How to exchange an apartment with an additional payment for a larger or smaller one in 2022: documents, tax

The legislative framework

A block of articles of the Civil Code of the Russian Federation from 567 to 571 is devoted to the exchange. In accordance with these norms, the exchange of apartments is formalized by an exchange agreement. The agreement is considered as two sales and purchases carried out under one document. It means that:

• the party is simultaneously considered the seller of his apartment and the buyer of someone else’s;
• To complete a transaction, you need the same package of documents as for the sale and purchase;
• the transfer of an apartment can be formalized in a separate act or stated in the exchange agreement that the functions of the transfer document are performed by the contract itself;
• the property rights of the parties must be registered in Rosreestr;
• When exchanging an apartment, the tax is calculated and paid as under the DCT.

In addition, to change apartments, you can use an alternative option - draw up a separate purchase and sale agreement for each. How exactly to exchange an apartment depends on the specific situation. There is no particular difference in the contracts, so you need to see if there is a suitable option for exchange. If available, you can make an exchange, but if the search is just underway, then it may be better to use standard DCT. It will be faster this way.

Exchange options

Depending on the market in which the apartment is exchanged, there are three transaction options:

• exchange on the secondary market - an exchange agreement or two monetary agreements are concluded between individuals;
• exchange for a new building under the trade-in program - a contract is concluded between the developer and the buyer, according to which the old apartment is used to pay for the new housing;
• exchange of municipal housing under the control of the administration.

Attention! This article is devoted to the exchange of privatized apartments. How to exchange non-privatized, municipal housing, read here.

Registration procedure

In order to properly exchange apartments, you need to clearly understand the structure of how the process occurs. To do this you will need to perform the following list of operations:

1. Decide on the purpose of exchanging residential real estate . If the purpose of the exchange is to purchase an apartment with a larger area, it is necessary to soberly assess the available budget intended for additional payment. If the essence of the exchange is to make a profit, you need to understand how convenient it will be to live in an apartment with a smaller area.
2. Study the real estate market . To fully understand the picture, you should study in detail the currently available list of current offers for the exchange of residential real estate. In addition, you should evaluate your capabilities to conduct an exchange operation. If you understand that it is impossible to carry out the exchange operation yourself, then you need to seek help from real estate agencies specializing in these issues.
3. Search for a real estate agency with a positive reputation . It is recommended to find and study detailed information about the activities of a particular real estate agency. At the same time, it is important to find real reviews from those people who have used its services. When a suitable agency is found, it is necessary to keep in mind that the agency takes approximately 5% of the amount of the transaction for its services. In essence, this is a small percentage for a transparently completed exchange of residential real estate. Maybe,

Exchange on the secondary market

It is quite possible to exchange an apartment for another on the secondary market. The most difficult stage is finding a suitable housing option, and registration is quite simple, with the help of one exchange agreement or two DCTs.

Exchange is possible:

• for equivalent housing - then the cost of the apartments is completely the same, down to the last penny;
• for larger and more expensive real estate - then you need to make an additional payment;
• for smaller and less expensive real estate - then the other party makes an additional payment.

List of documents

The list of documents is similar to a regular sale and purchase, only both parties collect:

• passports of exchange participants;
• extract from the Unified State Register of Real Estate – order a current one, no older than a month, to check arrests/bans/encumbrances;
• document-basis - for a deeper analysis of legal purity;
• technical passport - to check the redevelopment;
• a certificate of absence of debts for housing and communal services - in order not to receive an apartment with debt;
• certificate of registration - close the risk of getting an apartment with a registered person;
• notarized consent of the spouse to the transaction;
• permission for guardianship if an apartment belonging to a child is alienated;
• a receipt for payment of the state fee of 2,000 rubles for each apartment - for the MFC.

When the documents are collected, you can draw up an agreement for exchange.

Agreement form

In the agreement for the exchange of an apartment with or without additional payment, you must specify:

• Full name, passports and addresses of the parties;
• description of apartments with address, cadastral number, area, number of rooms;
• general legal formula: “The parties exchange the apartments belonging to them”;
• cost of apartments, size and procedure for additional payment;
• transfer procedure (under a deed or under an agreement);
• other conditions that the parties deem necessary.

