REAL ESTATE TRANSACTIONS
Real estate transactions are a multifaceted process that raises many questions from both sellers and buyers. Here questions from many branches of law are intertwined - civil, family, land, tax, legislation on state registration of real estate and legislation on guardianship and trusteeship. Let's try to answer some of them.
What real estate transactions are subject to mandatory notarization?
At the request of the parties, any transaction for the alienation of real estate can be notarized, but the legislator has clearly defined the types of transactions that are subject to mandatory notarization:
transactions related to the disposal of real estate under guardianship conditions, as well as transactions for the alienation of real estate belonging to a minor citizen or a citizen recognized as having limited legal capacity;
transactions for the alienation of shares in the right of common ownership of real estate, including the alienation of a real estate object simultaneously by all participants in shared ownership under one transaction.
That is, during the alienation (sale, donation, exchange) by the owner of a share of real estate (apartment, residential building, land plot, etc.) to another co-owner or third party, as well as during the alienation to a third party of an entire property registered in common shared ownership several persons, notarization of the agreement is required.
Are transactions involving jointly owned real estate subject to notarization?
Property owned by two or more persons belongs to them under the right of common ownership. The legislation provides for two types of common property - shared and joint property. If the property is owned by two or more persons without defining shares, then it is joint property, and if shares are established, then it is shared property.
Thus, if the property is owned by joint ownership and is alienated in full, then such a transaction is not subject to mandatory notarization.
What legal requirements must be met when alienating a share of real estate to an outsider?
A contract for the sale and purchase of a share in the ownership of a real estate property to an outsider is subject to mandatory notarization. Such a transaction is carried out subject to the requirements of Article 250 of the Civil Code of the Russian Federation, according to which, when selling a share in the right of common ownership to an outsider, the remaining participants in shared ownership have a pre-emptive right to purchase the share being sold at the price for which it is sold and on other equal conditions.
The seller of a share is obliged to notify in writing the other participants in shared ownership of his intention to sell his share to an outsider, indicating the price and other conditions under which he sells it. If the remaining participants in shared ownership refuse to purchase or do not acquire the sold share in the ownership of real estate within a month from the date of notification, the seller has the right to sell his share to any person.
If the notary establishes that the seller of the share has submitted documents confirming the refusal of the remaining participants in shared ownership to purchase the share, the transaction can be completed before the expiration of the period established by law.
Is an agreement on the alienation of real estate belonging to a child subject to notarization?
Transactions related to the disposal of real estate owned by a minor citizen are subject to mandatory notarization.
Such transactions are carried out exclusively with the prior permission of the guardianship and trusteeship authorities to complete the transaction, as well as with the mandatory fulfillment by the legal representatives of the child (parents, guardians) of the conditions under which the guardianship and trusteeship authorities issued such consent.
For example, the guardianship and trusteeship authorities issued a resolution on preliminary permission to complete a transaction - the sale of an apartment belonging to a minor child with the condition that another apartment be registered as the child’s property or with the condition that the funds due to the child from the transaction be credited to a bank account opened in the child’s name.
These measures are aimed at protecting the property rights and legitimate interests of minor citizens.
Which notary should I contact to certify a real estate purchase and sale agreement?
According to the amendments made to the Fundamentals of the legislation of the Russian Federation on notaries, certification of contracts for the alienation of real estate objects is carried out by a notary operating in any of the notarial districts located within the constituent entity of the Russian Federation on the territory of which the specified property is located.
This means that to certify a contract for the purchase and sale of real estate located in any locality in the Khabarovsk Territory, you can contact any notary in the Khabarovsk Territory. For example, a notary of the city of Komsomolsk-on-Amur has the right to certify a contract for the sale and purchase of an apartment located in the village of Sosnovka, Khabarovsk district, Khabarovsk Territory.
What responsibility does a notary bear when certifying a real estate purchase and sale agreement?
The notary bears full property liability for damage caused to the citizen’s property through his fault. In accordance with the Fundamentals of the legislation of the Russian Federation on notaries, a notary certifying contracts for the disposal of real estate is obliged to conclude a civil liability agreement.
Damage caused to a citizen’s property is compensated, first of all, through insurance compensation under a notary’s civil liability insurance contract. If this insurance compensation is not enough, the damage will be compensated from collective insurance funds by the regional notary chamber. If the first two insurance indemnities are not enough, then the damage will be compensated from the notary’s personal property. The fourth level of “insurance” protection is the compensation fund of the Federal Notary Chamber.
