code, which talks about the consequences of an invalid transaction. But the Chelyabinsk Regional Court overturned the decision of its city colleagues and made a new decision, denying guardianship, and at the same time the plaintiff.
According to the appeal, the fact that the previous owner did not buy housing for her children and violated agreements with guardianship does not make the apartment purchase and sale agreement illegal. According to the appeal, the transaction was completed in compliance with all procedures, in fact it was executed and there are no grounds for invalidity. At the same time, the position in the court was explained by the provisions of Article 168 of the Civil Code, to which the first instance did not refer.
The guardianship did not agree with such a refusal and went all the way to the Supreme Court of the Russian Federation. There they studied the materials of the dispute and did not agree with the conclusions of the regional court. At the same time, the Supreme Court immediately referred to two articles of the Civil Code - Article 168 “Transaction contrary to the law” and Article 173.1 “Transaction without the consent of a government agency required by law.”
The Supreme Court of the Russian Federation indicated that the court of first instance could not invalidate the transaction based only on Article 167 of the Civil Code. This article does not establish the grounds on which invalidity is recognized. But these grounds are provided for in other articles of the same code - 168 “Transaction contrary to the law” and Article 173.1 “Transaction without the consent of a government agency required by law.”
The guardianship allows the transaction with the apartment if the children are bought equal housing. Otherwise the deal will be canceled
The Supreme Court emphasized that in the first instance they did not refer to any of these articles, and the appeal not only did not correct this error, but also incorrectly interpreted the norms to which it referred. This is what the Supreme Court drew attention to - the court based its decision on an invalid version of Article 168 of the Civil Code of the Russian Federation.
The appeal should have clarified on what grounds the plaintiff is challenging the transaction, and depending on this, determine what circumstances are significant for the dispute and affect the validity of the transaction or indicate its nullity, the Judicial Collegium for Civil Cases of the Supreme Court indicated.
And the regional court did not take into account that, according to Article 173.1 of the Civil Code, special grounds are established for invalidating transactions made without the necessary consent of a third party, a body of a legal entity or a government agency or local government body. According to the plaintiff, there was no basis for concluding that the transaction was made with the consent of the guardianship, because the defendant did not obtain consent to the alienation of real estate without providing the children with other housing, and this argument was considered important by the Supreme Court of the Russian Federation. The High Court also noted that there was no evidence of compliance with the children's rights - that the funds from the sale of the apartment ended up in their bank account or were spent in their interests. Therefore, he ordered the dispute to be reconsidered.
Text: Natalia Kozlova
Rossiyskaya Gazeta - Federal Issue No. 39(8093)
Coordination of transactions with the property of minors, or Cannibalism of the guardianship authorities // Nepyatnichnoe
I have already written about the difficulties faced by anyone who has used maternal capital to purchase housing and decided to calculate the legal risks of the subsequent sale of such housing without first allocating shares. More about this here:
I will briefly outline the essence of my “case”: a family bought a one-room apartment with a mortgage, and later decided to invest capital in it. After some time, the family buys a three-room apartment for growth, also with a mortgage, to pay off which they want to sell the one-room apartment. But in order to sell it, you must first allocate shares to your spouse and children as part of the fulfillment of your maternal capital obligations. This is where it all begins...
After analyzing the situation, I decided to preliminarily allocate shares (interestingly, by law the owner is obliged to do this not only in relation to the spouse and children who appeared at the time of using the maternity capital, but also in relation to those children who were born later, so in any case In this case, notaries interpret the law; in addition, not all notaries agree to certify a transaction for the allocation of shares before the encumbrance is removed, even despite the fact that the pledge holder himself, i.e. the bank, has nothing against it). But in this post I want to talk about the difficulties that I encountered at the next stage.
This is where the guardianship authorities come to the fore. I won’t be able to alienate the children’s shares without their consent. And with this agreement, not everything is simple.
Having previously undergone consultation with the guardianship authorities at our place of residence, we breathed more or less freely: it turns out that until recently we calmly agreed on the alienation of the children’s shares, subject to the opening of a special trust account in favor of the children and the placement of funds in it in an amount not less than the size of the maternity capital. However, just today it was announced to us that this scheme no longer works, and those who used it are denied approval.
The scheme with the allocation of shares instead of those sold in a three-room apartment purchased “to expand the area” will also not receive support in the OOiP due to the prohibition of compensated transactions between children and parents under Art. 37 of the Civil Code (the apartment has already been purchased using a mortgage, de jure it is owned by the parents). I really don’t understand why I can’t, in exchange for the shares being sold, give the children similar shares in a larger apartment, but oh well. As a result, the guardianship authorities offered us to purchase a new apartment for the children of no less area, the cost of the shares in which would be no less than the cost of the children’s shares in the existing (sold by us) apartment.
At the same time, the guardianship authorities cannot provide clear criteria for a transaction for the purchase of new housing for children to replace the alienated one, compliance with which is ensured by the approval of the sale of children's shares in the one-room apartment alienated by us. The above two points were only voiced: the living space and the cost of the shares are no less than in the current apartment.
It is clear that in Moscow it is unrealistic to purchase an apartment of the same area for 500 thousand (the cost of maternal capital). However, we did not plan to allocate more for the purchase of new housing for the children - we need to repay the mortgage loan in the new apartment, purchased “for growth,” for which we are selling the previous one. Regarding the purchase of housing for children in other regions, the guardianship authorities do not guarantee approval and hint that refusal options are quite possible.
As a result, we have an absurd situation: the state seems to be vigilant that the housing rights of children are not violated, while the literal interpretation of existing norms leads the guardianship authorities into a stupor when it comes to approving the sale of housing of a smaller area in order to provide children with housing in an apartment of a larger area, if it is already in parents' property. As a result, maternity capital, which seems to be designed to solve the housing problems of families, after fulfilling obligations under it, becomes a stumbling block in solving the same housing problems when it is necessary to increase the living space and use the money from the sale of the original apartment for this. I am sure that there are a lot of such situations in Russia, and it seems that our public authorities cannot offer an adequate answer for conscientious parents.
PS I have not yet studied the problem in depth legally, perhaps the guardianship authorities are wrong in some way, however, paragraph 3 of Art. 37 of the Civil Code and the prohibition of paid transactions between parents and children have not been canceled. Since it is important for buyers to complete the transaction no later than the beginning of June, we are not considering options with a subsequent appeal in court and are looking for a way to 100% approve the OO&P transaction. There seems to be no uniform regulation for approving such transactions - apparently, here the municipalities are “who knows what”. At least, this is the impression one gets when first approaching the question.
