Pravozhil.com > Shared construction > Notice of assignment of the right of claim - sample
The acquisition of apartments in new buildings by assignment of the right of claim has recently become more frequent in the Russian Federation. Therefore, it is worth finding out how the notification of assignment of the right of claim occurs, what is the sample. Indeed, despite some risks, citizens willingly resort to this method of buying a home.
Among the readers of our resource you can also find participants in assignments of this kind, so today’s material will focus on it.
What is assignment of rights to an apartment?
Assignment of rights to an apartment is the transfer of rights to real estate until the registration of ownership
This is a transfer of rights to an object that is under construction, for which the seller does not yet have formalized ownership rights. This action is possible if there is a DDU agreement with the developer. Moreover, if the latter wishes to control all actions regarding the object he is constructing, the DDU contains a clause on his personal participation in such transactions. That is, most often, assignment is possible only with his consent. In addition, third parties can influence the conclusion of the transaction, for example, banks if loans were used for the initial purchase, or relatives of the participants in the transaction if they have the appropriate rights.
The transaction is regulated by legislation (FZ-214 on shared construction and the Civil Code of the Russian Federation) and is completely legal. It is concluded between individuals/legal entities (shareholder and buyer), the developer does not act as a seller under such an agreement. The agreement is registered in the state register.
Procedure for registering the transfer of rights from the assignor to the assignee
The procedure for registering the transfer of rights between counterparties under an assignment agreement is established by the Administrative Regulations, approved. by order of the Ministry of Economic Development dated 06/07/2017 No. 278. In accordance with this act, the procedure begins with the submission by the applicant (the owner of the real estate, his representative or another person to whom such a right is granted by Law No. 218-FZ) of a package of documents, such as:
- statement;
- a document certifying the transfer of rights (in this case, both agreements);
- map-plan of the territory, if in the agreement between the debtor and the creditor the transferred object was a land plot;
- if a package of papers is presented by a representative, a document certifying his authority.
The procedure for presenting documents was approved by order of the Ministry of Economic Development dated November 26, 2015 No. 883.
By the time of application, the applicant must pay the state fee. In accordance with paragraph 22 of Art. 333.33 of the Tax Code, its value as a general rule varies from 2 thousand for individuals to 22 thousand rubles. for organizations. However, the size of the state duty differs in some cases. For example, when alienating rights to an enterprise, the state duty can be up to 60 thousand rubles. (clause 21 of article 333.33 of the Tax Code).
There is no need to submit a receipt for payment of the duty to Rosreestr - service employees will receive this data from the State Information System on State and Municipal Payments (GIS GMP).
Registration is carried out within 7 working days after the official of the government agency receives the application and the documents attached to it (9 working days if the documents were submitted through the multifunctional center).
In what cases is assignment of rights used?
If you want to sell an unfinished apartment, an assignment of rights is used, if the house is put into operation - a purchase and sale agreement
According to the norms of Federal Law-214, the assignment can be carried out within the framework of a DDU or a housing cooperative at any stage of the construction of an apartment building.
Important: the transaction is a transfer only for housing for which ownership rights have not been registered.
If the assignor managed to sign the acceptance certificate for the object, in the future you can buy an apartment from him only under a sales contract.
Therefore, the case for the assignment of rights of claim to the buyer when purchasing an apartment may be the stage of construction of a house by a contractor or cooperative.
Form of assignment agreement
The rules for registering an assignment, i.e. the assignment by the assignor (original creditor) to the assignee (new creditor) of the right of claim against the debtor, depend on the form in which the initial agreement was concluded between the assignor and the debtor (Article 389 of the Civil Code):
- if the transaction was concluded in simple written form, it is enough to draw up the document on paper;
- if powers are transferred under an agreement in notarial form, for example under an annuity agreement, you will have to contact a notary for certification of the assignment agreement;
- if rights are assigned under a transaction subject to state registration, one of the stages of the assignment will be an application to the registering authority.
NOTE! In accordance with Art. 164 of the Civil Code, the legal consequences of a transaction for which there is a requirement for state registration occur only after it. Accordingly, failure to submit an assignment agreement to Rosreestr will mean that the agreement between the assignor and the assignee does not give rise to legal consequences.
In this case, the parties need to take into account the position of the Supreme Court, which indicated that failure to comply with the established procedure for state registration of a transaction does not entail negative consequences for the debtor, who, having received a notice of assignment from the assignor, provided the new creditor with execution (clause 2 of the resolution of the Plenum of the Supreme Court dated December 21, 2017 No. 54).
