Land exchange agreement: taxes, parties, registration. Conclusion of an agreement

Specifics of the exchange agreement

The main difference from a purchase and sale agreement is that for the transferred property the parties do not receive the amount of money established in the agreement, but a land plot that has similar characteristics, properties and price. Both parties simultaneously act as both sellers and buyers.

Therefore, the areas they exchange should be approximately the same. But in reality, it often happens that one area is inferior to another in some properties. In such a case, the parties have the right to establish the required payment for the difference in value, the amount of which is specified in the terms of the exchange agreement.

Exchange differs from a gift agreement in that the nature of the transaction is for compensation, and not carried out unilaterally as a transfer of land as a gift. If an agreement for the exchange of land plots is concluded, each party receives either similar property, or partial compensation if one plot is ceded to another.

Land exchange legislation

According to the Civil Code of the Russian Federation (Article 130), a land plot is real estate. And from this it follows that exchange transactions are carried out using general civil law rules governing actions carried out with real estate, including the exchange of property. And they are coordinated by the provisions of the Land (LK) and Civil (CC) codes of the Russian Federation. There is also the corresponding Presidential Decree No. 1767 of October 27, 1993, which legalized:

the right of any legal entity or individual who owns a plot of land to exchange it in whole or in part, and the objects of exchange may be of unequal value;
mandatory transfer of ownership rights after the transaction has taken place and has been registered.

The legislator established that each of the parties to such an agreement is recognized as the seller of their land plot, and by accepting another plot in the exchange process, they simultaneously become buyers. But, first of all, they must be the owners of the lands subject to change.

Such transactions are in many ways similar to the rules of a purchase and sale transaction, but they also have some subtleties in their legal regulation that distinguish one from the other. The exchange agreement may also contain instructions on the price of plots or the distribution of expenses between the parties, or it may not have them. And then the landholdings that are subject to exchange are recognized by law as equivalent, and the party that fulfills its terms under the agreement will bear the corresponding expenses.

Transaction forms

In relation to the exchange of plots in the Russian Federation, the following forms of transaction are accepted:

a simple form in writing, when the parties to the agreement must only certify it with signatures and then submit it to the Rosreestr authorities for state registration;
a notarial form, in which certification of this agreement is not required, but in many cases it is still prescribed by a regulatory act.

When is notarization required?

Notarization is required in the following cases:

For transactions related to land owned by a minor or a citizen who is recognized as having limited legal capacity.
In the case of an exchange in the presence of common shared ownership of a land plot (including those cases when all parties dispose of their shares in one transaction).

No matter through what form the transaction is made, the exchange agreement (a sample will be presented below) must be registered by government authorities. If this requirement is not met, the document is considered invalid.

Regulations

When concluding an agreement for the exchange of land plots, both parties must remember the regulatory norms from a legal point of view, which distinguish an agreement of this type from a purchase and sale agreement for the same plots. For example, if the agreement does not contain precise terms on the price of the land being exchanged or data on the distribution of expenses of both parties, it is necessary to remember the underlying assumption of the agreement about the exchange of equal plots.

If, in order to fulfill an agreement for the exchange of land plots, expenses are required for the transfer of plots to the other party or other actions that are aimed at fulfilling the agreement, then they must be carried out by the party that must do this in accordance with the prescribed obligations.

Procedure for compensation in case of unequal exchange

Initially, the agreement assumes the equivalence of the land plots. That is why possible future disputes between participants about the value of the transferred property are very limited. If the subject of the contract is an exchange of unequal plots, the party that transfers the plot that has a lower price receives another obligation to pay the difference in their value.

Such payment must be made before or immediately after the plot of lower value has been transferred to the counterparty. At the same time, the exchange agreement may establish a different procedure for compensating the existing difference in prices. Therefore, it is quite natural that all the necessary requirements and the form of compensation paid must be reflected in the text itself when concluding the contract.

