Housing exchange between relatives: how to spend less?

Find out on our website how to exchange a room in a communal apartment or dorm, a two-room and a three-room apartment, whether it is possible to exchange a mortgaged living space or an old apartment for a new building, as well as how to make a long-distance exchange and a forced exchange of living space through the court.

Legislative regulations

Are there special conditions stipulated in the law in the case of related exchange of apartments?

The legislation covers in detail the issues of barter in any interpretation.

Article 567 of the Civil Code talks about what this agreement is, and the following articles, numbered after it, reveal individual nuances of the exchange and its foundations.

One way or another, the material of the Civil Code is very well compiled and answers all the basic questions that citizens may have in the process of drawing up an agreement. And yet, these articles are about everything except the subject composition.

Barter is a two-way transaction, which means that the parties can be both relatives and complete strangers to each other. The articles of the Civil Code do not mention that this transaction has any privileges if it is carried out between two related persons.

This means that regardless of who you are to your opponent under the contract, you will be subject to the same terms of the contract.

You can also become familiar with the issues of barter between related persons by referring to the judicial practice of the court closest to you.

You will not find new norms or references to the act in the court decisions, but you will once again make sure that the subject composition of the transaction does not in any way affect its conclusion and completion.

You can learn about how to exchange a room in an apartment for a house and a plot of land, how to exchange a private house or cottage for an apartment with an additional payment, as well as how to draw up an agreement to exchange an apartment for a house with a plot of land from our articles.

Conditions under which exchange is possible

For the exchange to take place safely, the following conditions must be met:

• each of the participants is aware of the actions being performed, is adequate, conscious and responsible for their actions;
• the transaction is made voluntarily, without pressure, threats or secret agreements;
• the living space is not encumbered, no registration ban has been imposed on it;
• the market or cadastral value of all objects involved in the transaction is known.

Methods

Now it’s worth talking about options for related barter of housing in property.

The first and simplest method follows from the title of our article. It consists of drawing up an exchange agreement.

The essence of the transaction is that the parties exchange real estate , that is, they are simultaneously sellers, alienators and acquirers.

Of course, the transaction can be either equivalent or not - this is decided by each owner in agreement with the other on an individual basis. The contract may include a condition for additional payment on both sides.

This transaction can be immediately submitted (with the appropriate submission of documents and agreement) to Rosreestr or certified in advance by a notary. This agreement is certainly subject to tax at the rate of 13 percent .

The second way to exchange living space with relatives is to draw up a sales contract . Basically, this method is used by those who are not interested in keeping the maximum amount of money from the transaction for themselves, as well as those who do not trust the exchange procedure.

Since both parties are both alienators and acquirers, two sales contracts are drawn up. Each of them is subject to notarization, but only if opponents do not want to be deceived. Afterwards the transaction is formalized in Rosreestr.

This method of bartering is the most expensive. The fact is that this method involves paying a tax of 13 percent of the agreement amount twice - for each drawn up and certified agreement.

Now let's talk about the least expensive method of related barter apartment for apartment. Now we are talking about giving. The fact is that gifts are taxable, but only if they do not occur between close relatives.

So, if a person is in a close family relationship, then it is much more profitable, from a financial point of view, to draw up two gift agreements and receive ownership of new property to replace the alienated one.

True, there is one minus. If the exchange involves an additional payment, then this cannot be stipulated in the gift agreement.

You will have to be content only with the fact that you have exchanged living spaces, but the additional payment of funds will not be regulated by law.

Tax consequences of related apartment exchanges

According to the norms of the Tax Code of the Russian Federation, taxes are required to be paid by persons receiving property or monetary benefits in civil transactions, i.e.
income. The tax is calculated independently at a rate of 13% by filing a 3-NDFL declaration. The benefit in this case is the amount of additional payment under the exchange agreement, the difference in the cost of objects during the sale and purchase. There is no need to pay tax on the alienation of real estate if it has been owned for more than five years. If relative sellers or exchange participants own apartments for less than the specified period, they can take advantage of tax deductions.

also exempt from paying personal income tax if they have owned the property for at least three years . This rule is specified in Article 217 of the Tax Code of the Russian Federation and is an additional advantage of related exchange through donation.

Where to begin?

First you need to prepare for barter. First of all, agree on a deal with your opponent, discuss its details, and inspect the premises. After this, carry out preparatory work with housing.

Namely, you must write out everyone registered so as not to burden the housing and the new owner with problems, and pay utility bills if there are debts . In addition, it is necessary to prepare all technical documentation for the apartment.

If the property has other owners besides you, they should not be against the transaction (read about exchanging a share of living space). That is, they must sign an alienation agreement or go to court to divide the property.

Notary, USRN, tax office

When choosing any of the options, the transfer of shared ownership is formalized through a notary office. Additional authentication of documents and confirmation of the legal capacity of the participants will prevent unnecessary problems during the consideration of the legality of the transaction in court.

