Real estate transactions with the participation of a notary

In most cases, a notary is not needed for real estate transactions. The law defines only a few situations where you can’t go anywhere without his signature and seal. The notary’s tasks are to make the transaction safe and ensure legal purity. In what cases should you definitely contact a notary in order to avoid problems and not lose your rights to the purchased apartment, read the material.

Property in common shared ownership

For the seller: your share in the apartment or the entire home without certification of the transaction by a notary. The owners of the remaining shares must react somehow: refuse the priority purchase or agree to the sale. All shareholders must appear before the notary to sign the consent. The rule also applies to donations of shares. An exception is if all shares in the apartment are sold simultaneously through one purchase and sale agreement. In this case, a notary will not be needed.

For the buyer: Buyers who are married will have to deal with a notary. Spouses automatically become the owners of joint property by law. The purchase and sale document will partially have elements of a marriage contract, and it requires notarization.

1.2. Transactions requiring mandatory notarization

In accordance with paragraph 1 of Art. 162 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation), notarization of a transaction means checking the legality of the transaction, including whether each party has the right to carry it out, and is carried out by a notary or an official who has the right to perform such a notarial act, in the manner established legislation of the Russian Federation on notaries.

First of all, the notarial form of a transaction is mandatory in cases where the law contains a direct requirement for the transaction to be certified by a notary.

Thus, the legislation of the Russian Federation a mandatory notarial form in relation to the following types of transactions.

1) Rent agreement (Article 584 of the Civil Code of the Russian Federation).

2) Transactions on alienation or mortgage agreements of shares in the right of common ownership of real estate, with the exception of:

transactions in the case of alienation or mortgage by all participants in shared ownership of their shares under one transaction;
transactions related to property constituting a mutual investment fund or acquired for inclusion in a mutual investment fund;
transactions for the alienation of land shares;
transactions for the alienation and acquisition of shares in the right of common ownership of real estate when concluding an agreement providing for the transfer of ownership of residential premises in accordance with the Law of the Russian Federation of April 15, 1993 No. 4802-1 “On the status of the capital of the Russian Federation” (except in the case of death the owner of a residential premises, when an agreement providing for the transfer of ownership of a residential premises is concluded in notarial form in the interests of the heirs of the specified person by a trustee of the inherited property appointed by a notary);
agreements on the mortgage of shares in the right of common ownership of real estate, concluded with credit organizations (Article 42 of the Federal Law of July 13, 2015 No. 218-FZ “On State Registration of Real Estate”).

3) Transactions related to the disposal of real estate under guardianship conditions, as well as transactions for the alienation of real estate belonging to a minor citizen or a citizen recognized as having limited legal capacity (Article 54 of the Federal Law of July 13, 2015 No. 218-FZ “On State Registration real estate").

4) Agreement on pledge of a share or part of a share in the authorized capital of the company (Article 22 of the Federal Law of February 8, 1998 No. 14-FZ “On Limited Liability Companies”).

5) A pledge agreement to secure the fulfillment of obligations under the agreement, which must be notarized (Article 339 of the Civil Code of the Russian Federation).

6) Power of attorney for transactions requiring a notarial form, for filing applications for state registration of rights or transactions, as well as for disposing of rights registered in state registers (Article 185.1 of the Civil Code of the Russian Federation).

7) A power of attorney issued by way of substitution (Article 187 of the Civil Code of the Russian Federation).

Escrow agreement, with the exception of cases of depositing non-cash funds and (or) uncertificated securities (Article 926.1 of the Civil Code of the Russian Federation).

9) Assignment of claims and transfer of debt based on a transaction completed in notarial form (389 Civil Code of the Russian Federation, 391 Civil Code of the Russian Federation).

10) Will (Article 1124 of the Civil Code of the Russian Federation).

11) Inheritance agreement (Article 1140.1 of the Civil Code of the Russian Federation).

12) Marriage agreement (Article 41 of the Family Code of the Russian Federation).

13) Agreement on the payment of alimony (Article 100 of the Family Code of the Russian Federation).

14) Transactions aimed at alienating a share or part of a share in the authorized capital of a company (Article 21 of the Federal Law of February 8, 1998 No. 14-FZ “On Limited Liability Companies”).

15) Investment partnership agreement (Article 8 of the Federal Law of November 28, 2011 No. 335-FZ “On Investment Partnership”).

