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When buying or selling living space in a communal apartment, it is necessary to obtain a refusal from the persons who have the pre-emptive right to purchase.
This rule is specified in Article 42 of the Housing Code of the Russian Federation. Otherwise, there is a high risk of the transaction being annulled in court.
Who should I notify?
Each owner has the right to dispose of his own room. This rule also applies to home sales. At the same time, it is necessary to inform those who have the right of first refusal. According to Article 250 of the Civil Code of the Russian Federation, these are the owners of neighboring rooms.
Employers do not have this advantage.
If the apartment has non-privatized premises, then notifications must be sent to the municipality.
The terms of implementation should not be different. That is, the seller must offer equal prices and terms, both for neighbors and for other persons. The age of the owners should be taken into account. If the room belongs to a child under fourteen years of age, then notification must be sent to his legal representatives. At the age of fourteen to eighteen, a person himself can express his will, but the answer must be signed by a parent or a person replacing him.
Preemptive right to purchase rooms in a communal apartment
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Posted by: Egorov Konstantin Mikhailovich Real estate, rental of premises, privatization, rent Articles 09/17/2008
On December 22, 2004, the State Duma of the Federal Assembly adopted Federal Law No. 188-FZ “Housing Code of the Russian Federation,” which entered into force on March 1, 2005. This legal act introduced a lot of new things into the regulation of housing relations. So, in accordance with paragraph 6 of Art. 42 of the Housing Code, when selling a room in a communal apartment, the remaining owners of the rooms in this apartment have a pre-emptive right to purchase the alienated room in the manner and under the conditions established by the Civil Code of the Russian Federation. That is, when selling a room in a communal apartment, the procedure for the preferential acquisition of shares in common shared ownership applies, which is defined in Art. 250 Civil Code of the Russian Federation.
The provisions of this article regulate the relations arising during the purchase and sale as follows: when selling a share in the right of common ownership to an outsider, the remaining participants in shared ownership have a preemptive right to purchase the share being sold at the price for which it is sold, and on other equal conditions. The seller of a share is obliged to notify in writing the other participants in shared ownership of his intention to sell his share to an outsider, indicating the price and other conditions under which he sells it. If the remaining participants in shared ownership refuse to purchase or do not acquire the sold share in the right of ownership of real estate within a month, and in the right of ownership of movable property - within 10 days from the date of notification, the seller has the right to sell his share to any person.
In the event of a sale of a share in violation of the pre-emptive right, any other participant in shared ownership has the right, within three months, to demand in court the transfer of the rights and obligations of the buyer to him. Consequently, paragraph 6 of Art. 42 of the Housing Code of the Russian Federation imposes an additional obligation on the seller to notify the owners of other rooms. Such a procedure for exercising the right to dispose of one’s property gives rise to a number of problems of both a legal and technical nature. In this article we will try to outline some of them.
It should be noted that in Art. 42 of the Housing Code of the Russian Federation refers to the regime of separate ownership of rooms in a communal apartment; a similar legal regime is established for owners of apartments in an apartment building. When an owner disposes of an apartment in an apartment building, only the will of this owner is recognized as legally significant, despite the fact that the owners of the premises in the apartment building have the right of ownership to the common property. The opposite situation is observed when disposing of a room in a communal apartment. A person wishing to sell a room in a communal apartment must respect the pre-emptive right of purchase of the owners of other rooms. Thus, under the same legal regime, namely the regime of separate (not common) property, owners are placed in different conditions for the implementation of property rights, which leads to a violation of the constitutional principle of equality of all before the law.
The norm contained in paragraph 6 of Art. 42 of the Housing Code of the Russian Federation, provides the opportunity to abuse the right of first refusal, namely: the owners of neighboring rooms may evade receiving notification, since current legislation does not impose obligations on citizens and legal entities to receive correspondence sent to them and does not establish liability for failure to receive notification.