Exchange rules

Land that is owned by a citizen or legal entity can always become the object of a compensated transaction. Moreover, both codes of the Russian Federation (Civil Code and Land Code) provide the opportunity to commit such an act free of charge. Those who do not use the plot all the time, such as tenants, do not have such opportunities.

And the fact that a plot of land is classified by the legislator as property objects forces its owner to undergo the registration procedure at the Rosreestr branch.

The exchange itself is characterized by the following key features:

the participants in such a transaction mutually transfer from one to the other the ownership rights to the objects they exchange;
It is not at all necessary to exchange the allotment for a similar property asset; it is allowed to display residential (apartment or house) or non-residential premises, any transport, etc. as an exchange item;
An important condition of the contract is the requirement to pay monetary compensation from the party to the agreement whose property turned out to be cheaper in value.

The land plot becomes the subject of an exchange agreement, regardless of its purpose. Any residential or non-residential buildings can be built on it, and it can have an agricultural purpose.

Agricultural lands are territories located outside populated areas.

The new owner does not have the right, without special permission from the local authority, to change the legal regime of land use, which is indicated in the title document.

Non-simultaneous exchange

The exchange of land plots does not have to be carried out simultaneously. There are also cases when the agreement sets different dates for the transfer of the exchanged plots. First, one party to the contract fulfills its obligations, and then the other. If, according to the certified exchange agreement, the terms of transfer to each other do not coincide, then it is necessary to apply the rules established by law on the reciprocal fulfillment of one’s obligations, which are enshrined in Article 328 of the Civil Code of the Russian Federation.

From its contents it follows that if the counterparty fails to fulfill a due contractual obligation, the other counterparty has the right to immediately suspend further fulfillment of its own obligations, which are specified in the agreement (a sample exchange agreement can also be seen in this article), or in principle refuse to comply with it. He may also demand compensation from the other party for losses due to his violations.

The moment when the ownership of the plots of land to be exchanged directly passes to its participant is determined in Article 570 of the Civil Code of the Russian Federation. It states that ownership of land plots acquired through exchange is transferred simultaneously to each of the parties if all obligations established by the contract have previously been fulfilled.

In addition, it is necessary to note the specifics of the exchange agreement, which relates to responsibility for the seizure of property, that is, the land received under the exchange agreement. In the case of sale and purchase, the seller assumes the obligation to transfer to the buyer such goods that are free from the assertion of rights to it by third parties. There is only one exception to the requirements established by law, when the buyer himself agrees to accept the goods, which are burdened with the rights of third parties. A similar provision of legislation in the civil sphere applies to an exchange agreement. If one of the parties fails to fulfill this obligation, the culprit not only compensates the counterparty for the losses incurred by him, but also returns to the bona fide participant the plot of land received through the exchange. On what terms is the contract concluded?

Land exchange procedure

Two main requirements are imposed by the Civil Code of the Russian Federation on the form of such an agreement:

it must be written;
it should be registered with Rosreestr.

When only a certain share is subject to exchange, it is not enough to notify all other owners. One more condition must be met - such a document must be certified by a notary. Without this, the contract registration procedure becomes impossible.

Algorithm of actions

The execution of a bilateral agreement must be preceded by the parties agreeing on the terms of the future transaction. And the document itself must contain:

information about each participant in the transaction (for individuals this is passport data, for legal entities - details;
subject of the transaction - information about the plot of land and the object for which it is being exchanged;
information about documents confirming the ownership rights of each party to its object of exchange;
cost parameters of objects;
the amount of additional payments, as well as the procedure for their reimbursement, if such is a condition of the agreement;
scheme for the transfer of property and subsequent registration of rights to it by new owners;
conditions associated with restrictions and encumbrances.

As a rule, the agreement is accompanied by site plans, estimates of the value of the plots themselves and buildings located on their territories, and, if necessary, copies of lease agreements and collateral.

It may turn out that it is impossible to complete a transaction if the person in whose favor the encumbrance was registered did not give his consent. Such a person may be a bank in which a loan was taken from the landowner secured by property, which was not repaid at the time of the exchange.