16) Agreement on the management of a business partnership (Article 6 of the Federal Law of December 3, 2011 No. 380-FZ “On Business Partnerships”).

17) Transactions aimed at alienating a share in the joint capital of a business partnership, including those providing for an obligation to complete a transaction aimed at alienating a share in the share capital of a business partnership if certain circumstances arise or the other party fulfills a counter obligation (Article 12 of the Federal Law of December 3 2011 No. 380-FZ “On Business Partnerships”).

In addition to the direct indication in the law, the condition for mandatory notarization of a transaction may be provided for by agreement of the parties , at least by law this form was not required for transactions of this type. In such cases, counterparties often voluntarily choose the notarial form of the transaction, fearing subsequent challenges to the fact of the transaction or the emergence of disputes about its content and anticipating that risks of this kind are higher than the size of the notary fee and the time costs associated with contacting a notary.

If notarization of a transaction in accordance with the law or agreement of the parties is mandatory, failure to comply with the notarial form of the transaction entails its nullity .
checking the legality of the transaction, including whether each party has the right to complete it. Carried out by a notary or an official who has the right to perform such a notarial act, in the manner determined by the Fundamentals of the legislation of the Russian Federation on notaries and civil legislation. a legally significant action performed by a notary or an authorized official in accordance with the Fundamentals of the legislation of the Russian Federation on notaries. an agreement between two or more persons on the establishment, modification or termination of civil rights and obligations. land plots, subsoil plots and everything that is firmly connected to the land, that is, objects the movement of which is impossible without disproportionate damage to their purpose, including buildings, structures, objects of unfinished construction, as well as parts of buildings intended to accommodate vehicles (car spaces). Immovable property also includes aircraft, sea vessels and inland navigation vessels subject to state registration. certain actions (or inaction) as a result of which the owner of the property changes. With the transfer of ownership, the new owner has legal grounds for ownership, disposal and use of property. As a rule, the basis for transfer of ownership is the completion of a transaction. a written authority granted by one person to another person to enter into a transaction with a third party, notarized in accordance with current legislation, a written order of the owner of the property as to whose ownership the property (part of the property) should be transferred after his death. This is an agreement of persons entering into marriage, or an agreement of spouses, defining the property rights and obligations of spouses in marriage and (or) in the event of its dissolution. The marriage contract is concluded in writing and is subject to notarization. a legal situation due to which one person (debtor) is obliged to perform a certain action in favor of another person (creditor) (for example, transfer property, perform work, provide a service, contribute to a joint activity, pay money, etc.), or refrain from a certain action, and the creditor has the right to demand that the debtor fulfill his obligation.

The owner of the share or apartment is a minor

A trip to the notary is inevitable if the entire apartment or part of it belongs to a child . And it doesn’t matter whether these square meters were given to him as a gift, inherited, or whether he received a share in the purchase of housing using maternal capital. The notary is obliged to check whether the rights of the child will be respected during the sale. And at the same time, the law requires that the seller also obtain permission from the guardianship and trusteeship authorities.

The purchase and sale of housing takes place by proxy

It happens that the seller or buyer cannot personally participate in the purchase and sale of square meters. Then a power of attorney is issued for someone from the circle of acquaintances. And this document must have a notarized form. Without a notary's certificate, registration of real estate transactions by power of attorney is prohibited - Rosreestr will not accept the package of documents.

Sometimes notaries calculate the tariff from the cadastral value

Sometimes owners sell an apartment at a price below its cadastral value. There is no law prohibiting this. If they are required to have a notarial agreement during a transaction, some notaries require that they pay a fee based on the cadastral value, because it is higher. Here you first need to calculate everything correctly.

In paragraph 5 of Art. 333.25 of the Tax Code of the Russian Federation states that it is not the notary, but the participants in the transaction who have the right to choose what value to indicate in the contract - market or cadastral. There is only one problem - participants will have to provide certificates for each cost. The notary will find out the cadastral value himself, but the parties to the transaction must document the market value. To do this, they will have to order an assessment from a specialized company with a license - clause 8 of Art. 333.25 Tax Code of the Russian Federation. Prices are different everywhere - from 2,000 rubles.

