How to sell a share in an apartment in 2021

Article updated: December 23, 2021
Mitrofanova SvetlanaLawyer. Work experience - 15 years

Hello. For the sale of shares, I had about 15 clients during the entire period of work. Everyone had their own reason. Usually they sell their shares to someone for registration. This is relevant for Moscow. Or the share was received by inheritance and gift, and the owner does not want to live in this apartment. Everything written here is based on my experience and that of my colleagues.

If your share is bought by one of the owners in the apartment, there are separate instructions - selling the share to another/second owner. It is impossible to sell a seized share, but it is allowed when the other share is seized/pledged. In addition, the share does not need to be allocated in kind or the personal account divided.

You can't do without a notary

Although since July 31, 2021, changes have been made that have simplified the execution of contracts in real estate transactions (Article 5 of the Federal Law of May 1, 2019 N 76-FZ), but these changes have NOT affected transactions for the sale of shares.

If the owner of a share wants to sell it, in this case a notary is required - clause 1.1 of Art. 42 of the Federal Law of July 13, 2015 N 218-FZ. To register such a transaction, Rosreestr will accept the agreement only in notarized form. AND IT MAKES NO DIFFERENCE: 1) To whom the owner will sell his share - to another owner in the apartment or not, to a relative or to a buyer by advertisement. 2) How did the seller get this share - he bought it, gave it to him, inherited it, privatized it, etc. The instructions are the same for everyone and a notary is needed in any case. I wrote in more detail here.

A small digression - if you need a free consultation, write online to the lawyer on the right or call (24 hours a day, 7 days a week): 8 (499) 938-45-78 - Moscow and region; St. Petersburg and region; all regions of the Russian Federation.

Pre-emptive right to purchase

Other apartment owners have the right of first refusal to purchase a share - clause 1 of Art. 250 Civil Code of the Russian Federation. That is, before selling your share to anyone, you must first offer to buy it back to other owners, and in WRITTEN. If other owners do not buy the share within a month, it can be sold to anyone. But only NOT LOWER than the price indicated in the notification. It is better for the notary to notify the other owners in writing. After all, you still have to contact him.

To sell your share you will NOT need: 1) Neither the consent of other owners, but you must first notify them in writing. 2) Neither the consent of those registered/living in the apartment 3) Nor the consent of the guardianship authorities when the apartment has a minor owner. There are no additional restrictions or prohibitions on the transaction if the second owner is a minor child.

Stages and costs:

Stage No. 1 – Verbally offer to buy the share to the remaining owners
Stage No. 2 - Looking for another buyer
Step #3 - Choose a notary
Stage No. 4 – The notary notifies other owners in writing about the sale of the share
Stage No. 5 - Collecting documents for sale
Stage No. 6 – The notary draws up and certifies the share purchase and sale agreement
Stage No. 7 – The notary submits the registration agreement
Stage No. 8 – We collect documents from the notary after registering the transaction
Cost of notary services for registration

When is it necessary to alienate property through a notary?

In most cases, a share in the right to an apartment, house, or land is alienated by concluding a purchase and sale transaction. The agreement is concluded in the form of a single written document. If the law establishes a notarial form of its certification, then in its absence, the transaction is considered void. Starting from 2021, according to the specified rules, gratuitous transactions of alienation of shares are also carried out: donation, allocation to children.

Transactions requiring the participation of a notary

Mortgage of a share in real estate, except when it is issued by a credit institution (bank).
Sale of a share in the right to an apartment, house, land. Exception: alienation of a share in an apartment without a notary is possible when all shares in it are sold under one transaction. If they are transferred to different buyers, all contracts must be notarized.

In this situation, notification of the remaining owners is not required, since they are all selling their shares at the same time. In all other cases, the notary controls the implementation of the law on the preemptive right to purchase a share by other homeowners.

If the share being sold constitutes the common, joint property of the spouses, then for its sale it is necessary to obtain the written notarial consent of the spouse not participating in the transaction.

Alienation of a share of an apartment through a notary is mandatory if the owner is a minor, a person of limited legal capacity, or under guardianship.