If the seller of the room, for some reason, was unable to establish the place of residence of at least one of the owners of adjacent rooms in a communal apartment, or one of the indicated owners evaded receiving the appropriate notification and refused to formalize a waiver of the pre-emptive right to purchase in the manner prescribed by the current legislation, the seller will not be able to provide to the body for state registration of rights to real estate and transactions with it a document confirming compliance with the pre-emptive right of purchase of the owners of adjacent rooms in a communal apartment, which, in accordance with paragraph. 9 clause 1 art. 20, paragraph 1, art. 24 of the Federal Law “On State Registration of Rights to Real Estate and Transactions with It” will entail a refusal of state registration of the contract for the sale and purchase of a room and the transfer of ownership. Article 558 of the Civil Code of the Russian Federation provides that a contract for the sale and purchase of residential premises is subject to state registration and is considered concluded from the moment of such registration.
Accordingly, in the event of refusal of state registration for the above reason, the owner of the room will not be able to exercise his authority to dispose of the property owned by him.
The rule contained in paragraph 6 of Art. 42 of the Housing Code of the Russian Federation, makes it difficult and practically impossible for the seller to dispose of a room in a communal apartment if the location of the owners (one of the owners) is unknown. Among other things, the law does not stipulate how the seller of a room in a communal apartment should act if one of the owners of a room in a communal apartment has died, and no one has yet accepted the inheritance or the documents for the specified room have not been properly drawn up, and, thus, there is no possibility of submitting the body carrying out state registration of rights to real estate and transactions with it, documents confirming that it was the owner who was notified.
When selling a room in a communal apartment, circumstances may arise in which it will be impossible to clarify the issue of ownership of the adjacent room (rooms) by a certain person, since under current legislation the seller is not entitled to demand the presentation of title documents from other citizens.
In the Unified State Register of Rights to Real Estate and Transactions with It, information about the owner of the room may not be available, for example, when purchasing a room before the Law “On State Registration of Rights to Real Estate and Transactions with It” came into force. And the data contained in the technical inventory bodies do not have signs of publicity, openness and reliability.
In a situation of instability of the real estate market, the rule established by paragraph 6 of Art. 42 of the Housing Code of the Russian Federation, further complicates civil circulation, since the owner of the room, who has notified the owners of neighboring rooms about the sale of his room, after a certain time will be faced with the need to change the price of the object being sold and will be forced to notify these persons again and wait for the month to expire. Rule paragraph 6 of Art. 42 of the Housing Code of the Russian Federation significantly limits the seller’s ability to dispose of his property even in the case when neighboring rooms are in state or municipal ownership. In accordance with Art. 125 of the Civil Code of the Russian Federation, on behalf of the Russian Federation and the constituent entities of the Russian Federation, public authorities may, by their actions, acquire and exercise property and personal non-property rights and obligations, and act in court within the framework of their competence established by acts defining the status of these bodies. On behalf of municipalities, through their actions, local government bodies can acquire and exercise rights and obligations within the framework of their competence established by acts defining the status of these bodies.
Consequently, a waiver of the pre-emptive right of purchase belonging to the Russian Federation, a constituent entity of the Russian Federation or a municipal entity must be expressed, respectively, by a government body of the Russian Federation, a government agency of a constituent entity of the Russian Federation or a local government body. In this situation, the owner is responsible for identifying a duly authorized body or official who can express a waiver of the pre-emptive right to purchase. Obtaining such a refusal is complicated by the fact that the current legislation does not provide for the obligation of state bodies and officials, at the request of sellers, to appear at the body that carries out state registration of rights to real estate and transactions with it, or the obligation to express a refusal of the pre-emptive right to purchase in any other way. Today, a significant number of rooms remain in state or municipal ownership.
Thus, paragraph 6 of Art. 42 of the Housing Code of the Russian Federation makes the implementation of property rights dependent on the will of one or another public authority, which is unacceptable in a democratic state governed by the rule of law and directly contradicts paragraph 2 of Art. 1 of the Housing Code of the Russian Federation, according to which “citizens, at their own discretion and in their own interests, exercise their housing rights, including disposing of them.”