It is important to understand whether it makes sense to spend money on an appraisal or whether it is easier to pay a notary from the cadastral value. For example, the parties agreed on a price of 2 million rubles for an apartment, and its cadastral value is 3 million rubles. The notary insists on the tariff from the cadastral, i.e. 0.5% * 3 million = 15,000 rubles. The parties found a company that would give them an appraisal for 2,000 rubles, where the property was valued at 2.1 million rubles. Based on the estimate, it turned out to be 0.5% * 2.1 million = 10,500 rubles + 2,000 rubles per document. As a result, the parties saved 2,500 rubles on notary services.

The apartment is sold or transferred under a rental agreement

A rental agreement is an agreement in which the owner gives away a home for a small lump sum, monthly payments, a lifetime dependency, or simply care for himself. Older people usually take this step. They sign an agreement that the apartment will go to whoever pays them money or takes care of them after their death. Previously, you won’t be able to take your home; a burden will be placed on it.

The rent agreement is registered with a notary. Moreover, the owner of the apartment must appear at the notary office himself to confirm that he is voluntarily ready to sign the papers.

Notarization of the agreement when registering an assignment of rights or pledge

The following types of contracts must be notarized.

A pledge agreement when registering a pledge to secure an agreement, which is subject to mandatory certification by a notary in accordance with clause 3 of Article 339 of the Civil Code of the Russian Federation and clause 44 of the resolution of the Plenum of the Armed Forces of the Russian Federation of July 1, 1995 and the Supreme Arbitration Court of the Russian Federation No. 6/8.
A collateral agreement is where the parties to the transaction intend to provide for the possibility of foreclosure on the subject of the collateral based on a notary’s execution signature without going to court (Clause 3 of Article 349 of the Civil Code of the Russian Federation).
Assignment agreement with notarization of the main agreement (Clause 1, Article 389 of the Civil Code of the Russian Federation).
Agreement for transfer of debt with notarization of the original agreement (clause 4 of Article 391 of the Civil Code of the Russian Federation).
Preliminary agreement - certified in cases where the main agreement is subject to mandatory certification by a notary (clause 2 of Article 429 of the Civil Code of the Russian Federation).
An agreement to change the terms of the contract or terminate it, if at the conclusion of the transaction it was certified by a notary (clause 1 of Article 452 of the Civil Code of the Russian Federation). If shares in the authorized capital of an LLC are provided as compensation, then the compensation agreement must also be certified by a notary in accordance with clause 2 of Article 163 of the Civil Code of the Russian Federation and clause 1 of Article 21 of Law No. 14-FZ, clause 8 of Resolution of the Plenum of the Armed Forces of the Russian Federation No. 6 of June 11, 2021

Mortgage funds are involved in the transaction

A notary is required for investigations involving a mortgage only if shared ownership is involved. This can happen in several cases:

You have decided to refinance your mortgage loan , and for this you need to draw up a separate mortgage agreement. It will have to be endorsed by a notary if the apartment is shared ownership (for example, divided between family members).
You want to take out a mortgage loan, but they require collateral. You can mortgage your existing housing. And if this home has several owners, then the mortgage agreement is sent to a notary.
You are going to buy out the last share in your apartment and become its sole owner. There is no free money, you will have to take out a mortgage. In this case, the entire apartment will need to be pledged. The subject of the purchase and sale is a share, therefore the mortgage agreement requires notarization.

When do real estate transactions need to be certified?

According to clause 3 of Article 8.1 of the Civil Code of the Russian Federation, the services of a notary may be required when a right arises, changes or terminates. For example, if an organization does not register the right to pledge real estate, then judges may not satisfy the stated requirements at the expense of the pledged property (Clause 1 of Article 10 of Law No. 102-FZ, resolution of the AS SZZ in case No. A45-3985/2018 of May 27, 2021 .). From December 29, 2021, you can contact a notary remotely.

A transaction must be certified by a notary in the following cases:

upon alienation of a share in the right of common ownership of real estate. For example, sale, donation, exchange, etc.;
if the transaction concerns real estate held under the terms of guardianship;
if we are talking about an agreement on the alienation of real estate belonging to a minor or a citizen with limited legal capacity (Part 2 of Article 54 of Law No. 218-FZ).

To certify a transaction with a notary means to check its legality and the existence of the right of each party to conclude it (ruling of the 1st Cassation Court of the OJ No. 88a-1138/2019 in case No. 2a-648/2019 of December 9, 2021).