I am the owner of the room, 1/2 share in the apartment. Do I need my consent for the second owner and his family to register there? - Lawyer in Samara and Moscow - representation in court and legal services

Safety rules when buying an apartment

“A two-room apartment for sale in Moscow. Green area, European-quality renovation, inexpensive.” Veronica was already imagining how she would arrange the furniture in this cozy apartment. But on the advice of friends, she turned to lawyers.

It turned out that along with the keys to the apartment, she would have had a fair amount of problems added to her burden: the apartment was under arrest. This became clear only after checking.

So remember and tell everyone:

How much risk does an apartment buyer take?

All apartments on the secondary market have a legal history, and often it is not entirely transparent. At the same time, the greater the number of transactions in the history of the apartment, the more serious the risks of the new buyer may be.

If the buyer does not check all the documents and does not detect possible risks, the court may declare the transaction invalid, and the buyer risks being left without money and an apartment. By law, the seller, of course, is obliged to return the money after termination of the transaction, but often he no longer has it.

Why is this dangerous?

In the history of each apartment, as in Russian legislation, there are many nuances that, if desired, will allow every tenth real estate transaction to be challenged.

Mistake #1. Law violation

The apartment was sold to the Petrovs by a nice woman with a general power of attorney from her husband. And everything would have been fine, only the husband was no longer alive at the time of the sale. The widow, not wanting to share with other heirs, hid the fact of death and pulled off the deal. When the story came to light, the contract was terminated.

Lawyer's comment:

The court may invalidate the present and previous transactions and return the apartment to the rightful owner.

Mistake #2. Deranged salesman

The deal went through, Andrei and his family move into the purchased property.

Two months pass. The money received by the seller for the apartment has been spent. And then he goes to court with a claim - when selling his only home, he did not realize his actions, because... abused alcohol.

After an examination, the deal was declared invalid. In this case, the court obliges the seller to return the funds received from the transaction. The entire amount is no longer available - it will be returned in parts.

Lawyer's comment:

The deal can be terminated if the owner of the apartment proves in court that he was not aware of his actions at the time of signing the contract, was under the influence of alcohol or drugs, or was misled.

Mistake #3. Invisible Tenant

The Smirnovs bought a one-room apartment in Lyublino. We lived there for a year. And suddenly the doorbell rang. An unfamiliar man says that he lives here.

It turned out that mother and son were registered in the apartment. The son went to prison for 15 years. And my mother privatized the apartment without his knowledge and sold it to the Smirnovs. And then the son comes out of prison and goes straight to his apartment.

Lawyer's comment:

Residents temporarily discharged to places of deprivation of liberty, boarding houses, medical and other institutions retain the right to reside in an apartment. They may appear a few years later and move into the home you bought through the court.

Mistake #4. Heirs' rights

The Antipovs have just finished renovations in their new apartment when it suddenly turns out that they could be evicted. The apartment was sold to them by a married couple, who in turn received this housing from their grandmother. But their grandmother was not their own, but simply a neighbor whom they regularly looked after - they bought food, medicine, and took her to the clinic. Grandmother, in gratitude for their kindness and care, registered the apartment in their name.

Only 2 years after the death of my grandmother, relatives from Estonia arrived - all this time they had no time for her. “My grandmother promised us an apartment, and the neighbors took advantage of her helplessness,” the relatives said in court.

Lawyer's comment:

The interests of all heirs were not taken into account. Even after several years, they can claim a share in the apartment, proving their rights through the court.

The law is on the side of the participant in shared construction

First of all, let’s outline what a developer delaying construction looks like from the point of view of the law: long-term construction is the common name for a construction project, the commissioning of which is overdue for a year or more. This means that not only the terms of the equity participation agreement were violated, but also the current legislation.

According to Federal Law 214-FZ “On participation in shared construction of apartment buildings...” dated December 30, 2004, violation of the deadline for transferring a shared construction project to the owner entails penalties for the developer in the form of payment of a penalty:

1/300 of the refinancing rate of the Central Bank of the Russian Federation for the current day for each day of delay for legal entities;
1/150 of the refinancing rate - for individuals.