The likelihood of exercising the right to dispose of a room in a communal apartment is also reduced in the case when the owner (owners) of the adjacent room (rooms) are minor citizens. In accordance with paragraph 2 of Art. 37 of the Civil Code of the Russian Federation, a guardian does not have the right, without the prior permission of the guardianship and trusteeship authority, to carry out, and the trustee does not have the right to consent to, transactions involving the alienation, including exchange or donation, of the ward’s property, leasing it (lease), for free use or in pledge, transactions entailing the renunciation of the rights belonging to the ward, the division of his property or the allocation of shares from it, as well as any other transactions entailing a decrease in the property of the ward.
It follows from the above that in order for the legal representative of a minor citizen under 14 years of age to renounce the pre-emptive right to purchase a room in a communal apartment, it is necessary to obtain the consent of the guardianship and trusteeship authority. A similar situation arises when a minor between 14 and 18 years of age, acting with the consent of a legal representative, waives the right of pre-emption. Consequently, the seller also becomes dependent on the guardianship and trusteeship authorities, which, taking advantage of the lack of proper regulatory regulation, can consider an application for permission to waive the pre-emptive right for an indefinite period of time and demand the submission of almost any documents. Among other things, neither a minor citizen nor his legal representatives are required by law to contact the guardianship and trusteeship authorities at the request of the seller of the room. In this case, the exercise of the owner’s powers depends only on the consciousness of the minor and his legal representatives.
In case of evasion of the owner (owners) of adjacent rooms from expressing a refusal of the pre-emptive right to purchase in the form of a notarized document or a refusal issued by the body carrying out state registration of rights to real estate and transactions with it, or evasion of receiving notification of the upcoming sale of a room in In a communal apartment, the seller is deprived of legal means to protect against this kind of abuse by unscrupulous owners of neighboring rooms.
The right of first refusal can be justified only by the essence of the relations in which it is applied. It must protect the interests of participants in common property or the interests of participants in a common business. However, in Art. 16 of the Housing Code of the Russian Federation stipulates that a room is an independent object. The owners have separate (not shared or joint) ownership of rooms in communal apartments, and binding these owners with a pre-emptive right to purchase cannot be considered constitutional and justified. The norm contained in paragraph 6 of Art. 42 of the Housing Code of the Russian Federation, forces sellers to enter into sham transactions, namely, in order to exercise the right to dispose of real estate, sellers enter into donation agreements for rooms in communal apartments, covering up the purchase and sale agreement, which cannot but affect the stability of civil turnover. By enshrining this norm, the state itself encourages sellers to engage in illegal behavior.
In our opinion, the establishment of the right of first refusal to purchase rooms in a communal apartment in the Housing Code violates the constitutional rights provided for in Art. 18, paragraph 1, 2 art. 19, paragraph 1, art. 34, paragraph 1, 2 art. 35 of the Constitution of the Russian Federation. In accordance with Art. 18 of the Constitution of the Russian Federation, the rights and freedoms of man and citizen are directly applicable. However, the property right enshrined in Art. 35 of the Constitution of the Russian Federation, namely the power to order, in relation to rooms in communal apartments, it is not possible to recognize it as directly acting, since its implementation directly depends on the will of the owners of adjacent rooms in communal apartments. The Housing Code makes the right to dispose of a room dependent on whether other owners want to receive notice of the upcoming sale of the room or do not want to, express their will to waive the pre-emptive right to purchase the room or do not do so.
According to the general legal principle enshrined in Art. 19 of the Constitution of the Russian Federation, everyone is equal before the law and the court. However, paragraph 6 of Art. 42 of the Housing Code of the Russian Federation directly violates this principle, since for some owners it establishes simpler conditions for exercising the right to dispose of their property, while for others it unreasonably complicates the procedure for exercising the right.
In our opinion, the legislator, when establishing the regime of the right of first refusal, did not take into account the specifics of the legal regulation of the right of common shared ownership and property rights. To overcome the current situation, it is necessary to exclude the pre-emptive right to purchase rooms in a communal apartment from Art. 42 of the Housing Code of the Russian Federation.