In addition, the order in which rights to objects are transferred under a transaction from one owner to another can vary quite significantly. If the land allotment changes to:

other real estate – objects are registered simultaneously;
motor vehicle - registered with the traffic police;
movable property - rights to it are transferred after both parties sign the transfer and acceptance certificate, but registration actions are carried out only in relation to land.

But when not the entire plot is subject to exchange, but only a small part of it, the owner must take care in advance to:

receive a land survey plan;
notify the remaining owners about the conclusion of the agreement, and that they can exercise the pre-emptive right and buy out this share;
wait for a response for a month.

Agreement conditions

The main terms of the exchange agreement, which must be agreed upon by both parties, are:

establishing the subject of the agreement, that is, the areas transferred by both parties;
identification of quantitative characteristics of contractual property;
determining the equivalence of the value and properties of the plots or indicating appropriate compensation to achieve equivalence.

The essential terms of the transaction are agreed upon directly at the preparatory stage and are based on various title documents for land plots (for example, cadastral passports, reports on market value, etc.).

How to correctly draw up a contract for the exchange of land for an apartment? More on this later.

Documents for registration of exchange

If you are the owner of an apartment that you want to exchange, you need to prepare documents for further processing of the transaction, that is, you must prepare the apartment for transfer to another person. First, you need to pay all outstanding utility debts. Check out all residents from your apartment.

The exchange transaction is drawn up in the notary chamber, where you will certify the agreement, and then contact Rosreestr. But you can do without visiting a notary’s office. The owners of real estate, each party, must have in their hands all the title and technical documents for the apartment and land plot, and, if necessary, a written agreement from other owners, if any. All documents must be prepared and submitted to Rosreestr in your city.

The process of registering ownership takes up to 10 days. The tax amount on the transaction amount in favor of the state will be 13%.

There are situations when a transaction is refused. The refusal may be due to the fact that you did not prepare or bring any document, or if one of the owners of the apartment or land plot is against such a transaction.

There are also situations when the documents provided to Rosreestr are invalid.

Both parties need to pay attention to the fact that if there is an additional payment, this must be indicated in the contract. If there is an additional payment in fact, but you did not reflect this condition in the contract, then in the future you will not be able to file a claim with the other party for non-payment.

The land plot or dacha that the owner wants to exchange must be privatized in the name of the owner, this will make it possible to carry out the transaction. If you are the owner of an apartment and will be making an exchange for a land plot, then it is better for you to check the land plot or house in advance for the presence of a cadastral number. The cadastral number can be checked in Rosreestr.

Both parties need to check whether there are any disabled people or minor children registered in the property. Since in the future it will be very difficult for you to sign them out of the house. If the property has other owners, and they do not know about the transaction, then in the future they can go to court to declare the exchange transaction invalid. This won't do any good for you.

If there was an additional payment from your side to the other party to the transaction, and you did not indicate these conditions in the contract, then this additional payment may not be given to you.

It is important to approach the transaction of exchanging an apartment for a land plot or dacha very seriously and responsibly, since different types of real estate are involved in it.

And if you show care and responsibility, the transaction is guaranteed to go through correctly and in the best possible way.

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How is the contract drawn up?

In accordance with Article 550 of the Civil Code of the Russian Federation, an agreement for the sale of real estate must be drawn up in writing. The land exchange agreement is also subject to exclusively written conclusion. If the legal requirements for the form are not met, the agreement is automatically considered invalid. An agreement of this kind obliges state registration of new owners and their rights in the branch of Rosreestr that is located on the site of the land being exchanged.

Signs that personalize objects of exchange

The contract must necessarily describe the features that personalize the areas to be exchanged:

area of alienated land plots;
their cadastral numbers;
the purpose for which they are used;
real estate objects indicating their ownership, which are located on these sites.

Registration of a land exchange agreement is a responsible matter.