The cost must be indicated. The parties can base it on any numbers - market, cadastral or inventory value. There is no need to attach any special reports; you just need to evaluate the property at your own discretion. The amount of the surcharge is also required.

If no additional payment is planned, this is also stated in the agreement. The prices in this case are equal.

ATTENTION! Download the exchange agreement form to fill out. The transaction does not require notarization if there are no minor owners and shares in the right are not alienated.

Procedure

Let's look at how an apartment is exchanged on the secondary market step by step:

1. Search for options for exchange, preliminary inspection of housing and preliminary agreements.
2. Collecting documents for apartments according to the list above.
3. Drawing up an agreement.
4. Submitting an agreement to the MFC for registration of rights. You must come to submit in person with your passports and transaction documents. The application will be completed by an MFC employee at the reception.
5. Registration takes 3-14 days, after which the parties are issued statements indicating their rights to housing.
6. Additional payment and actual transfer can be done at any stage.

If the transaction is carried out using two DCTs, then you will need to take two coupons to the MFC - since two sets of documents will be submitted.

Additional payment can be made using any method named in the article at this link.

Tax issue

Since an exchange with or without surcharge is equivalent to a sale and purchase, as a result of the transaction, the parties must pay a 13% tax to the budget if the property was in their ownership for less than 3 (5) years. When exchanging with an additional payment under one contract, citizens often make the mistake of calculating personal income tax on the amount of the additional payment. This is incorrect - the tax base in this case will be equal to the price of the transferred apartment.

Example. Sidelnikov A.P. and Palochkin G.V. We entered into an agreement to exchange our apartments with an additional payment. Palochkin’s housing is not subject to tax, because was in his possession for more than 5 years. Sidelnikov’s real estate is valued by the parties at 3,500,000 rubles, of which 3 million is paid for by Palochkin’s apartment, and 500 thousand goes as an additional payment. The tax must be calculated on the full cost - 3.5 million, and not on the amount of the surcharge.

Moreover, each of the “sellers” has the right to a tax deduction on sales and a tax deduction on purchases. The scheme is as follows:

• first of all, the tax base is reduced by a fixed deduction from the seller - 1 million rubles;
• then this point is reduced by the buyer’s deduction, since both transactions were made in the same tax period - by a maximum of 2 million rubles;
• 13% is taken from the amount received - this is the amount of tax to be paid.

Example. Vasyutina L.A. exchanged her apartment worth 3,000,000 rubles for another apartment worth 2,700,000 rubles and received an additional payment of 300,000 rubles. The tax base in her case was 3,000,000 rubles. By applying the seller’s tax deduction, Vasyutina received a base amount of 2,000,000 rubles. As a buyer of another home, she is entitled to a maximum deduction of 2,000,000 rubles. By applying it, Vasyutina will receive a tax base of 0 rubles - she will not have to pay tax.

Thus, the maximum deduction can reach 3 million rubles (1 million deduction from the seller + 2 million deduction from the buyer when tax is offset). All transactions are reflected in the 3rd personal income tax declaration. Read more about paying tax here.

Sell ​​or exchange? Adviсe

To make a choice, it is necessary to take into account that transactions for the exchange and purchase and sale of real estate have common characteristics:

1. it is necessary to pay 13% tax on the cost of housing (if a person has owned the property for more than 5 years, then there is no need to pay it);
2. you must register the apartment in your name;
3. the transaction is impossible if the participant has not received permission from his spouse, certified by an employee of a notary agency;
4. After the transaction, minors must be provided with living conditions that are at least no worse than the latter;
5. it is necessary to pay a state fee for registering the transfer of ownership rights;
6. It is unacceptable for housing to be under collateral or arrest so that other persons have rights to it;
7. parties to the transaction have the right to use the assistance of their legal representatives.

At the same time, these agreements also have distinctive aspects:

1. housing used under a social lease agreement cannot be sold - it can only be exchanged;
2. Carrying out a purchase and sale transaction requires less time, since if you want to exchange an apartment, it is not easy to find someone willing to exchange it;
3. a transaction for the purchase and sale of housing is accompanied by payment in money, and a transaction for the exchange of apartments is the acceptance of real estate by the participants from each other;
4. if the agreement needs to be cancelled, then during the sale the parties may face problems in returning the funds, whereas when exchanging the apartments, they are simply returned to the previous owners.