Rights of the shareholder as a consumer of services

A participant in shared construction who purchases an apartment for personal (non-commercial) purposes is considered as a consumer of services, and accordingly is protected by Federal Law No. 2300-1 “On the Protection of Consumer Rights” dated 02/07/1992.

His relations with the developer are regulated by the provisions of Chapter. III, which, among other things, establish requirements for the timing of work (Articles 27-28). Thus, if the commissioning period is violated, the shareholder has the right to:

demand a reduction in the contract price;
refuse to fulfill the contract with the return of all deposited funds and interest for their use;
obtain compensation for losses incurred due to violation of deadlines.

How do you know that you can buy an apartment?

To check the selected apartment for risks, ask the seller and carefully study the documents:

Seller's passport

The data in the passport must match those specified in other real estate documents.

Certificate of ownership and other title documents (sale or inheritance agreement, donation, privatization, etc.)

Be sure to check the address of the apartment you looked at with the address indicated in the documents. The contract must indicate the full cost of the property.

Extract from the Unified State Register of Real Estate

You can order an extract from the MFC or on the Rosreestr website.

Using this document, you can find out whether the seller really is the owner of the apartment, as well as about other owners of the apartment.

The extract from the Unified State Register of Real Estate has a separate field where existing restrictions, arrests, pledges and their type will be indicated. If there are no encumbrances, then there will be a dash in this column.

This is important to know: Buying an apartment during marriage: who to register for?

Extract from the house register about the absence of registered residents

Can be obtained from the MFC. Check the details of the residents registered in the apartment at a given time: full name, date of birth, previous place of residence, when and where they were discharged. Be careful - none of the residents should be left hanging in the air.

Certificate of arrears in utility bills

You can get it from the Housing Office to check that there are no debts on gas, electricity, water supply, etc.

Certificate from the narcological and psychoneurological dispensary

It is important to make sure that the seller is not registered with a psychoneurological and drug addiction clinic, and therefore is aware of his actions at the time of selling the apartment.

What else should you pay attention to?

There should be no corrections or blots in the documents. If you notice something like this, be wary - you may have a fake in your hands.

When concluding a transaction, require the consent of your spouse, even if the apartment was not purchased during marriage, even if they are divorced. Lack of consent may give rise to legal disputes.

If one of the owners of the apartment is a minor, permission from the guardianship authorities is required to sell the apartment.

If an apartment is sold by proxy, there is a high probability of fraud and deception. Require the seller to be present at the transaction. Otherwise, it is better to look for another option.

Be sure to ask your neighbors - they can tell you a lot of useful information about both the owner and the apartment itself.

Hidden owners - who are they and how can you avoid running into them when buying an apartment?

The procedure for buying and selling an apartment takes place with the direct participation of the buyer and the seller, who is the owner. It is in his name that the title to the property must be registered. However, after the purchase it may turn out that someone else has the right to own or live in the apartment.

These are the so-called hidden owners when buying an apartment - persons who, even after the completion of the transaction, can challenge it and return the property or demand the allocation of a share, as well as register and live in it.

Who are these people? Let's look into this in our article.

Who are the hidden owners in an apartment or house?

What does hidden owner mean? This term in housing legislation refers to third parties who have the right to part of the property or to reside/register in it. Who could it be:

Owner's legal spouse

According to the law, regardless of which spouse is the owner of the property, both have the right to dispose of the property acquired during the marriage. That is why before the sale of any real estate, the notarized consent of the second spouse to the purchase and sale transaction is required. If there is no such power of attorney, the second spouse will be able to claim his rights to part of the property after registration of the transaction, which will lead to its cancellation.

It is necessary to require such consent even if the spouses are already divorced and do not live together. This does not matter if the apartment was purchased during marriage.