Also, drawings of the areas that are the subject of the agreement must be attached to the exchange agreement. The parties need to evaluate the relevant plots at cadastral value. In addition, it is necessary to evaluate various types of structures and real estate objects that are located on this land. The assessment is completed using acts determining the cadastral value and summary statements of assessment of structures. These documents are attached to the exchange agreement.

When registering it, the parties must provide their counterparties with the following information:

about the presence or absence of land conflicts and disputes regarding the plots to be exchanged, as well as their legal nature;
on the availability of existing easements;
whether the plot to be exchanged is leased to a third party;
on the transfer of this land as collateral.

The boundaries of the territory to which third parties have rights and the content of these rights must be indicated on the graphic plan of the relevant areas. The agreement specifies restrictions on proprietary rights that are associated with the technological, sanitary, protective and other zones established on this land, as well as with the classification of the lands of the site or part of it as those that have environmental, recreational or cultural-historical purposes.

According to federal law, registration is considered to be the performance of a certain legal action by bodies having the appropriate powers. Thus, ownership of a land plot arises simultaneously with the registration of the rights of one or another party in relation to it. The procedure for drawing up and registering an agreement for the exchange of a land plot under land law is completed at the moment when the information is entered into the unified legal register and the documents are issued to the applicants.

Scientific supervisor: Doctor of Law, Professor, Honored Scientist of the Russian Federation Ivan Ferisanovich Pankratov Russian legislation classifies a land plot as real estate (Article 130 of the Civil Code of the Russian Federation). Therefore, general civil law rules governing the exchange of property are applicable to the exchange of land plots. Such norms are contained, in particular, in Art. 567-571 Civil Code of the Russian Federation. With regard to the execution of an agreement for the exchange of land plots, the general rules on transactions provided for in Chapter 9 of the Civil Code of the Russian Federation with the above articles; norms on registration of real estate transactions established by the Federal Law of the Russian Federation “On state registration of rights to real estate and transactions with it” [1], as well as the Land Code of the Russian Federation (clauses 2 and 4 of Article 37), which did not exist before. Relations regarding the exchange of land plots are formalized by an exchange agreement, the general rules for the execution of which are established by Chapter. 31 of the Civil Code of the Russian Federation (Articles 567-571) and the Land Code of the Russian Federation, in particular the invalid terms of the land exchange agreement and the requirements for this agreement (Article 37). In accordance with paragraph 1 of Art. 567 of the Civil Code of the Russian Federation, under an exchange agreement, each party undertakes to transfer one product into the ownership of the other party in exchange for another. It should be noted that when an exchange is carried out by state and municipal unitary enterprises, the right of economic management or operational management is transferred or arises under an agreement, and not the right of ownership, as in cases of exchange between citizens and legal entities. In our opinion, the rules provided for by the rules of the Civil Code of the Russian Federation on the purchase and sale of real estate (§ 3, Chapter 30 of the Civil Code of the Russian Federation, Art. 506-524) apply to the agreement for the exchange of real estate. This is explained by some similarities between the purchase and sale agreement and the exchange agreement. The result of both agreements is the transfer of ownership of the land being sold or exchanged. At the same time, the exchange agreement has its own characteristics that make it possible to distinguish it from the purchase and sale agreement and other civil law contracts[2]. Thus, when regulating relations with land plots under an exchange agreement, in the event of a discrepancy between the requirements of the general and special laws of equal force, the norm of the special law applies. At the same time, the specificity of the contract in question lies in the fact that, given the paid nature of the contract, its conditional price is expressed not in monetary form, but in the form of the provision of other property, in this case a land plot. Therefore, the rules on purchase and sale concerning monetary settlements (Articles 486-489 of the Civil Code of the Russian Federation) do not apply to the exchange agreement. However, there is an exception. As a general rule, the exchange of land plots under an exchange agreement is carried out without additional payments, except for the case provided for in paragraph 2 of Art. 568 Civil Code of the Russian Federation. Thus, it is allowed to make additional payments for land plots of unequal value (for example, land plots of different sizes or located far from populated