In this case, the notary is obliged to notify the guardianship authorities about the transaction; without their consent, the agreement cannot be signed.

Sale of a share of a land plot with five or fewer owners.

If the number of owners is more than five, the sale is carried out according to the standards established by Law No. 101-FZ of July 24, 2002.

Alienation of a share of real estate to pay for the authorized capital of an LLC.

Such transactions are not recognized as purchase and sale, therefore, they do not necessarily require compliance with the rules on the pre-emptive right to acquire a share by a co-owner. However, the agreement requires notarization, since this form is provided by law for all forms of alienation of shared property.

Stage No. 1 - Verbally offer to buy the share to the remaining owners

To do this, decide on the selling price in advance. If one of the owners agrees to buy it, you will find a link to my separate instructions at the beginning of the article.

If none of the owners is going to buy, ask them to register a waiver of purchase with any notary. Costs 1,000 - 2,000 rubles. If they are not going to buy a share, nor formalize a refusal to purchase, they are generally against the sale, or there is no communication with them, go to the next stage.

Complex cases

It may seem that the exchange agreement is not of a compensatory nature, but if the owner plans to exchange his share with another person, then he should also receive paper from other owners.
Only after a waiver of pre-emption agreement has been executed will he be able to exchange the property. A real estate transaction without a corresponding agreement signed by a notary will not be registered by any government agency. This is why it is so important to contact a specialist. A qualified notary will be able to draw up papers in accordance with legal requirements.

It is important to remember that when selling part of real or movable property, the co-owner must offer shareholders the same price as he could offer to other buyers. You cannot inflate the cost beyond a reasonable limit. As a rule, most co-owners agree to buy out the share so as not to give it to a third party.

The notary will help in the case when the client needs to notarize the signatures of the co-owners in the document waiving the pre-emption purchase. In Irkutsk, such a refusal can be certified quickly enough by contacting a law office. Papers certified in accordance with all legal requirements are accepted by government departments, and problems never arise with them.

Stage No. 2 - Looking for another buyer

Place an ad in Avito, CIAN, Domofond, From Hand to Hand, etc. Be sure to indicate the size of the share, price, number of rooms in the apartment. You can contact a real estate agency. There are those who specialize specifically in the sale/purchase of shares.

Be sure to discuss the final price for the share with the buyer, because... it will need to be indicated in a written notice to other owners (step No. 4).

Then think about payment methods. The parties must also agree on this in advance. Firstly, you can pay for your share at ANY time - before signing the contract (I don’t recommend it), during signing, or best of all, after registering the transaction with the MFC.

There are also different payment methods, I’ll briefly go over the most common ones:

Immediately in cash or by transfer to the seller. Everything is simple here. The buyer hands over the money to the seller or to his bank account (either before or after signing the contract or registering the transaction), and the seller writes a handwritten receipt for receipt. I don’t really like this method, but if the buyer and seller know each other well and trust each other, I don’t discourage it.
Renting a safe deposit box. Usually they do this: The seller and the buyer go to any bank and rent a safe deposit box in the buyer’s name. A bank employee will draw up an agreement for them that the seller can take the money only when he brings an already registered purchase and sale agreement, i.e. when the buyer already becomes the owner of the share. The key to the locker is kept by the seller. The price of the service is different for each bank, somewhere from 1,500 rubles. They usually rent for a month.
Letter of Credit. This is a bank account. Everything here is the same as with renting a cell. Only with a letter of credit all transactions are carried out non-cash. The buyer transfers money to the letter of credit. After the transaction, the seller brings the registered agreement to the bank, and the bank employee transfers the money to his account. Price minimum 2,000 rubles + transfer fees.
Notary deposit account. The buyer transfers money in cash or by bank transfer to the notary's deposit account in the bank, and the notary gives the money to the seller only after registering the transaction. Also in cash in hand or transferred to his account. Not all notaries provide this service. They charge from 2,000 rubles for this.

