The procedure for registering the assignment of rights to claim an apartment

Article updated: December 24, 2021
Mitrofanova SvetlanaLawyer. Work experience - 15 years

Transfer of ownership rights to an apartment, i.e. a transaction for the purchase and sale of an apartment before the construction of a house is completed is called a cession. The assignor (a person who bought an apartment in a new building directly from the Developer, most often an investor) sells, i.e. transfers to the assignee (buyer) the right to receive a new apartment for a higher fee than he purchased from the construction company. The buyer must understand that when purchasing an apartment by assignment, not only the right of a construction participant is transferred to him, but also the responsibilities and risks associated with violations due to the fault of the Developer.

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What is assignment

An assignment is an agreement under which the right to claim real estate is transferred to the buyer. The contract is called “assignment”, the seller is called the assignor, and the buyer is called the assignee. The assignment is regulated by Federal Law No. 214 and certain clauses of the Civil Code of the Russian Federation, in particular Article 382.

When transferring, you do not have a choice between secondary and under construction housing. Only an apartment under construction can be transferred. After all, the essence of the assignment is that under it you do not buy ownership of the object, but only the right to claim it. The premises have not been built and are not registered in the documents. The assignee will claim title after the building is in use. This process requires a separate package of documents.

The assignment is legal if the object of the transaction is premises in a new building. The shareholder, at his own request, assigns his right of claim only after the transaction price is paid, or when the debt is transferred to a new shareholder.

The rights are assigned along with the obligations of the shareholders. But you can assign a share in a housing construction cooperative. However, transactions with DDU are regulated by law. Therefore, if you have a choice between DDU and housing cooperative, give preference to DDU. This option is legally safe for both the assignor and the assignee.

The assignment agreement is concluded as an additional document. In the original DDU, after the assignment, the face of the shareholder will change. When the house is built and put into operation, the insurance company will transfer ownership not to the one who was the first buyer, but to the one who received the right of claim under the assignment.

What is needed to make the assignment legal and safe?

1. The assignment must be registered with Rosreestr. An unregistered transaction does not actually give the legal right to purchase.
2. The approval of the construction company is required before entering into a contract. Otherwise, the assignment will not take place.

It seems that assignment is generally similar to purchase and sale. Although there is one fundamental difference between them. As a result of the sale and purchase, you directly purchase an apartment or other premises and can register ownership of it. The assignment only brings the right of claim to an apartment that has not yet been built or rented out. In some cases, in addition to paying for the apartment upon assignment, the buyer receives the obligation to pay the remaining funds to the developer. Those. assignment is the purchase of not finished housing, but a guarantee that the apartment will be received.

Risks for the buyer

We will separately highlight the risks that the buyer may face:

1. Delays in construction deadlines, complete freezing of construction. If a developer has a bad financial situation, he usually pays contractors with apartments. In the future, such real estate is sold by legal entities under an assignment agreement, and it is not a fact that the assignee will receive it within the established time frame.
2. Buying an apartment with debts. The assignor may not fully pay the construction company under the DDU, and then the debt obligations will have to be borne by the new shareholder - the assignee.
3. Execution of an assignment agreement using forged documents by the assignor. This also happens. The assignee may be left without an apartment and without money if he pays the full cost before registering the transaction with Rosreestr.
4. Challenging the deal. For example, if the property was acquired during marriage and the assignor did not receive the notarial consent of the spouse.

A court may also recognize an assignment agreement for another reason.

For example, if the assignor is declared bankrupt. In this case, all transactions for the past three years are canceled.

Pros and cons of assigning the right to claim real estate

Assignment is an opportunity to both save and make money on buying/selling. If both parties agree on mutually beneficial points, apartments on assignment can become a good source of income. Let's talk in more detail about the pros and cons of this method of buying and selling.

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How to choose the right property to purchase via transfer

There are a lot of disadvantages to registering a concession, but it is quite possible to minimize the risks. In particular, we will talk about the risks associated with the assignor’s dishonesty, the developer’s bankruptcy, and delays in deadlines. When starting negotiations, request the original share participation agreement with the seal and signature of the construction company, the seal of Rosreestr, and a special registration mark. They don’t want to provide you with a DDU or it doesn’t contain this data? You have stumbled upon a scammer.

If everything is in order with the assignor, we next check the reputation of the construction company. Read reviews from current residents, owners, shareholders, and other people who have rented an apartment. Are there more negative reviews? The acquisition can be risky. If there is more positivity, you can trust the company.

Find out if the insurance company is bankrupt online on the website “Unified Federal Register of Bankruptcy Information”. Search for your insurance company in the “Debtor Search” field, and then select the “Developer” category to narrow the search area. Don’t mess with a bankrupt; it will take years to get him to rent out his house or at least compensate him.

Find out if there are criminal lawsuits against the developer. You will find information about this on the “Electronic Justice” website. Analyze the reasons for the claims and what the plaintiffs are seeking.

Take a look at the project declaration, which is posted with the developer or sent directly to the client after the first request. Information about construction timeframes and property characteristics is important. If the data matches reality, you can trust the company.

How to transfer an apartment in a building under construction

To purchase an apartment on a concession basis, you need to go through a difficult path. We have prepared step-by-step instructions on what needs to be done.

Step 1: collect a package of documents

To formalize the assignment of real estate, both parties provide:

• consent of the spouse in writing or in person at a meeting;
• original DDU;
• consent of the UK;
• certificate of absence of debts to the insurance company;
• consent of the banking organization if a mortgage was issued.