Advantages and disadvantages of the procedure for the buyer
The main advantage for the buyer is the opportunity to save a lot
This procedure is most often used to make money on price differences. It is known that investing in a foundation pit is significantly lower than purchasing an object already under construction. Therefore, the first and undeniable advantage of assignment is the receipt of significant income.
According to practice, the search for a assignee should begin almost before the end of construction, the main thing is to be in time before signing the act of transferring the apartment with the developer.
Important: if you follow all the rules and control the situation on the real estate market, you can earn up to 15 - 20% of your investment.
In this case, the buyer also receives his benefit. Even though there is an increase in the cost of an already almost completed property, he saves from 5 to 20% on reassignment.
However, there are also disadvantages for the buyer:
- it is necessary to agree on the assignment with the developer, which will cost the buyer a significant amount;
- the need to negotiate with all persons involved in the transaction, banks, families of the parties, guardianship authorities, etc.;
- cooperation with Rosreestr;
- collecting a large number of documents.
Important: carrying out a transaction without first checking the honesty of the developer and the legitimacy of the seller’s actions is fraught with loss of money.
Invalidation of a transaction
A comprehensive verification of the transaction ensures its legal purity and will not allow a third interested party to recognize it as invalid.
It may be invalid:
- if you sell an apartment in a multi-storey building under construction by assignment without the knowledge of the developer. Upon receipt of information about such an action, he recognizes the transaction as invalid;
- if the seller is in debt, creditors, if there is a court decision, can cancel the assignment transaction;
- if the shareholder uses maternity capital to purchase an object, the transaction will be declared illegal at the request of the guardianship authority if the rights and property interests of minors are violated.
It is to avoid such unpleasant consequences that you should check the purity of the transaction before signing the contract.
Which is better: new building or resale?
As a rule, an apartment or apartment in a new building is purchased directly from the developer, while a resale apartment is purchased from the previous owner.
No one lived in the new building before you, the price per square meter is less than that of an apartment of the same class in the secondary market, there are promotions from developers, more modern layouts, however, you will not be able to quickly register at your place of residence, the elevator and gas will not be turned on until Most of the residents will not move in; most likely, they will have to wait for the development of infrastructure and the completion of repairs from the neighbors.
As a rule, you can move into a secondary property and register immediately after purchase; the infrastructure around it is already developed, however, most likely you will have to be content with a standard layout, worn-out communications, and you will need to check the legal purity of the property and the parties to the transaction.
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Buying an apartment by transfer from a married person
If the seller is married, the consent of the spouse is required
According to the Family Code, all property acquired in a legal marriage and with family income is community property. Spouses can only manage it jointly. Therefore, when participating in the assignment of rights, the buyer must check all information about the seller. Make a request to the departments and housing and communal services - find out everything about his marital status and the specifics of purchasing an apartment.
In order to make money off the buyer, scammers often use a scheme involving a missing passport, supposedly it has been lost, and a new one has just begun to be produced. The buyer pays money for the assignment, and the seller then goes on vacation with his wife, who presumably does not exist. In the future, the wife will challenge the deal, pretending that she knew nothing about the machinations of her insidious husband.
How to get an apartment under a contract of transfer of rights of claim
After registering the transfer of rights agreement, wait for the developer to put the house into operation. He will assign a postal address, issue a cadastral passport for the object itself and each apartment, draw up a protocol on the distribution of apartments and perform a number of other actions. He will give you a certified copy of the permission to put into operation and sign the act of acceptance and transfer of the apartment.
Contact the Register or MFC to register your property rights. Provide your employee with:
✔ passport of a citizen of the Russian Federation;
Sale of an apartment by assignment with debts to the developer
The absence of debts to the developer is another important point. According to the norms, you can only buy an assignment of rights for an apartment with fully fulfilled financial obligations to the developer.
Important: if there are outstanding debts and the issue has not been agreed upon with the developer, the transaction is easily invalidated.
Therefore, it is important to study this issue and obtain a certificate from the developer confirming full payment by the seller.
If there are debts, and the shareholder finds himself in a force majeure situation and is unable to repay them in full, an agreement is concluded in which a separate clause transfers the amount of the debt to the buyer’s payments for repayment.
At the same time, the developer must completely agree with this turn of events, as a sign of which he puts his signature on the document.
It is recommended to make sure that the seller has paid the developer in full
Sale of an apartment by assignment to several persons
Another aspect of purchasing a new building through the assignment of rights is fraught with risks when the buyer decides to conduct a transaction under a preliminary purchase and sale agreement.