After signing the certified agreement, they begin to register new rights independently (through the regional MFC), or entrust the procedure to a notary. Rosreestr will not complete the registration procedure if errors are found when registering the exchange of shares between relatives. Refusal will be received if there are prohibitions and encumbrances. To ensure that there are no limiting factors, you can receive a detailed certificate upon a standard request. Only after creating a new entry in the Unified State Register of Real Estate database, a real estate transaction is considered fully completed.

Tax on income received during the transaction is paid if relatives wish to exchange shares in apartments even with a slight difference in value. This obligation is absent if the property has been owned for less than three (five) years with registration of ownership rights before (after) 01/01/2016, respectively. The completed declaration in standard form is submitted no later than April 30. next spring after one year of completion of this operation. Tax payments can be made until July 15 inclusive.

For your information! When submitting documents for state registration to the Unified State Register of Taxes, a check is carried out to ensure that there are no tax arrears. The obligations noted above should be fulfilled before the deadlines expire so as not to delay the full completion of the transaction.

Where to go?

When all the work has been completed, you can begin to formalize the apartment barter transaction between relatives. First, you need to estimate the total cost of your home and your opponent’s home. If the prices are reasonable, you can proceed to drawing up a contract, but if not, it’s worth talking about additional payment.

After this, you either draw up a contract yourself, without notarization, or contact a notary office .

There the document is checked, assigned a number and entered into Rosreestr.

If one of the parties fails to fulfill its obligations, this agreement will be good evidence in court.

Gift deed

Two documents are notarized. In this case, there is no tax base and corresponding obligations to the state. Calculations are made during the exchange of shares according to a scheme convenient for relatives. Registration is completed according to the standard procedure by registering with Rosreestr.

You can download the deed of gift here.

What documents are required?

In order to carry out a related exchange of living space, you must provide the following types of papers :

• certificate of ownership of the apartment;
• agreement from other owners on alienation;
• technical documentation for housing;
• certificate from the BTI;
• extract from the house register;
• cadastral passport of living space;
• tax payment receipt;
• certified or uncertified contract.

All these documents are collected in one package and submitted to Rosreestr, where they are reviewed by employees. If everything triples, then the fact of the exchange will be formalized.

Risks

With related exchange, the risks are noticeably reduced, since it can be assumed that relatives are unlikely to deceive each other. However, in life there are different relatives and different situations, and therefore you need to know the weak links of the exchange transaction.

Market specialists believe that during an exchange the risks are much greater than, for example, during a purchase and sale transaction. This is due to the fact that the exchange is carried out in several stages.

At the same time, the cause of loss of time and money can be either fraud or a frivolous approach to the preparation and execution of documents.

For a successful exchange, it is desirable to fulfill the following conditions of the transaction:

• integrity of partners;
• simultaneous sale and purchase of apartments;
• lack of apartments purchased with a mortgage or using maternity capital;
• absence of minor owners;
• absence of incapacitated owners, as well as owners who are alcoholics and drug addicts.

Terms and cost of registration

The registration period is regulated by law, but according to general rules it ranges from 3 to ten days . The deadline may be extended by failure to submit certain documents, as well as complications in the form of sending requests to other regions.

In accordance with the Tax Code, this transaction is subject to 13 percent deductions in favor of the state of the total amount.

But if you decide to make an exchange through a gift, then you can certainly count on the fact that the transaction will be free due to the fact that it is carried out between relatives.

Exchange of shares by inheritance

If there is no will, the heirs have the right to distribute the inheritance among themselves. By agreement between them, in the presence of a notary, shares can be exchanged.

For example, the testator owns an apartment, a country house and a car. Of the heirs, there are only two sons, who should receive ½ for each type of real estate. But the brothers made an agreement among themselves that the car and the country house would immediately become the property of one brother, the apartment - the other. The notary will prepare a certificate for each heir taking into account their agreement.

Moreover, if the market value of the distributed property is not the same, no one pays the difference to anyone.

If there is a will, it will not be possible to distribute the property by agreement. The notary will enter the relatives into the inheritance exclusively in the manner specified in the will, fulfilling the will of the testator. Then the heirs can re-register rights to the real estate through an exchange transaction.

Obtaining consent of co-owners

Any transaction needs careful preparation to prevent the possibility of it being declared invalid. Related exchange of shares is no exception. If the type of purchase and sale or exchange is chosen, the law requires written consent to complete the transaction given by the owners of the remaining shares of the apartment. The document must be certified by a notary.

The written consent form contains detailed conditions for the sale (or exchange) of shares. The response from the co-owners, according to the letter of the law, should be expected within one month. After this period, you can make a transaction. Naturally, the transaction is completed upon receipt of written consent from the other owners of the apartment.

Attention!

When making a gift between relatives, the law allows you not to contact co-owners for consent - you can immediately complete the transaction.

