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Published: 04/04/2018
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After signing the purchase and sale agreement, re-registration of ownership from the seller to the buyer and transfer of the apartment, the final stage is registration or registration there. This procedure will require the collection and submission of a certain set of documents.
- Features of registration in the purchased apartment
- How to register after buying an apartment
- List of documents for registration registration
- Registration period
What happens if the contract is not registered?
Registration of the lease agreement is required by virtue of Art. 651 Civil Code of the Russian Federation. Otherwise, the agreement of the parties would not be valid. But in practice there is an important nuance.
If the agreement has not been registered, but the tenant moved into the premises under the act, he is obliged to pay and cannot be kicked out. This is the position of the Supreme Arbitration Court of the Russian Federation from paragraph 3 of Information Letter No. 165 dated February 25, 2014. The courts believe that otherwise entrepreneurs will use the lack of registration as an excuse not to pay. And landlords use it as a reason to kick them out of the premises.
An agreement without registration is not valid for third parties - Art. 433 Civil Code of the Russian Federation.
Third parties are, for example, the new owner of the property. After a few years of rent, the company can resell the premises. An entrepreneur may die, and an heir will take his place. The new owner has no right to evict the tenant - Art. 617 Civil Code of the Russian Federation. But only if, before registering the property, he saw the rental entry in the Unified State Register of Real Estate.
A registration agreement is also needed to obtain a license, for example, for strong alcohol in a bar. Without permanent premises, the licensing authority will not believe that in six months you will not move into a stall.
To register an agreement, do the following.
NTVP "Kedr - Consultant"
LLC "NTVP "Kedr - Consultant" » Services » Legal consultations » Housing: purchase and sale, maintenance, payment » Maintaining registration (registration) in an apartment that will be sold to a family member
The applicant lives in the apartment, is the owner of this apartment and is registered in it. In the future, she wants to sell the apartment to her daughter.
The applicant asks: will there be any obstacles to the sale of her daughter’s apartment and will she retain registration in the apartment after the sale?
Lawyer's answer.
During the consultation, the circumstances of the case were clarified, namely, it was established that the applicant does not definitely know all the owners of this apartment and their shares in it, and assumes that her husband, with whom she does not live, may have shares in the apartment.
In accordance with Part 1 of Article 30 of the Housing Code of the Russian Federation (hereinafter referred to as the Housing Code of the Russian Federation), the owner of a residential premises exercises the rights of ownership, use and disposal of the residential premises owned by him in accordance with its purpose and the limits of its use, which are established by this Code.
The owner has the right, at his own discretion, to take any actions in relation to his property that do not contradict the law and other legal acts and do not violate the rights and legally protected interests of other persons, including alienating his property into the ownership of other persons, transferring to them, while remaining the owner, the rights possession, use and disposal of property, pledge property and encumber it in other ways, dispose of it in any other way (clause 2 of Article 209 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation)).
Taking this into account, the owner of a residential premises has the right to independently dispose of the property belonging to him, including selling, donating, etc.
By virtue of Part 2 of Article 30 of the Housing Code of the Russian Federation, the owner of a residential premises has the right to provide possession and (or) use of residential premises belonging to him by right of ownership to a citizen on the basis of a rental agreement, a contract of gratuitous use or on other legal grounds.
In accordance with Article 31 of the Housing Code of the Russian Federation, family members of the owner of a residential premises include his spouse living together with this owner in the residential premises belonging to him, as well as the children and parents of this owner. Other relatives, disabled dependents and, in exceptional cases, other citizens may be recognized as members of the owner’s family if they are settled by the owner as members of his family.
Family members of the owner of a residential premises have the right to use this residential premises on an equal basis with its owner, unless otherwise established by an agreement between the owner and members of his family. Family members of the owner of a residential premises are obliged to use this residential premises for its intended purpose and ensure its safety.
To make a conclusion on the stated issues, first of all, the applicant needs to request from Rosreestr extracts from the Unified State Register, whether she is the sole owner or jointly with her husband (in what shares).
