How to remove the encumbrance from housing purchased with maternity capital

What is an encumbrance and why remove it

In accordance with the norms of civil law, an encumbrance is considered to be the imposition of restrictions on the right to own property and the presence of certain obligations by the owner to third parties. After the conclusion of the transaction, the rights of ownership and disposal of the property are transferred to the buyer.

But if an encumbrance is placed on the object, the new owner cannot fully exercise his rights due to the fact that:

There are legal restrictions.
Third parties in relation to the object have rights obtained in accordance with the terms of the agreement.

That is, if there is an encumbrance, the owner of the living space has the right to live on it and dispose of it. But the pledge holder will not allow you to perform any legally significant actions.

There are cases when all rights of the owner (to use, possession and disposal) are limited.

After repaying the debt to the loan or the seller, the owner can remove the encumbrance and acquire all rights to the acquired property. To do this, you can use maternity capital funds. But it should be borne in mind that the Pension Fund of the Russian Federation will give permission to spend money if each family member of the owner of the certificate is allocated a share in residential real estate from which restrictions are lifted.

Removing the burden and allocating a share to the children.

After the encumbrance is removed and the mortgage in the apartment or house is paid off, shares must be allocated to the children within 6 months.
If maternity capital was used when purchasing or paying off a loan, the property must be divided among all family members.

This can be formalized using a deed of gift, when one of the parents or both allocates a portion of their share to minors.

If the children are not allocated a share, then the Pension Fund has the right to sue to declare the transaction invalid and return the maternity capital funds.

A mandatory requirement for state payments is to improve the living conditions of minors.

What needs to be done to remove the burden

If housing is purchased with an installment plan (which is inevitable when using maternal capital), then after the Pension Fund of Russia transfers the money to the seller and the parties make final payments, a joint application to the MFC or Rosreestr will be required. When using a mortgage loan, the presence of one buyer is sufficient. Today, most banks independently remove restrictions on residential real estate. You can track the process through your personal account on the official website of the credit institution.

After checking the documentation, the encumbrance is removed automatically. If the parties to the transaction applied to Rosreestr, the procedure will take no more than 3 days, when sending documents through the MFC - no more than 5 days. If the property is pledged to the bank, restrictions on its use are lifted within 30 days.

The new owner is notified of the removal of the encumbrance, after which he can apply to Rosreestr for a new extract from the Unified State Register of Real Estate. It will no longer contain information about restrictions on the use of property. To obtain an extract you will have to pay an amount of 300 rubles.

List of documents and application

If installment payments are used, then to remove restrictions on housing you will need to collect the following package of documentation:

Civil passport of the mortgagee who acts as the applicant.
Extract from the Unified State Register of Real Estate.
DCP (purchase and sale agreement).
A bank statement confirming the receipt of funds into the seller's account.

If it is necessary to remove a bank encumbrance from the living space, the following certificates will be required:

Passport.
Loan agreement.
Extract from the Unified State Register of Real Estate.
A certificate issued by a financial institution confirming repayment of the debt.
A discharged mortgage.

In both cases, the documentation is supported by a statement, which is drawn up in any form. There is no approved form. The application must contain information about the applicant, the mortgagor and the terms of the installment plan. It should be noted that the parties have no claims or unfulfilled obligations. If the living space is under encumbrance with the bank, then it is enough to indicate the details of the agreement with it.

Example of a free form application

If the seller refuses

If the seller refuses to remove restrictions from the sold object, then this can be done without him through the court. First, you will have to contact the Pension Fund for a payment order confirming the transfer of maternity capital funds to the seller. You will need to have a purchase and sale agreement, a civil passport and a transfer deed for housing with you.

Next, you can begin preparing documentation for the court and writing a claim. Documents at the location of housing are submitted to the district (city) court after paying a state fee in the amount of 300 rubles. The number of copies of each document must correspond to the number of parties participating in the case. An additional set of documents will be required for the court. The claim is supported by the following evidence:

Plaintiffs’ passports and children’s birth certificates (for children under 14 years of age).
Extract from the Unified State Register of Real Estate.
PrEP.
A payment order from the Pension Fund for the transfer of money to the seller.
A check for payment of the duty.

Svetlana Anokhina

Social lawyer

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Within 5 working days a decision will be made on whether to accept the claim for consideration. The parties will be notified by summons of the date of the preliminary hearing. The plaintiff will be required to attend all meetings and defend his interests. If a positive decision is made, you should wait until it is received and transfer a copy to the MFC or Rosreestr after it acquires legal significance. This will happen 30 days from the date of issue.