Rules for drawing up a letter of offer to buy out a share in an apartment

The document may contain additional information:

Information about the discharge of the seller and his family members.
Data on the presence of encumbrance.
Date of delivery of keys.
Method of transferring payment for a share.
Presence/absence of collateral, advance payment.
Possibility of payment in installments.

Sample proposal to buy out a share in an apartment

Step #3 - Choose a notary

You can contact any local notary at the location of the apartment, but within a subject of the Russian Federation - Art. 56 Basics about notaries. The list of subjects of the Russian Federation is indicated in Art. 65 of the Constitution. This means that if the apartment is located in Moscow or St. Petersburg, you can contact any notary in Moscow or St. Petersburg. Because these two cities are considered separate subjects of the Russian Federation. In other cases, you can go to any notary of the region/territory/republic/district. For example, if the apartment is in Krasnodar, contact any notary in the Krasnodar region.

It is better to look for a notary on Yandex.Map. It’s convenient to search on it - you can find a notary near you, read reviews about him, look at his ratings, find out his phone number, address, opening hours, etc.

In my experience, the most important thing when choosing a notary is the quality of service he provides. Their prices for all services are almost the same, so read the reviews - is he polite with clients, are his employees fast, are they ready to advise, etc. I advise you to pay attention to this, because since 2016, about 90% of real estate transactions go through only them. Because of this, notaries have no problems with orders, so many stop monitoring the quality of their services. They believe that there is still a lot of demand and people will apply anyway. Also, almost every realtor has a familiar notary with whom he constantly collaborates.

I advise the seller and buyer to go to the notary in advance and tell them in detail about the transaction. He will draw up an entire action plan and a list of documents that need to be collected. He can also go to your home if one of the parties cannot visit him due to health or age. This is to issue a power of attorney.

Nuances

There are a number of preferential rights, the essence of which is not to be the first to receive an offer that others will also receive, but to squeeze out competitors. This is, for example, the preferential right to enroll in a kindergarten or school at the place of registration; preferences for Russian companies in government procurement; the right of orphans, disabled people, military personnel and children of security forces to enter universities.

In these cases, the winner is not the one who better meets the general selection criteria (has good training, offered a better product), but the one who has the privilege. That is, the legislator interferes in the selection of candidates, putting up with the deterioration of the quality of the product or the decrease in the level of knowledge of students in order to achieve some socially significant goals.

For example, the best universities in the United States are introducing preferences for black applicants - if exam results are equal, they will accept an African American student over a white school graduate. Such positive discrimination is aimed at expanding access to education and, as a result, at overcoming inequality in employment and wages.

A similar practice has developed at the prestigious Yale, Harvard and Princeton. During the presidency of Donald Trump, the US Department of Justice even filed a lawsuit against Yale University, accusing the university of discrimination against whites and Asians. In February 2021, with the arrival of Joe Biden, the lawsuit was withdrawn.

Stage No. 4 – The notary notifies other owners in writing about the sale of the share

The seller needs to provide his passport and an extract from the Unified State Register for the apartment. It contains the full names of all apartment owners. You can get it at any MFC, it costs 460 rubles - order instructions. You also need to provide the cost of the share and the address of the apartment where the share is being sold. Notifications are sent to this address. If the owner lives at another known address, this must also be reported. For this service, notaries charge 2,000 - 2,500 rubles + postage. They are guided by Letter of the Federal Tax Service dated March 31, 2016 N 1033/03-16-3 and Art. 86 Basics about notaries.
The notary draws up and sends notices of sale via mail. Now we just have to wait a MONTH. The period is counted from the moment of delivery of the notification, and not dispatch - clause 1 of Art. 165.1 Civil Code of the Russian Federation. Typically, owners refuse to receive notices, but they are still considered delivered. And the post office sends notifications back to the notary after a month.
As a result, the notary issues a certificate of sending/transfer of notification to the seller. Once a month has passed, you can now sell the share, i.e. draw up a purchase and sale agreement with a notary.