Then she needs to agree with her daughter on all the essential terms of the purchase and sale agreement: subject, price and list of persons living in this apartment who will retain the right to use this residential premises after her daughter purchases it. If it is established that the property is shared with the husband (joint or shared), then it is necessary to take into account the pre-emptive right of purchase of the co-owner (i.e. the husband), as well as the presence of a notarized consent to carry out the transaction if the property is joint.
Termination of ownership of residential premises (after the sale of a daughter) does not entail automatic termination of the right to use the residential premises and deregistration. If there is an expression of will of the new owner - the daughter - to continue the ownership and use of the residential premises by the applicant as a family member, the latter has the right to continue to use the residential premises and maintain registration at the place of residence.
During the consultation, the following texts were drawn up: a draft agreement for the purchase and sale of residential premises, a draft agreement for the gratuitous use of residential premises.
Abuyazidov A. M., legal consultant of the Federal Institution "Main Bureau of Medical and Social Expertise in the Udmurt Republic", [email protected]
Consultation given in November 2014.
Prepare the lease agreement and transfer deed
The lease agreement for registration is drawn up in the form of a single document on paper. An act of transfer of premises is attached to the contract. The parties sign both documents.
If you are renting out not the whole premises, but a part, you will need to prepare a technical plan.
Lease contract
The contract describes in detail the rented premises and indicates its cadastral number.
Transfer certificate
Sign the transfer certificate only after inspecting the premises. If you find any shortcomings, ask the landlord to fix them. With a signed document, you will not be able to make claims for broken sockets and leaking plumbing.
Look at our articles about important lease terms and safe signing of the deed - in the reference section “Agreements”.
Technical plan
You can take out a long-term lease on a property that is listed in the Unified State Register under its cadastral number. Otherwise, the registrars “do not see” what is being leased.
Usually the entire object is included in the register, for example, a 100 sq. m retail space on the ground floor of a building. But its individual parts, for example, a 15 sq. m block section for retail space, are not. This part must be entered into the register simultaneously with the registration of the lease. This is what Part 5 of Art. 44 of the Law on Real Estate Registration.
To do this, a cadastral engineer is invited to the premises, he prepares a technical plan. You can find an engineer on the Internet. The only thing is that you need to check the validity of his certificate in the Register of Cadastral Engineers.
The finished technical plan is submitted to Rosreestr along with documents for registration.
Features of registration in the purchased apartment
Registration refers to the registration of citizens at their place of residence. Its essence lies in the need to notify regulatory authorities about a person’s change of residence. When applying for registration, a stamp is placed in the passport indicating the registration address.
Registration standards are contained in the law “On the right to freedom of movement...” and “Rules for registration/deregistration...”. These documents indicate the possibility of registering a citizen when he receives an apartment by gift, inheritance or under a sales contract. Only the owner of the residential premises or other persons with his consent have the right to obtain permanent registration.
But it is worth understanding that buying an apartment as a property does not oblige a citizen to register in it . After all, according to the law, he may own several apartments, but he has the right to register only at one address. A citizen must register directly at his place of residence. Thus, it will provide access to a certain set of services: receiving outpatient care, preschool and school education, etc.
A person cannot have two registrations at the same time, but it is possible to register permanent and temporary registration simultaneously. It is worth considering that the presence or absence of registration in the purchased apartment does not in any way affect the owner’s rights to dispose of it at his own discretion.
The procedure for registering a purchased apartment will not differ much from the one that was re-registered under a deed of gift. The difference will only be in the legal grounds for the transfer of ownership.
To register after purchasing an apartment, a number of conditions must be simultaneously met:
- You must be discharged at your previous place of residence. But when registering within one territorial entity, this is not necessary: deregistration and registration can be done on the same day.
- An application for registration must be submitted in the prescribed form.
- You need to collect and attach a certain set of documents to the application.
If a child under the age of 14 is registered, then one nuance should be taken into account: he can only be registered together with one of the parents.