Very often, owners sell housing that they inherited. In this case, the spouse has no right to part of the property. However, other heirs may appear and present their rights. The legal subtleties of registration in this case will depend on how exactly the seller received the apartment.

If the inheritance took place according to a will, and the original is in hand, then no problems will arise - this document determines the order of inheritance and excludes other applicants for the apartment.

If there was no will, and the housing went to the seller by law, then in the future it may turn out that someone else is laying claim to it. For example, all children inherit the parents’ apartment in equal shares, unless otherwise stated in the will. To prevent possible problems in this and other cases, it is recommended to add an additional clause to the purchase and sale agreement and stipulate in it that if other heirs are announced, the seller will solve all financial problems with them personally and transfer to them the portion of the funds received from the sale of the home that is required by law .

However, even in this case, think carefully about whether it is worth getting involved with the inherited apartments, especially if little time has passed since the inheritance. The purchase and sale agreement may violate the rights of the incapacitated parents, spouses, dependents, or minor children of the heir. This means it can be cancelled. In most cases, the owners themselves know about this, which is why they rush to sell, even by lowering the price of the property.

This is important to know: What you need to know when buying an apartment on the secondary market with a mortgage: where to start, procedure, purchase order

Incapacitated citizens and minors registered in the apartment

If we are talking about minors, then the guardianship authorities must give permission for their removal from the housing being sold. Or the children must first be registered in another housing, and only after that they must be registered with the seller. If minors go to an orphanage or other government institution for permanent stay, they retain their share in the parents’ apartment. The same applies to persons dependent on the seller.

Other persons registered in the apartment

If a person is in military service or in prison, he retains the right to live in an apartment. For example, a citizen who received a criminal record in 1995 or later was registered in the housing. Then he was discharged while in prison, after which the apartment was privatized and sold. But after returning, such a person has the legal right to register in the apartment again and move in there to live. The former owner of the apartment will seem to be out of business, since such a person does not have the right to part of the money from the sale. But it retains the right to live in it, no matter who is considered its owner.

The situation is similar with persons who left for military service in the army. Even if the housing was sold during their absence, they have the right to restore their registration and move into the apartment.

If a missing citizen was registered in the apartment, then he will be able to lay claim to it if he suddenly turns up. That is why it is recommended to check the history of all registrations and the fate of previously registered ones - to find out whether they are now registered elsewhere or not.

Officially married

It is important to know that Family Law provides for such a concept as joint ownership of property.
Such property also includes any real estate. As a general rule, all property acquired by spouses during marriage is considered community property. They have the same rights and responsibilities. In this case, it can be issued for any spouse, or for two in certain proportions.

The order of division does not matter, since as long as they live together, they can each own, use and dispose of all property with equal rights, limited by the rights of the second spouse.

The procedure for purchasing an apartment by one spouse may be as follows:

under a purchase and sale agreement with the former owner;
under a share participation agreement in the construction of an apartment building.

There will be no differences between these two types of contracts for the wife if all funds were paid at the time of their marriage.

But there are situations when part of the funds were deposited before the marriage was registered . In this case, during a divorce, the woman’s share in this apartment may be less than half.

But if the registration of the transaction was carried out during marriage, then the wife will have equal rights with the husband.
If a marriage contract is drawn up between a husband and wife, it may provide for the following options for a woman’s rights:

she may have the same rights with her husband on the basis of this contract, and may also have a certain share in this apartment;
the wife’s rights may be partially or completely limited by the contract, and she may also have no share in the property at all;
Certain rights of the wife and the availability of a share can be changed when specific circumstances arise, as specified in this contract.

This document is certified by a notary and one copy is kept with him. Drawing up a marriage contract indicates that the spouses voluntarily entered into this agreement.

In this case, the woman's rights will depend on the presence or absence of a marriage contract. If the contract is not signed or does not govern the relationship, the law always applies.

Depending on this, you need to understand whether the wife has the right to an apartment if the owner of the apartment is the husband.