To what extent will a notary be compensated for damages under a real estate purchase and sale agreement if it is declared invalid?
When determining the amount of damage caused by the actions or inaction of a notary associated with the application of the consequences of the invalidity of a transaction, the subject of which was subject to assessment, the total amount of liability of the notary in connection with the recognition of the transaction as invalid cannot exceed the total value of the subject of assessment given to him by its participants (parties).
This means that if the parties indicate in the contract that the price of the property is clearly underestimated and the contract is declared invalid, the amount of insurance compensation will be determined based on the value indicated by the parties in the sales contract.
What documents must be provided to a notary to certify contracts for the alienation of real estate?
The legislation does not provide an exhaustive list for concluding contracts, but given the current practice, in order to protect the rights and legitimate interests of citizens, for the purity and transparency of the transaction, the notary must be provided with:
identification documents of the parties (passport, birth certificate);
documents confirming the powers of representatives (power of attorney, documents confirming the rights of legal representatives (birth certificate), wards (resolution of the department of guardianship and trusteeship) and others);
title documents (agreement on the transfer of an apartment into the ownership of citizens, a contract of purchase and sale, exchange, donation, a certificate of inheritance, an agreement of participation in shared construction, etc.);
certificate of state registration of the right or an extract certifying the state registration of the right;
permission from the guardianship and trusteeship authorities (if the transaction affects the interests of minor children and persons recognized by the court as incompetent or partially capable);
applications from co-owners to waive the right of first refusal to purchase a share of real estate;
certificate of absence of registered persons and arrears of payments.
For each transaction, the issue of the need for certain documents is decided individually.
The notary independently electronically requests the information contained in the Unified State Register of Real Estate, necessary to certify the agreement.
Is it always necessary to obtain the spouse's consent to a transaction?
Property acquired by spouses during marriage is their joint property, regardless of which of the spouses such property is registered, unless an agreement between them establishes a different regime for this property (a marriage contract or an agreement on the division of property).
In order for one of the spouses to enter into a transaction for the disposal of property, the rights to which are subject to state registration, a transaction for which a mandatory notarial form is established by law, or a transaction subject to mandatory state registration, it is necessary to obtain the notarized consent of the other spouse.
What if the transaction is completed, but the spouse’s consent to its completion was not obtained?
The spouse, whose notarized consent to carry out the specified transaction was not received, has the right to demand that the transaction be declared invalid in court within a year from the date
What notary fee must citizens pay when certifying a transaction for the alienation of real estate?
When calculating the amount of the notary fee when certifying an agreement for the alienation of real estate, the value of the real estate specified by the parties in the agreement is accepted, but not lower than the cadastral value of the real estate. According to Article 333.24 of the Tax Code of the Russian Federation, the state duty is 0.5% of the value of the alienated real estate or a share of real estate, but not more than 20,000 rubles.
When certifying the contract, the notary also charges a fee for technical and legal work in accordance with Articles 15, 23 of the Fundamentals of the Legislation of the Russian Federation on notaries.
The costs associated with notarization of the contract can be borne by either party to the transaction in full, or the parties can pay for the notary’s services jointly, it all depends on the agreement of the parties among themselves.
What is the procedure for state registration of a notarized real estate alienation agreement?
The transfer of ownership under a notarized real estate alienation agreement is subject to mandatory state registration. The parties to the contract can submit documents for state registration independently to the territorial department of Rosreestr or the Multifunctional Center for the Provision of Public Services (MFC). At the request of the parties, a notary can submit documents for state registration. For performing a notarial act of submitting documents for state registration of rights to real estate and transactions with it, the notary charges a notarial fee.
Is it possible to avoid notarization of an agreement by concluding it “retroactively”?
For most people, buying real estate is a once-in-a-lifetime event. And you need to approach the paperwork as wisely and carefully as possible.
There are cases when citizens enter into a contract for the purchase and sale of real estate “retroactively”, that is, they date the contract earlier than the date of entry into force of the law obliging citizens to notarize the contract in order to avoid financial costs associated with paying for the services of a notary to certify the contract.
At the same time, citizens do not think about what negative consequences may occur if the transaction is declared invalid. And the risk of recognizing such a transaction as invalid is very high.