Members of his family can register with the owner in the apartment, as well as absolutely any person with his consent. Registration does not provide grounds to dispose of an apartment; registered persons only have the right to use the living space.
Find out what documents are needed in Rosreestr
The package of documents for registration depends on the status of the parties: individual entrepreneur or legal entity.
To find out the exact list of documents, call the MFC in your region. A call to the MFC is a key action in collecting papers. Nowhere on the Internet is there a list of documents for a specific transaction.
Documents for registration are submitted by one person: the tenant or the landlord. He will be the applicant.
The applicant pays the state fee: individual entrepreneur - 2,000 rubles, legal entity - 22,000 rubles. There may be a dispute regarding duty costs. To avoid it, write in advance in the rental agreement who bears these costs, or divide them equally.
Documents for everyone
— An application for registration of an agreement will be written by an MFC specialist at the reception.
— Lease agreement with transfer certificate — 3 original copies.
— Applicant’s passport.
— Document confirming payment of the state duty — paid by the applicant. An individual entrepreneur pays in cash through a terminal or current account, a legal entity pays only through an account. MFC employees have details for payment. If you pay from a current account, ask for details in advance.
Documents for legal entities
— Protocol on the appointment of a director - if he came to the transaction from a legal entity.
- Power of attorney for a representative with the director’s signature and seal - if someone other than the director came from a legal entity.
- Charter, extract from the Unified State Register of Legal Entities, certificate of assignment of TIN and ORGN - if Rosreestr itself does not receive information about the legal entity upon an interdepartmental request.
— A protocol on the approval of a major transaction is needed when rental payments for the entire period exceed 25% of the company’s money and property. Instead of a protocol, they may ask for a certificate that the transaction is not major for the company.
— Protocol on approval of an interested party transaction - if approval is required by the charter. Instead of a protocol, they may ask for a certificate that the agreement is not an interested party transaction for the company.
Documents for individual entrepreneurs
— The notarized consent of the spouse to rent out the premises is necessary if the lessor bought the property during marriage. Instead, they bring a marriage contract, a separation agreement or a court decision on the division of property.
Documents for the representative
- Notarized power of attorney for a representative - if another person came from an individual entrepreneur or individual, for example, a realtor.
Documents for premises in collateral
— Written consent of the bank to lease the collateral - if the premises are mortgaged or pledged by the bank.
Important: all documents must be submitted in the original or a notarized copy.
Submit documents for registration
Documents are handed over in person at the MFC of the region where the premises are located, or sent directly to Rosreestr - by mail or through the website.
At the MFC
Appointments at the MFC must be made in advance. At the appointed time, the applicant comes to the specialist, submits a package of documents and receives a receipt with the application number and the planned end date of registration. Using the number you can monitor the readiness of documents at the MFC.
By mail
Documents are sent by mail to Rosreestr by letter with a list of attachments. The application and documents are certified by a notary.
Remotely via the site
Documents are submitted through the Rosreestr website when each party has an electronic signature.
The period for registering a lease agreement is up to 9 working days. Another plus 5 days if you pass with a technical plan.
During this time, registrars check the papers and conduct an examination of the transaction.
What can go wrong:
- The documents are returned to the applicant if there are handwritten corrections in the lease agreement or a representative came, and the owner prohibited registration without his participation - Art. 25 of the Law on Real Estate Registration.
— Registration is suspended for up to three months when there is something wrong with rental rights. For example, there is a seizure on the premises or in the package without the consent of the bank. The applicant is asked to deliver documents - Art. 26 of the Law on Real Estate Registration.
— Registration is denied if the applicant has not submitted the missing papers under Art. within three months. 27 of the Law on Real Estate Registration.
Rosreestr sends a notification about the suspension of registration, return of the application and refusal. Sometimes specialists call or send SMS - this way information about a problem with the contract reaches you faster.
If everything is fine with the transaction, the registrars enter a record of the encumbrance into the Unified State Register of Real Estate and put a registration mark on the agreement.