Mortgage issues

One of the most pressing issues is always the mortgage .
This is due to the fact that most of these loans are issued for long periods of 15-30 years.

And during this time, various family circumstances occur in the family life of many couples. And you need to pay for your obligations.

Besides this, there is also the following problem:

Some banks specifically do not include a wife in the mortgage agreement if she has no income (for example, while on maternity leave). Accordingly, according to the documents, only the husband is the borrower and owner of the property.
If it is necessary to sell an apartment, the mandatory consent of the bank will be required, and it is almost impossible to obtain it, since this property is collateral and the only security for the obligation. Accordingly, in the event of a divorce, the couple will not be able to get rid of the mortgage by simply selling the apartment. Since the question will initially arise about full repayment of the debt and only then about the removal of the encumbrance and the possibility of registering the purchase and sale transaction.
The obligations assumed during marriage will have to be paid in half upon divorce. Although in some cases the court may decide that the spouse left with the child will pay less.

Based on this, we can conclude that the wife will have equal rights to the purchased apartment under the mortgage.

But at the same time, regardless of her direct participation in the mortgage agreement, she will also have obligations to repay this debt together with her husband.
Since their family budget, while they are married, is considered common. However, drawing up a prenuptial agreement before purchasing an apartment with a mortgage can change this situation. It may specify other conditions, rights and obligations.
But the bank must know that a marriage contract has been concluded between the spouses, which stipulates these points.

In this case, the bank may require the spouses to make payments on the mortgage loan based on the conditions specified in the marriage contract.

Maternal capital

Often married couples are faced with a government program under which they receive funds in the amount of 453,026 rubles. Their use is strictly targeted and one of the options is the purchase of housing.

If the purchase of an apartment is carried out with the participation of mortgage funds, then the bank may also not include the wife in the mortgage agreement. But she will have the same rights to the apartment as her husband.

In addition, the home buyer must do the following:

Write an undertaking and have it certified by a notary stating that after full payment of the mortgage loan, shares in the purchased apartment will be allocated to the wife and two children.
This obligation must be deposited with the Pension Fund.
In the future, the Pension Fund regularly checks the fulfillment of this obligation after the mortgage is fully repaid.
If the obligation is not fulfilled within the established six-month period, the violators will be held accountable.

The format of liability can be different, from accusations of fraud to declaring the transaction invalid with its complete termination and reclaiming capital funds through the court.

Be sure to read it! Insult based on nationality: what article and where to apply

Purchasing real estate using family budget funds

When purchasing an apartment or house with the wife’s personal funds or by financing the transaction from the family budget, with the subsequent registration of real estate in the name of the spouse, it will be joint property. In the event of a divorce, the property will be divided on a general basis.

If the apartment has been renovated

A man purchases an apartment before marriage, but after registering the marriage, the woman contributed a significant portion of her personal funds to carry out repair work. As a result, the cost of the apartment has increased significantly. In this case, during a divorce, she has the right to claim compensation, but she will have to prove the fact of participation in the repair work by providing all the necessary certificates and papers.

Sometimes it becomes necessary to use the help of professional appraisers.

The law does not establish strict rules and requirements regarding what repair costs are considered significant for obtaining financial compensation. For this reason, this issue will have to be resolved in court.

Practice shows that the following works are significant:

major repairs;
re-equipping the apartment with engineering equipment;
carrying out redevelopment.

If the court satisfies the woman's claims, she will receive half of the money spent on repair work.

If the woman is registered in the apartment

The husband buys an apartment before marriage, and after registering the family relationship, he registers the woman in the apartment. After the divorce, she has no right to claim a share in the housing, explaining her demands only by the fact that her husband registered her in the apartment. Registration gives the right to use residential premises, and this right disappears upon divorce.

If a woman refuses to leave the living quarters, the husband has the right to go to court and force his ex-wife to be discharged. The maximum a woman can count on is for the court to set a certain period during which she will look for a new place of residence.