Thus, the choice between barter and purchase and sale must be made by the homeowner independently, based on the prevailing circumstances and personal preferences. For example, in the case of a non-privatized apartment, it is sometimes more profitable to register it as personal property, and then carry out a standard exchange or sale of housing.

Before starting the process of exchanging an apartment, it is recommended to consult a professional lawyer for advice. He will explain in detail the procedure based on the current circumstances, will assist in collecting the documentation package and concluding an agreement.

Exchange for a new building

A completely different scheme for exchanging an apartment applies to transactions on the new housing market. Under the trade-in scheme, a developer or real estate agency accepts an old apartment for sale and simultaneously books a new one, fixing the price.

Attention! In trade-in, several agreements are most often concluded - for the provision of services for the sale of old housing for a percentage; purchase and sale agreement with the found buyer; booking agreement and finally the purchase and sale agreement for the new home.

There is another, less common scheme - when the old apartment is taken as part of the payment for the new one. Additional payment is made according to the DCT. Such operations are carried out by developers.

Usually the following requirements are imposed on old housing:

• location in the city in which the new building is purchased;
• good technical condition and availability of all documents;
• the cost is lower than the price of new housing.

Note! The developer, as a rule, conducts a special market assessment to establish the real value of the property from an independent appraiser.

List of documents and procedure

Typically, developers ask to provide the following documents:

• originals of title documents and an extract from the Unified State Register of Real Estate;
• registration certificate not older than 5 years;
• notarized consent of the spouse, permission for guardianship if there are minor participants;
• certificate of absence of debts for housing and communal services, major repairs, passports for electricity, water and gas meters;
• certificate of registration.

Based on these documents, a DCP is developed according to the developer’s form, after which the document is signed and submitted for registration through the MFC to Rosreestr. After state registration, the final payment is made - additional payment.

Remember the children

Matters can be a little complicated if children live in the apartment. In this case, their interests must be respected . This means that you will need to report to the guardianship authorities and guarantee that the children will receive the square meters they are entitled to.

You must obtain permission for alienation, so you will have to contact the guardianship authorities with certain documents.

There is no list of documents strictly established by law; the usual package of documents includes:

• Documents for the privatization of housing that will participate in the transaction;
• Extract from the house register (where to get an extract);
• Real estate documents: technical passport and cadastral passport;
• Certificate from appraisers about the real value of housing;
• Copies of personal bills for housing;
• Documents that confirm the relationship with the child.

Usually they come to the guardianship authorities several times. And the first visit needs to be made to the inspector to explain why you are making a deal and to clarify exactly what documents need to be brought.

The rights of incapacitated family members and people with disabilities should also not be violated. Their interests in the transaction must be represented by guardians.

Exchange of mortgage apartment

If the property that is planned to be exchanged is under a mortgage, then the mortgage must be paid off before the transaction. Any transactions with mortgaged property must be coordinated with the bank and obtain its consent, otherwise the transaction may be canceled through the court, and the apartment may be seized to pay off the mortgage debt.

It is almost impossible to obtain bank approval for the exchange of mortgage real estate under an exchange agreement, even with an additional payment. But there are other ways of exchange:

• sale to the buyer with transfer of mortgage debt to him;
• conclusion of a loan agreement with a deposit sufficient to repay the loan, removal of the encumbrance and sale of housing.

The money received from the sale and purchase is used to purchase another home.

For more information about the alienation of mortgaged areas, read the article at this link.

Features and nuances

Without intermediaries

Having taken upon yourself the responsibility to act independently, without the help of realtors, you must remember that in addition to documentation, you must also check the condition of the apartment for compliance with the stated requirements .

Since the apartment desired under the contract is located in another city, you need to go there and assess the condition with your own eyes. Perhaps something will not suit you, and something the current residents have tried to hide. If you are not satisfied with the condition of the living space, you can demand an additional payment or refuse the transaction (read about the exchange agreement with an additional payment).

Keep in mind that the price is influenced by a number of factors. In a city with a more dense population, housing will cost more than in a smaller one. In addition, the price is affected by the condition of the house, location and other factors.

To ensure that you do not have any disputes with your opponent, invite an appraiser to inspect one or the other residential area. From the specialist’s verdict, you can draw conclusions for yourself and proceed to the transaction.