As I wrote above, other owners can register with any notary a refusal to purchase a share, then there will be no need to wait a month - clause 2 of Art. 250 Civil Code of the Russian Federation. Costs 1,000 - 1,500 rubles. If one of the owners is a minor, his refusal to purchase is formalized after receiving permission from the guardianship authorities - clause 3 of Art. 60 of the RF IC and clause 2 of Art. 37 Civil Code of the Russian Federation.

What if one of the notified owners nevertheless agrees to buy the share at the price specified in the notification? The consenting owner still only has a month to sign the agreement and submit it for registration. If he doesn’t have time, the seller can sell it to anyone he wants. Simple agreement is not enough here. Some people mistakenly think that they can stall for time if they simply give their “consent.” But in fact, they weren’t going to buy it.

If the buyer and seller then negotiate for a price LOWER than that indicated in the sent notifications, they will have to 1) Or re-notify other owners indicating the new price. 2) Or indicate the old price in the sales contract and receipt. There is no need to re-notify the remaining owners when the share is sold for more than their notification.

Maybe not notify the other owners at all? The transaction will not be registered on the basis of paragraphs. 40 clause 1 art. 26 of the Federal Law of July 13, 2015 N 218-FZ. Along with the contract, you must bring written evidence of the notification.

Cost of notarization of a transaction

For performing notarial acts for which the law requires a notarial form, the notary charges a tariff in the amount of the state fee.

The price of the share is established on the basis of agreement of the parties, cadastral value or assessment report. If there are two documents indicating different values, the higher value is taken into account. At the same time, the notary fee for transactions requiring mandatory notarization cannot exceed 20,000 rubles. In addition to the tariff, legal and technical services of a notary (PiTH) are paid. In Moscow, the fee is 6,000 rubles, while minors are exempt from payment in proportion to their participation in the contract.

An additional advantage of having real estate alienation transactions certified by a notary is that, at the request of the parties, he sends documents for registration of the transfer of rights to the Rosreestr body free of charge. At the same time, you can receive an extract from the Unified State Register for the new owner within 24 hours, since a notarized transaction does not require additional verification by Rosreestr.

Stage No. 5 – Collecting documents for sale

The notary needs the documents in originals. This is the main list, but there may be additional ones:

Passports of the buyer and seller;
If the buyer is between 14 and 18 years old, he needs his passport and the passport of one of the parents (guardian, trustee). If he is under 14 years old, his birth certificate and the passport of one of the parents (guardian, trustee).
If the party is represented by a proxy, his passport and notarized power of attorney. In this case, you do not need to bring the original passport of the principal or a copy. The power of attorney can be issued by the same notary.
Certificate(s) of registration of rights or a paper extract from the Unified State Register of Real Estate about the property;
These documents must be provided by the seller. They are needed to confirm ownership of the share being sold. Registration certificates have been canceled and will not be issued as of July 2021. But if there is a certificate that was issued before July 2021, bring it.
If there is no certificate, you need a paper extract from the Unified State Register of Real Estate about the property. The property in this case is an apartment. The extract also confirms ownership. Anyone can order it for 460 rubles at the MFC. I provided a link to the instructions above.
Foundation agreement;
This is the document on the basis of which the seller owns the share. If the share was purchased - a purchase and sale agreement. It was inherited - a certificate of inheritance. In case of privatization – a privatization agreement. I think the idea is clear.
Technical passport for the apartment from the seller. You can order it at the BTI and at the MFC.
Notarized consent of the seller’s spouse, if the share was purchased during his marriage, but is registered only in his name. This consent can be issued by the same notary. The seller's spouse must provide a passport and marriage certificate. Registration costs about 1,000 - 2,000 rubles.
Certificate from a psychoneurological clinic;
Notaries rarely require such certificates to make sure that the seller is in adequate condition. Especially if the seller is over 65 years old. It is important for the notary that the elderly person understands his actions, that he is selling his share, etc. Moreover, some notaries require an examination at a psychoneurological dispensary, and not just a certificate stating that the seller is not registered there.
Certificate from a drug treatment clinic;
Here is the same as with the help above. The notary may require this certificate if it seems to him that the seller is either a heavy drinker, or uses drugs, or is registered as a drug addict. Some notaries require an examination, and not just a certificate stating that the seller is not registered with a drug treatment clinic.
Extract from the house register.
It is only needed if the seller of the share will continue to live (be registered) in the apartment after the purchase and sale transaction. Officially, it is called a certificate of registered persons or a certificate of family composition. This extract is needed to prove that the seller is actually registered in the apartment. How to get an extract from the house register. The accommodation clause must be indicated in the purchase and sale agreement itself.