We must not forget about the role of the guardianship authorities: if one of the parties to the transaction is a minor, then these authorities will definitely be vigilant. Without their consent, it will not be possible to use maternity capital or change the child’s share to a smaller one.

Donation agreement

A gift agreement, or deed of gift (Article 572 of the Civil Code of the Russian Federation) is a transaction option that allows you to quickly register an apartment as a gift to a relative, as well as reduce the cost of all types of exchange, saving on personal income tax: when registering a deed of gift, close relatives are exempt from paying tax.

The exchange involves the signing of two deeds of gift, for one and the other living space. Under a gift agreement, only the owner has the right to alienate real estate . When one of the dwellings or both are social, then first you need to privatize the apartments, and only then donate them.

The donation procedure requires a minimum of time, since immediately after drawing up the agreement, rights can be re-registered. Notarization of the document is not required, but is recommended. You can draw up a deed of gift in simple written form, the main thing is that you have the following data:

• Donor's full name, year of birth, passport details;
• exact address of the donated item, main characteristics - number of rooms, footage, etc.;
• Full name of the donee, year of birth;
• relation degree;
• date of compilation, signature.

Free transfer of housing to a relative through donation is the most acceptable option to provide housing for a loved one. This option will not work only in the case where the donor is declared incompetent by the court.

Other Important Aspects

If the co-owners of the property are minors, you need to very carefully prepare the related exchange transaction . Everything related to the rights of minors is supervised by the guardianship authorities. There you will need to receive a document confirming their consent to the exchange. Trustee bodies control the equivalence of the exchanged shares of property so that the interests of the child are not infringed in any way.

In modern legal practice, all of the above-described options for related exchange of shares in housing are encountered.
Such an exchange is carried out according to standard rules; no preferential treatment is provided for related persons. If a transaction results in a profit for one party or another, it becomes necessary to pay income tax. Share:

Reasons and grounds for refusal

Refusal may occur for one of the following reasons:

• the exchange agreement was drawn up illiterately and incorrectly;
• the title documents for one of the objects are invalid;
• one of the parties was misled about the exchange housing, which could influence the relative’s decision;
• the spouse of one of the parties objects to the exchange of jointly acquired living space;
• the participant in the transaction concealed his incapacity, etc.

A refusal may also follow if, upon inspection, it turns out that the home is encumbered - for example, one of the family members serving time in prison is registered there , etc.
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Exchange cost

To register real estate in the name of the new owner, you will have to pay a fee equal to 2 thousand rubles. Additionally, the amount includes the cost of notary and appraiser services.

It is possible to carry out the process without the involvement of different specialists. In this case, the relatives independently decide on what conditions the exchange will take place.

When a deal is rejected by the local administration

The procedure for exchanging municipal housing is carried out only if there is consent to this process from the municipality. Refusal may be due to the following reasons:

• The court is considering a case on the basis of which a social rent agreement with one of the parties to the transaction is terminated.
• The premises specified in the agreement are unsuitable for habitation.
• The building where the apartment is located is scheduled to undergo major renovations in the near future.
• The building is subject to demolition.
• The right of residents to use specific real estate is disputed.
• One of the participants has a chronic disease.

Under such conditions, the exchange will be refused.

Sample

This type of agreement is drawn up between the parties who agree to transfer ownership of one residential property to another . The exchange agreement is drawn up in simple written form and must be registered, after which the apartment changes owner and becomes the property of the other party.

The contract must indicate:

• name of the locality, date of compilation (in words);
• details of participants’ passports, full names;
• specifically describe the items of exchange so that they can be identified - addresses, number of storeys of buildings, on which floor the apartments are located, number of rooms, common and living areas;
• number and name of the document certifying the ownership of each party;
• the cost of housing in numbers and words; in case of additional payment, write this amount.

Each party is required to assure the related exchange partner that there are no encumbrances . It is also important to note that this document is subject to mandatory registration. At the end of the agreement, the parties put a personal signature.

It is necessary to mention the citizenship of each of the representatives of the parties: this is important for calculating tax.

Reasons for sharing

A related apartment-to-apartment exchange may be required to achieve different goals. These include:

• Territorial preferences (families want to change their area of ​​residence).
• One family wants to move to the city, while the other prefers solitude in a village or urban-type settlement.
• The need to receive a certain amount of money by one participant in the transaction, if the results of the exchange involve the use of an additional payment.
• The family moves to another city, which leads to intercity exchange.
• Resolving disagreements related to the cohabitation of citizens. Often this procedure is carried out forcibly, so a trial is carried out first.

The specific method of exchange depends on the existing reasons, and also takes into account whether the property is privatized or municipal. When exchanging apartments between relatives, it is required to register the right of each participant to the received object.

If the property is municipal, then the exchange procedure is complicated, since the consent of local authorities will have to be obtained for its sale.