Important: such an agreement is not registered in Rosreestr, which means that the assignment transaction under it also remains without registration.
Therefore, it is very difficult for the buyer to track the number of transactions carried out by the seller under this agreement. The lack of government control makes it possible for fraudsters to sell the same object several times, earning a lot of money by deceiving the buyer.
A preliminary purchase and sale agreement allows fraudsters to sell the rights to such an apartment several times; It’s better to consider the option with DDU
Send the originals to the developer
According to the agreement, I had to notify the bankruptcy trustee and the fund about the transaction, and also send them the original documents. To do this, I had three copies of the registered agreement in my hands. I sent scans of the contract by e-mail, and the originals by registered mail by Russian Post with a list of attachments and a declared value of 1 ruble.
I chose this shipping method to protect myself if disputes arise or I have to prove something in court. Firstly, the inventory shows exactly what I am sending. Secondly, when the notification of delivery of the letter was returned, I knew for sure that the addressee had actually received my documents. I paid 800 RUR for sending documents.
This is what the inventory looks like. This is how the mail confirms that you actually put documents in the envelope, and not greeting cards.
Conflict between contractor and developer
The seller of the assignment can be several persons:
- legal companies that bought dozens of apartments at the excavation stage for subsequent sale at the time the facility was put into operation;
- a contractor who cooperates with the developer to provide services and received payment in apartments as material objects, and not in money;
- a shareholder who personally entered into a PDU with the developer and is the owner of the property from the moment the foundation pit was created.
If everything is clear regarding legal companies and shareholders, then various situations may unfold regarding the contractor. For example, he did not fulfill the obligations assumed under the contract. The developer had complaints regarding the quality of services received or work performed, failure to meet deadlines and other aspects of cooperation.
Important: in this case, the developer will not want to make the payment or, in case of prepayment, will demand it back.
Purchasing an apartment from a contractor by assignment in this situation is subject to risks; the buyer remains out of work while the courts continue, which in the worst case could invalidate already concluded contracts. In most cases, the developer will receive satisfaction of his claims, and even if the contractor wins in court, a lot of time will pass in anticipation and panic.
Litigation can drag on for years
Interaction with a new borrower
Not all people are able to repay their obligations. The causes of financial problems may vary. Someone is laid off at work, and someone loses their ability to work. In this case, the borrower can transfer the responsibility for repaying the debt to another person (by agreement with the bank). The agreement can be signed only after checking the applicant.
It must meet the following requirements:
- Stable financial situation and employment;
- Absence of criminal and administrative crimes;
- Positive credit history;
- Low debt load;
- Availability of additional sources of income;
- Age from 21 to 65 years;
- Availability of a life and health insurance policy.
Mortgage department employees are usually reluctant to re-issue a loan. Assignment of a mortgage loan is carried out as a last resort when the client faces serious life troubles.
Other risks when buying an apartment by assignment of rights
In addition to the cases considered in detail, purchasing an apartment by assignment of the right of claim also has other risks that can disrupt the buyer’s expectations and plans.
Initially, you should consider the reliability of the seller as a borrower. If he has old outstanding debts, creditors have the right to protest all his property transactions concluded in the last year.
Important: even deeds of gift available for transfer upon assignment will be contested.
The same point applies to the current debt taken out specifically for the purchase of an apartment at the time the foundation pit was formed.
If the shareholder has a mortgage, before selling the apartment by assignment, he must pay off the entire debt. Otherwise, the bank's consent is required.
Important: financial institutions rarely agree to such transactions, and it is almost impossible to obtain their consent.
In order to conclude a deal, the seller may not notify the lender about it. Having received news about a change of debtor, the bank recognizes the transaction as invalid.
Buying an apartment with maternity capital is associated with additional risks and problems. In this case, it is important to respect the interests of minors, who necessarily have a property share and are co-owners.
Here you will have to cooperate with the guardianship authorities and the Pension Fund, which controls the distribution of money under the certificate.
Important: it must be proven that there is no banal cashing out of maternity capital money. Children must be provided with similar housing; until this time they will be registered in the apartment.
If both parties are purchasing a home with a mortgage, it is important that the seller pays off his or her debt to the lender. Since the apartment will be the main collateral for the buyer, there should be no encumbrances or liens on it. Otherwise, the buyer will not be able to obtain a loan to pay the seller in the absence of an identical object that can act as collateral.
Important: either party can recognize the contract as void if it is drawn up with errors and does not contain complete, detailed information about the transaction.
Therefore, the essential terms of the contract should be taken seriously.