Implementation procedure
The procedure for selling a room in a communal apartment does not differ significantly from the standard scheme for buying and selling real estate. The key difference is the need to send notices to priority buyers - neighbors. After registration of the refusal, negotiations are held with the potential purchaser.
Afterwards, an agreement is drawn up and signed and mutual settlements are made between the parties to the transaction. An acceptance certificate is drawn up and signed. Finally, the new owner registers his right with Rosreestr.
Waiver validity period
The refusal, as such, does not have a specific validity period. It concerns a clearly defined situation. It is impossible, for example, on the basis of one refusal to sell a completely different room, and not the one that was originally intended. Thus, the refusal is a one-time document, relevant only in certain conditions and for an extremely limited period of time.
By law, a potential neighbor buyer has exactly 30 days from the date of receipt of notification of the sale of the room. This period can be considered as the validity period of the refusal.
How to issue a refusal?
- All neighbors are notified in writing.
- The refusal to purchase is agreed upon and the date and time of the visit to the notary is agreed upon. Personal presence of all owners and documents required:
- notarized offers to purchase a room;
- passports of the owners of neighboring rooms;
- certificates of ownership of shares;
- information about the property (address, area, cost, etc.).
- The document is being drawn up.
Cost of paperwork
First of all, the costs will be associated with notary services. The cost of his work varies from 1000 to 2000 thousand rubles. It is also necessary to pay for delivery of the notice to the owners. If postal delivery is used, the letter is sent by registered mail with acknowledgment of delivery to the addressee. The cost of shipping will depend on the remoteness of the recipient’s residence (see tariffs on the Russian Post website).
Common problems with neighbors
They don't want to receive or ignore the notification
If neighbors do not pay attention to the notification received, this is an obstacle to completing a real estate transaction. It is enough to have a receipt for sending the letter, or a notification that it was not received. Then you can make a deal. You can turn to the services of a notary who will legally certify and forward the letter. This will be a fact of proper informing of neighbors.
How to find the owner of a living space in his absence?
If the owner is absent, then information can be obtained from Rosreestr. It is necessary to fill out an application and pay the state fee. The applicant cannot be refused.
The owner of the neighboring premises has died, and the heir does not enter into the inheritance
If the heirs of the deceased owner have not yet accepted the property, then you should wait until the end of the procedure. Its period is six months from the moment of death. The inheritance can be transferred earlier if there are no other claimants to the property.
The situation can become more complicated if there is a dispute between potential recipients. In such a situation, you will have to wait until the court makes a decision. In any case, it is necessary for the new owner to take ownership and register them with Rosreestr. Then the deal can be implemented without legal violations.
Implementation without consent: is it possible?
Notifying your neighbors of your intention to sell your room is a prerequisite for completing a real estate transaction. Otherwise, there will be grounds for legal action.
Legal practice shows that it would still be correct to obtain the consent of neighbors. If any of them is interested in the offer, then there is no need to issue additional notifications. A purchase and sale agreement is simply concluded and mutual settlement is made.
What if the owner is against it?
Sellers often face this situation. When any or all of the neighbors object to the transaction. This fact is not an obstacle to the transaction. It is necessary to inform each owner properly (see above) and in a month the room can be sold.
The sale of a room in a communal apartment is carried out according to the rules established for any other housing. A distinctive feature is the fact that it is necessary to inform neighbors of your intention. If they are properly notified, the transaction can be carried out without legal violations.
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Legal requirements
There is a certain sequence for selling a share of real estate or a room in a communal apartment. It is necessary to initially notify all neighbors in the apartment about your decision. The success of a transaction with an outside buyer depends on the correct implementation of preparatory measures, otherwise any agreement may be challenged in court. Therefore, notification must be made in writing, indicating the value of the real estate with a detailed description.
Options for providing a waiver of redemption to Rosreestr:
- In the form of a written application when submitting the main documents for registration.
- Via Russian Post by registered mail with notification or telegram.
Important! If disputes arise regarding the price or the applicants ignore the appeal, then you should wait a month, after which the transaction can be completed. If the potential buyer with priority right is a child, then an additional response from the guardianship and trusteeship authorities is required.