Stage No. 6 – The notary draws up and certifies the share purchase and sale agreement

The seller and buyer need to come to the notary and hand over the documents. The list is listed above in the fourth step. Or they are given by a trusted person.
The notary will draw up a purchase and sale agreement in several copies, which the parties must sign in his presence.
If the buyer of the share is under 14 years old, his presence is not required, and the contract is signed for him by one of the parents (guardian, trustee). If he is between 14 and 18 years old, he himself signs the agreement, plus one of the parents (guardian, trustee) signs. Services for drawing up a contract are paid in advance. The number of copies of the agreement depends on the number of participants, plus one remains with the notary for the archive. For example, when there is one seller and one buyer, there will be three copies. For the buyer, a certified copy of the contract will be drawn up on a special form with watermarks, and for the seller and the notary himself, certified copies will be on plain paper. I also indicated below that the agreement can be drawn up by the parties themselves, it is not necessary that it be drawn up by the notary himself.
The parties sign the drawn up agreements only in front of a notary, then the notary will certify the agreement (certify the signatures on it). The parties pay the state duty for certifying the contract before signing it. Find out the cost at the link below.

Stage No. 7 – The notary submits the registration agreement

Now the notary is obliged to submit a notary agreement for registration himself, FREE OF CHARGE AND ON THE SAME DAY. This is already included in the transaction certification service. Notaries have such responsibilities since February 2021 on the basis of Art. 1 of Federal Law dated August 3, 2018 N 338-FZ. This law excluded the notary's tariff from Art. 22.1 Fundamentals about notaries, and in it I added paragraph 2 - that a notary does not have the right to charge money for additional legal services. Explanations of the Federal Notary Chamber - link.

Typically, notaries submit documents electronically. Then the transaction must be registered within one business day. If the notary does not have the opportunity to submit electronically, he or his assistant must submit the documents in person to the Rosreestr office and within a maximum of 2 business days. The registration period will be 3 working days after submission. All this is indicated in paragraph 9 of Art. 16 of the Federal Law on Real Estate Registration of July 13, 2015 N 218-FZ.

Participants in the transaction must pay the notary only the state fee for registering the transaction - 2000 rubles (clause 22, clause 1, article 333.33 of the Tax Code of the Russian Federation). If a notary submits documents electronically, Rosreestr has established a 30% discount - you only need to pay 1,400 rubles. According to the law, the buyer pays the state duty, because he is the beneficiary, but in practice the notary doesn’t care who gives the money.

Of course, the parties can refuse the free notary service and submit the agreement for registration to the MFC or the Registration Chamber themselves. The state duty will be the same - 2000 rubles. (Clause 22, Clause 1, Article 333.33 of the Tax Code of the Russian Federation).

Stage No. 8 – We collect documents from the notary after registering the transaction

Based on the submitted documents, the registrar of Rosreestr will register the transfer of ownership and make a corresponding entry in the Unified State Register of Real Estate (USRN). Registration period is 3 working days after receipt of documents (Clause 9, Article 16 of the Federal Law on Real Estate Registration of July 13, 2015 N 218-FZ). Rosreestr is often busy, so be prepared for delays. After registering the transaction, all documents will be sent back to the notary. Notaries usually do not notify clients that they have received documents, so you will have to call him and clarify this over the phone.

Participants in the transaction can come to the notary on different days, because everyone receives their own documents. Purchase and sale agreements will be marked with state registration. Certificates of ownership were canceled in 2021; instead, extracts from the Unified State Register of Real Estate about the property are issued.