Homeowners' rights

The rights and obligations of a homeowner are enshrined in the Housing Code of the Russian Federation. Among them is the right to dispose of your real estate, for example, to sell it. However, without violating the rights of other owners or persons registered in the apartment.

Unscrupulous sellers hide property owners in order to complete the transaction as quickly as possible. But for the buyer, such a rush can result in a long-term legal battle with a person who shows up after the deal is closed.

The owner of the apartment - who is it, how to find out, rights and responsibilities

Last changes: January 2020
Absolute right of ownership, disposal and transfer of property are the main criteria of ownership. An apartment is a separate living space in a house, obliging the owners to comply with the rules of living in society. The owner of an apartment is not an absolute owner, but a person who is obliged to obey legal regulation even if he has an undivided and unlimited right of ownership.

Origin and types of property

From a legal point of view, who is the owner of a residential premises? This is a person who has received ownership of an apartment as a result of legal actions confirmed by title documents:

Bilateral agreements:
donations in the presence of the will of the donor and acceptance of the gift free of charge;
exchange in a barter transaction that involves payment not in cash;
equity participation in making a contribution to the construction and acquisition of housing in the primary real estate market.

Unilateral transactions upon entering into inheritance:
by law due to the order of family ties.

Other legal actions:
payment for a share in a housing or housing construction cooperative.

The above grounds relate to the acquisition of apartments in private ownership. During the USSR, there was exclusively state property. The type of property is a determining factor in who owns the property.

In Russia there are three types of property:

private – transferred by the state during the privatization process or purchased on the secondary market by individuals or legal entities;
municipal and state - differing in terms of who the owner of municipal apartments is - local authorities, and who owns state apartments - the country's authorities.

In addition to property rights, there are restrictions and encumbrances that prevent the completion of a number of legal transactions.

For example, who are the owners in mortgage lending? Formally, these are citizens who purchased an apartment with a mortgage, but the housing is encumbered in the form of collateral from a credit institution until the loan is fully repaid.

The limitation is the impossibility of transferring undivided ownership to third parties for any transactions without the permission of the bank.

Rights and obligations of the apartment owner

The definition of an apartment as a separate structural unit of an apartment building imposes a number of restrictions on use. Rights and obligations in relation to the owner and persons living with him are determined by Articles 30 and 31 of the Housing Code of the Russian Federation. In accordance with Article 30 of the Housing Code of the Russian Federation, the owner of an apartment has the right:

Use housing in accordance with its intended purpose. A caveat should be made that direct purpose means residence and non-use for professional interests. However, clause 2 of Article 17 of the Civil Code of the Russian Federation allows for engaging in entrepreneurial activity provided that:
meeting the requirements for residential premises.

The above restrictions will be observed if the person provides tutoring services, provides accounting or auditing services. The law does not prohibit recording your home address as your place of business.

In addition, clause 3 of Article 17 of the Housing Code of the Russian Federation, the rights of the homeowner do not allow the opening of industrial production in the apartment, the provision of hotel services and use for missionary activities. The Housing Code of the Russian Federation does not impose any other direct bans on doing business.

To rent out for temporary possession to third parties:
legal entities for the accommodation of hired personnel under a lease agreement.

Move in family members. The nuance is that Article 31 of the Housing Code of the Russian Federation does not prescribe who is considered a family member, therefore, apartment owners can move in anyone they want without proof of family ties.

Since an apartment is not a separate room, but a part of a house, the responsibilities of the homeowner relate not only to a specific living space, but cover a range of services that ensure the normal functioning of the property as a whole.

If a citizen is the owner, then, regardless of actual residence or absence, he is obliged to pay:

utilities consumed in the maintenance of not only personal, but also common property;
contributions for current and major repairs of the house;
property management services.