areas, etc., can be recognized as unequal). We believe that it is advisable to recommend avoiding subsequent revaluations of land plots by stipulating in advance the condition for additional payment in the exchange agreement. According to the general rule established by law (Article 458 of the Civil Code of the Russian Federation), the contract is considered fulfilled from the moment both parties fulfill their obligations, i.e. from the moment when the last transfer of the land plot was made. Such transfer is carried out by drawing up a transfer deed or another act evidencing the transfer. From the moment the parties sign the transfer deed, the seller’s obligation to transfer the land plot and the buyer’s obligation to accept it are considered fulfilled, and the contract is fulfilled. Thus, the transaction for the exchange of land plots is carried out by their owners, simultaneously acting as the seller and buyer or their authorized persons by drawing up an exchange agreement[ 3]. It is extremely important that the subject of an exchange agreement cannot be land plots that are under arrest (prohibition), as well as lands that are limited in circulation or withdrawn from circulation. We believe that, depending on the legal status of land plots, the exchange of land may be limited by certain conditions. For example, a plot of land pledged under a mortgage agreement can be alienated by exchange only with the consent of the mortgagee, unless otherwise established by the mortgage agreement (Clause 1, Article 37 of the Federal Law “On Mortgage (Pledge of Real Estate”)[4] The same restriction in exchange exists for land plots that are in permanent (perpetual) use by citizens or legal entities and lifelong inheritable possession of citizens.In this case, it is necessary to obtain the consent of the relevant state or municipal body - the owners provided for permanent (perpetual) use or lifetime inherited ownership of land plots. In turn, an agreement for the exchange of land plots is concluded in writing by drawing up one document signed by the parties; the written form of the exchange agreement entails its invalidity with the application of the consequences of the invalidity of a void transaction (Article 166-168 of the Civil Code of the Russian Federation). requires a clear definition of the subject of the land exchange agreement[5]. Such an agreement must contain data that makes it possible to definitely establish the real estate to be transferred under the agreement. You must specify the location (address); category of land; special purpose; purposes of further use; total area; cadastral number of the land plot; real estate objects located on it (if any); in whose jurisdiction the site is located; rights of third parties; obligations of the parties (Article 554 of the Civil Code of the Russian Federation). It is important to pay attention to the fact that the exchange agreement is subject to mandatory state registration with the relevant justice authority in whose territory the land plots being exchanged are located. State registration of land exchange agreements is carried out in the manner prescribed by the Federal Law of the Russian Federation “On State Registration of Rights to Real Estate and Transactions with It”[6]. Thus, this agreement is the basis for state registration of rights to land plots and transactions with them established by current legislation. Since, as a general rule, the same requirements are imposed on the exchange agreement, including its form, as on the purchase and sale agreement, then with regard to the possible giving of a notarial form to the exchange agreement, one should be guided by the same rules as for the purchase -sale[7]. It should be noted that if there are disputes over land plots (disputes about boundaries, ownership of a particular person, etc.), it is impossible to complete an exchange transaction. It is considered important that the agreement must indicate what rights of third parties apply to the land plots being exchanged or to their part (lease right, temporary use right, pledge right, easement right, etc.). The following are attached to the land exchange agreement as an integral part: – plans (border drawing) of the land plots being exchanged; – acts of establishing the standard price of exchanged land plots, issued by district (city) committees on land resources and land management; – summary statements of assessment of buildings, premises and structures located on the land plots being exchanged (attached when buildings, premises and structures are included in the subject of the contract); – requirements of the pledgee for obligations (attached if one or both of the exchanged plots are pledged); – powers of attorney of persons authorized by the parties or by law to act when concluding an agreement on their behalf (attached if the agreement is signed by authorized persons); – copies of lease agreements, temporary use agreements, pledge agreements concluded by the parties with third parties on the subject of this agreement. From all that has been said, we can conclude that the transaction for the exchange of land plots has its positive aspects, both as an institution of law on the basis of which the transfer of ownership of a land plot in exchange for another takes place, and in regulating homogeneous relations in the field of protecting the legal rights and obligations of the contracting parties sides