How to remove the restriction on housing after paying maternity capital?

As noted above, after the Pension Fund transfers maternity capital funds to the bank (to repay the mortgage debt), the owner can begin the procedure for removing the imposed restriction.

The general action plan will look like this:

First, the borrower needs to obtain a mortgage from the banking institution where the mortgage was issued.
Prepare the necessary package of documents, including an application in the established form.
Choose one of the convenient ways to contact Rosreestr (today there are several of them, more details about each are written below) and send all the collected papers there.
Wait until the completion of the mortgage registration repayment procedure.
If desired, the owner can immediately order a new extract from the Unified State Register of Real Estate, which will not contain a record of the existence of a restriction of property rights.

Where can this be done?

Attention. The government body whose powers include registration of various transactions carried out in relation to real estate is Rosreestr.

The more complete name of this department is as follows - Federal Service for State Registration, Cadastre and Cartography.

You can submit all the necessary documents in a variety of ways, the main ones include:

Personal visit to Rosreestr - having chosen this option, you must first clarify the address of the department in a specific region, and then make an appointment. The last action can be performed directly on the Rosreestr website in the “Offices and reception areas. Make an appointment in advance."
Contact the multifunctional center - in this case, you need to select the nearest branch of the MFC, make an appointment and prepare the necessary documents. It is worth noting that with this option there is no need to draw up an application for cancellation of the encumbrance in advance. An employee of this organization will help you do this right on the spot.
Using the Gosuslugi portal is not the most convenient option, since in fact the operation itself cannot be carried out on this service. It only contains a link to the official website of Rosreestr, where you can do this.

It should be borne in mind that you can send an online request to cancel the encumbrance on a mortgage issued for the purchase of an apartment with the participation of maternity capital only if you have an electronic digital signature.

What documents are needed?

The list of documents that will be useful for paying off the registration record for a mortgage is indicated in clause 1 of Article 25 of the Federal Law of the Russian Federation “On mortgage (mortgage of real estate)”. This list includes:

an application from the mortgagor or the owner of the mortgage (a joint request is also allowed);
a mortgage note containing a note on the fulfillment of all obligations;
the applicant’s passport (if through the MFC).

Reference. If the loan was issued without drawing up a mortgage, then a joint application of the borrower and the bank or only the lender will need to be submitted to Rosreestr.

Statement

The application for repayment of the mortgage registration record has a strictly established form. It was approved by Order of the Ministry of Economic Development of the Russian Federation dated April 25, 2018 No. 226 (Appendix No. 3). The same regulatory act sets out the basic requirements for its format (Appendix No. 5).

So, the content of such a statement includes the following sections:

introductory information - name of the Rosreestr branch, number of sheets and documents attached to the application, etc.;
characteristics of the property (type, cadastral number, address, etc.);
information about the mortgage registration record (date of entry, number, basis);
personal data of the applicant (full name, date and place of birth, passport details, etc.);
the method by which the application was sent to Rosreestr;
the desired option for receiving a response (in person, by mail, through the MFC or by courier);
the final part - includes a request to issue a receipt for receipt of papers, send a notification of acceptance of the application for consideration, a list of attached documents, a mark of consent to the processing of personal data, etc.

State duty

As you know, the services provided to the population by Rosreestr are provided on a paid basis. However, this rule does not apply to the repayment of the mortgage registration record.

Thus, in accordance with paragraph 6, paragraph 3, Article 333.35 of the Tax Code of the Russian Federation, the state duty is not paid in the case of registration, as well as repayment of the mortgage record.

Despite the fact that the service is free, the applicant may still incur certain expenses . We are talking about the subsequent ordering of a new extract from the Unified State Register of Real Estate. Its cost is (Appendix No. 1 to Order of the Ministry of Economic Development of the Russian Federation dated May 10, 2016 No. 291): 400 rubles (paper version) and 250 (electronic document).

Is it possible to withdraw by proxy?

Such an action is not prohibited by law.

If it is not possible to personally submit an application for cancellation of the encumbrance, the apartment owner must prepare a power of attorney and have it certified by a notary.

In the future, when submitting documents, the official will have to show his passport and a notarized power of attorney.

Deadlines

The legislation specifies the exact period during which the mortgage registration record is repaid. In accordance with clause 1 of Article 25 of the Federal Law of the Russian Federation “On mortgage (mortgage of real estate)”, Rosreestr employees must complete this procedure within three days from the date of receipt of the application and other documents.

Is it possible to sell an apartment without removing the encumbrance?