For example, the seller on the fictitious date specified in the contract could be absent (vacation, business trip, etc.) at the place where the contract was signed (in a city, town, etc.) or did not have the right to complete the transaction (due to limited legal capacity, serious illness , lack of ownership of real estate at that time, the presence of arrests and other encumbrances, etc.). If the transaction is settled by bank transfer, then, accordingly, the moment the money is credited to the real estate seller’s account will be much later than the date of conclusion of the agreement, which also indicates falsification of the agreement. Or a situation is possible when the seller of real estate is married and, therefore, the seller’s spouse must give notarized consent to the transaction, which cannot be formalized “retroactively.”
It is also necessary to keep in mind that the buyer’s ownership of real estate arises not from the moment of signing the contract, but from the moment of state registration of the transfer of ownership in the territorial Office of Rosreestr.
When purchasing real estate, a bona fide buyer must request, for example, a certificate for the sale of an apartment, an apartment card, an extract from the Unified State Register of Real Estate confirming the registered right of the seller to the alienated property, as well as other documents necessary for concluding an agreement that cannot be obtained retroactively .
In accordance with Article 1 of the Civil Code of the Russian Federation, when establishing, exercising and protecting civil rights and when performing civil duties, participants in civil legal relations must act in good faith. No one has the right to take advantage of illegal or dishonest behavior. According to the explanatory dictionary of Ozhegov S.N. “conscientious” means one who honestly fulfills his duties and obligations. Courts, when deciding whether a buyer is in good faith or bad faith, rely on whether the buyer exercised reasonable care in entering into the purchase and sale transaction.
A person who knew or should have known about the grounds for the invalidity of a contested transaction, after the recognition of this transaction as invalid, is not considered to have acted in good faith.
If the court recognizes the transaction as invalid, each party is obliged to return to the other everything received under the transaction, and if it is impossible to return what was received in kind, reimburse its value. That is, if the court declares the contract invalid, the buyer will have to return the purchased apartment to the seller, and the seller, in turn, is obliged to return to the buyer the funds paid by him under the contract. However, in practice, refunds from the seller may be impossible or difficult and must be paid in small payments over several years. As a result, the buyer, if the transaction is declared invalid, will not have the acquired property left, as well as the money to purchase another.
In addition, a contract for the alienation of real estate with a fictitious date can be declared invalid by the court not only at the request of the seller, but also, in the event of his death, by the seller’s heirs.
What goal did the legislator pursue by establishing the notarial form of real estate alienation agreements?
A notary, carrying out his activities on behalf of the state, is impartial, independent in his activities and bears full property responsibility, thereby guaranteeing the legality and purity of the transaction.
The main purpose of amending the law is to protect the rights and legitimate interests of citizens. First of all, this concerns the protection of the rights and legitimate interests of minors and incompetent citizens, the elderly, single and other socially vulnerable citizens. The changes are also aimed at combating crime and eliminating fraudulent schemes in the real estate sector.
What guarantees and advantages do the parties have when notarizing a transaction for the alienation of real estate?
When certifying an agreement, a notary establishes the identity of the parties, the powers of legal representatives, checks the legal capacity of the parties, ascertains their will to enter into a transaction, fully and comprehensively examines the essence of the agreement, its legality, and also that the agreement is not concluded under pressure or threat, that the parties have no circumstances, forcing them to make a deal on extremely unfavorable terms for them. The notary, certifying the agreement, explains to the parties the legal consequences of the transaction they are making, and controls the procedure for settlements under the transaction as much as possible.
In addition, the notary checks the legal purity of the transaction, requests and analyzes title and other necessary documents, checks the presence/absence of prohibitions, arrests, encumbrances, debts for utility and other payments, etc. If the seller or buyer carries out their actions by proxy, the notary establishes is it valid, has it been cancelled. In cases where a transaction takes place with the participation of incapacitated or minor persons, the notary checks the availability of prior permission from the guardianship and trusteeship authorities.
I would like to note that a notary is, first of all, a highly qualified lawyer who carries out his actions on behalf of the state, has a higher legal education and has received a license to carry out notarial acts in the prescribed manner and his role in performing any notarial acts is, first of all, the protection of rights and legitimate interests of citizens.
Thus, notarization of real estate transactions is a serious guarantee of the protection of the rights of citizens and, in contrast to a simple written form of an agreement, has unconditional evidentiary force.