The consent of the assignor's spouse in writing is necessary if the share participation agreement was drawn up during marriage, and the purchase was paid for at that time. Real estate is classified as joint property, so if the transaction is carried out without the consent of the spouse, it can be challenged in court. This works in both directions, and in relation to the buyer too. Experts also recommend finding out if the seller has recently divorced. The former spouse can file a claim for division of jointly acquired property within 3 years.

Coordination of the assignment with the developer is necessary because this clause may be written on the original share participation agreement. Otherwise, the construction company may file a claim to have the assignment declared illegitimate. If agreement with the developer is mentioned in the DDU, obtain written permission from the company. If this requirement is missing, send a notification to the IC. Some DDUs contain instructions that the insurance company may charge a fee for issuing consent.

A certificate of no debt is issued by the construction company only when the cost specified in the contract is fully paid. If at the time of registration of the assignment there is a debt, then a representative of the insurance company participates in the assignment, and the assignee - the future shareholder - will pay the debt.

The bank's approval for the assignment of claims is necessary if the assignor purchased the property with a mortgage. This means that the right of claim to the object under construction is the bank’s collateral. If the bank does not approve the assignment, it will be illegal. The bank will be able to challenge and cancel the assignment. Important: some banking organizations allow assignment of rights only if the entire mortgage has already been paid off.

Step 2: sign an agreement

Put the assignment in writing. The document must indicate the following information:

1. Date and place (city) of the transaction.
2. Address and passport details of the assignor and assignee.
3. Serial number, date of conclusion and information about the parties to the agreement.
4. Address and characteristics of the apartment you are registering for assignment.
5. The valuation of the assignment is the value of the assignment that the assignee will pay to the assignor.
6. Payment procedure and account details (usually the assignment is paid through state registration, in cash, by transfer to a bank or letter of credit).
7. A list of documents and deadlines within which the seller must transfer to the buyer. For example, DDU, payment slips confirming payment for insurance services.
8. Rights and obligations of the parties.
9. Their signature and transcript.

When drawing up an agreement for the assignment of apartments, keep one thing in mind. With the help of an assignment agreement, you can secure your rights by specifying in the terms of the transaction the responsibility of the construction company to the participant in shared construction. This can be done if the developer has provided written permission for the assignment. In this way, you duplicate the construction company's responsibilities to you in the assignment. With such a document, it will be easier for you to obtain payment of penalties for failures or other problems with the delivery of the object.

Important: there must be as many copies of the agreement as there are parties to the assignment. Those. one each for the assignor, assignee, Rosreestr, bank and insurance company.

Step 3: register the agreement with Rosreestr

To do this, you need to go to Rosreestr or a branch of the MFC and provide:

1. original DDU,
2. assignment agreement,
3. receipt of payment of state duty,
4. passport of the assignor and assignee,
5. notarized consent of the spouses,
6. consent of the UK,
7. a certificate of payment of debts to the insurance company or an obligation to pay the remaining amount,
8. consent of the banking organization.

You must provide original documents or notarized copies. The state duty for the sale of real estate on assignment must be paid in advance. The duty is 350 rubles, the responsibility to pay lies with the buyer.

When the employee accepts the package of documents, you will receive a receipt with a list of documents provided and the deadline for making adjustments to the equity participation agreement. The process takes 10 days.

Pitfalls you need to know about

Assignment of a mortgaged apartment

This process is more complicated than the assignment of an apartment that was not purchased on credit. First you need to pay the entire mortgage amount, and then draw up an assignment agreement. Otherwise, the borrower bank will not agree on the assignment, or will challenge the transaction in court. If you do want to reassign your mortgage, talk to a real estate professional first.

If the rights to a new building are for minors

If the right to claim under an equity participation agreement belongs to a minor, an addition to the required documents will be the approval of the assignment by the guardianship authorities. The transaction will be completed not by the child/teenager, but by his legal representative.

If the child care home was issued with maternity capital

The assignment becomes more complicated if maternity capital was used to purchase real estate. The assignment of rights must contain information that upon registration of ownership, the seller’s children will receive their shares. Therefore, it is not profitable for the buyer to purchase such an apartment.

Taxation

In accordance with the Tax Code of Russia, any income received is taxed. This also applies to the implementation of claims rights. Tax is paid on the difference between the income from the assignment and the expenses incurred under the DDU.

Attention! If the home is sold at the same price as paid under the DDU, the assignor's income is 0 and no tax is charged. However, this does not eliminate the obligation to submit a declaration in Form 3-NDFL.

By neglecting the requirements of the law, you can “run into” a fine for late filing of a declaration or a requirement to pay tax on the full amount of the transaction.

FAQ

1. What documents are needed to register ownership?

Passport, cession, DDU, copy of the commissioning permit, acceptance certificate, receipt of payment of the state duty.

2. Is it necessary to carry out legal due diligence before registering a cession?

Yes, there are often scammers for whom the assignment of an apartment is a scheme of deception. At a minimum, check whether this apartment has been assigned before.

3. Until what point can a DDU be assigned?

Until the moment of commissioning and signing of the acceptance certificate of the apartment.

4. If I want to purchase an apartment in another city, can I carry out the assignment remotely?

Yes, for this you need to make an EDS (electronic signature).