To sell a home that is under encumbrance, you will need the permission of the mortgagee. Without it, the transaction will not be possible. To obtain permission from the bank, the buyer will need to pay off the debt of the current owner. The latter, in turn, is entitled to the balance of funds under the monetary policy. And the obligation to repay the mortgage is shifted to the buyer. Banks make such concessions only if they are able to benefit from a change in borrowers. The burden in this situation is removed automatically.

To carry out such a transaction, you will first need to obtain permission from the guardianship authorities. They will give their consent if the parents are able to provide their children with housing that is not inferior in quality to the property being sold. Therefore, it is worth preparing in advance the documents for the residential property that you plan to purchase to replace the housing being sold.

Types of encumbrances on real estate

All types of encumbrances on real estate can be divided into three groups:

arising as a result of the contract, that is, at the will of the owner;
resulting from a court decision;
arising as a result of the issuance of an administrative act.

There are eight types of restrictions on real estate rights.

Pledge is a way of securing obligations under a contract, guaranteeing repayment of a loan or other obligations of the mortgagor. A common form of collateral is a mortgage. If it exists, the owner has the right to sell the apartment or house only with the permission of the mortgagee (bank). The second option is installments. Until the buyer pays off the debt to the seller, he cannot perform legally significant actions with the real estate.
Rent. Under an annuity contract, the recipient transfers ownership of the residential property, in return the payer periodically pays him a certain remuneration. To complete a transaction with a real estate property, the payer (owner) must obtain the consent of the recipient. When there is a change of owner, the responsibilities of the rent payer are transferred to the new owner of the property.
Lease is the transfer of real estate into the possession and use of a lessee, who in return pays the lessor a certain fee. A lease agreement for a period of more than 1 year must be registered with Rosreestr. An encumbrance when renting (tenant of residential premises) arises in the form of the right of use and ownership. When the owner completes a purchase and sale transaction, the tenant retains the right to reside in the dwelling.
The gratuitous use agreement (loan agreement) also establishes an encumbrance. When the owner changes, the borrower can use the home free of charge.
The right of trust management. Upon termination of the trust management contract, the opposing party is notified at least 90 days in advance.
Easement is the use of someone else’s real estate in land law. An easement can be personal or indefinite, urgent or indefinite, paid or free. When the owner changes, the easement right remains preserved.
Prohibition on performing registration actions with real estate. The ban may be imposed, for example, during a judicial investigation. The purpose of the ban is to ensure the safety of property.
Seizure of property is imposed by a court (bailiff) in order to preserve the property, confiscate it, or to ensure collection of the debtor’s property. When a property is seized, the owner cannot carry out registration actions with it.

There are also certain types of restrictions. But in order to use them, the owner must obtain permission from state (municipal) authorities to carry out registration actions with real estate.

Living in emergency housing or in houses of architectural or cultural value impose restrictions on the property. Emergency housing cannot be sold, but its owners have the right to receive free housing from the state. organs. If the owner intends to sell an object of cultural (architectural) heritage, he must obtain special permission from the state.
Owning a share in real estate does not limit the rights of the owner. But the owners of other shares have a pre-emptive right to purchase.
Burden of guardianship. If the owners of the home are minor children, then the purchase and sale transaction is permitted only with the permission of the guardianship authorities. The seller must prove that after the sale they will be allocated equal or greater shares in the new home.

Video on the topic

It is recommended to study this issue in more detail by watching the video. From it you can learn about all the intricacies of the procedure if the living space is pledged to the bank.

That is, maternal family capital can serve as a means of removing encumbrances from housing, but only if with its help it is possible to completely repay the debt for real estate to a credit institution. Only after this the new owner can dispose of the property at his own discretion.

Improving living conditions Allocation of shares to children after purchasing a home

Improving living conditionsIs it possible to buy a plot of land using maternal capital?

Features of encumbrance of an apartment.

A mortgage is a loan to purchase an apartment or house. Many Russian families use the services of a banking organization in order to improve their living conditions.

In this case, the apartment or house will be pledged until the entire debt is repaid.

The main disadvantages of this method of purchasing real estate include the fact that no actions can be taken with the property until the loan is repaid.

If the apartment is encumbered, maternity capital can be removed. But it is important to take into account the specifics of the payment. The subsidy from the state is targeted and can only be spent on certain purposes.

Among them, improvement in living conditions is noted.

In order for the Pension Fund not to refuse payment, shares in the property must be allocated for each family member.
Parents can independently determine their size, since they are not established by law.