The responsibility of the apartment owner extends from respecting the interests of neighbors to mismanagement of the property. According to Article 293 of the Civil Code of the Russian Federation, if there is destruction of housing or systematic violations of the rights of neighbors, the local government body, after a warning, has the right to petition for the eviction of the owner with the subsequent sale of the property at auction.

Certificates of ownership have been abolished as of mid-2020. The legal successor document was extracts from the Unified State Register of Real Estate, providing information about all property rights holders at a specific point in time.

If a citizen, wanting to sell property, declares: “I am the owner of the apartment,” presenting a pink certificate, then before purchasing he should contact the Unified State Register of Real Estate for an extract.

How can an outsider find out information from Rosreestr? To obtain data, you need to contact Rosreestr or the MFC directly with your passport and order a certificate at the address; there is no need to even have Russian citizenship.

Information about who is the owner of the property with a listing of the share or joint use is indicated in clause 1.1 of Section 2 regarding copyright holders, indicating the full name and share of each. When transferring housing from the state to citizens, four main forms of privatization were used, which imposed restrictions on the rights of owners and allocated specific shares:

Individual property. The owner of the property is the only person registered at the time of privatization or subject to the refusal of the remaining members in his favor.
Shared ownership. The form became widespread during the privatization of communal apartments, highlighting the exact size of the share of each participant in the process.
Common shared ownership. In this case, everyone is a copyright holder in equal shares in accordance with Article 245 of the Civil Code of the Russian Federation.
Common joint property. The form does not highlight individual shares for each person and can be applied to spouses and to a minor child or children.

The certificate will not contain information if the housing is not privatized. But in this case, the owner’s rights are limited. After all, what is the difference between an owner and an owner if not the ability to carry out legally significant actions. An extract from the Unified State Register also contains information about all restrictions and encumbrances.

It is advisable for a prospective buyer to order a certificate of the established form independently in order to check who is the owner of the property, what restrictions the apartment has at a particular point in time and what percentage of the property each copyright holder owns, which is important for making transactions involving legal significance.

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How to check real estate for hidden owners

The easiest way is to check the apartment for hidden owners through lawyers or realtors. A legal examination of the property will reveal all the pitfalls. At the same time, the buyer will be able to make sure that there are no encumbrances on the apartment and other issues that may interfere with the conclusion of the transaction or cause it to be canceled in the future.

You can identify hidden owners yourself. To do this, you need to request an extract from the Unified State Register of Individual Entrepreneurs - it will reflect the entire history of real estate transactions for the period since 1998 (from that moment on, records are kept). The extract will reflect arrests on the apartment, transfers of ownership, prohibitions on transactions, etc. - everything that took place over these years (and this is over 20 years, which is a lot).

You should also definitely contact the passport office and order an extended extract from the house register. You are interested in Form 9 and Form 12. The first will reflect who is currently registered in the apartment, the second will reflect who was registered here previously. The certificate is issued free of charge. You can also order it through the State Services website.

Inheritance or gift

When one spouse receives an apartment by inheritance, he becomes the sole owner, regardless of how it was formalized:

by will;
or by law.

This rule applies in cases where the law or will itself does not provide for ownership by several persons. The second spouse cannot claim this housing if it is not included in the will.

In some cases, testators can bequeath their housing not only to one person, but also to his wife and children . Only in this case will the wife be able to claim rights to the extent that she was granted under the will.

If the husband received the apartment as a gift under the appropriate agreement, then the wife also remains out of work. She will have no rights to such property.

Therefore, if the question arises about whether a husband can donate an apartment without the consent of his wife, then the answer will be positive.

The husband should not receive anyone’s consent if he is the sole owner of such real estate, regardless of whether he acquired this apartment during marriage or at another time.

Be sure to read it! Will for an apartment: pros and cons in 2020

But in all these cases, the following circumstances apply under which the wife can receive a certain share of rights:

If a marriage contract has been drawn up between the couple, which provides for the division of all property in certain proportions, even donated and bequeathed. Then, on the basis of this, the wife has the right, during a divorce, to formalize part of her rights to this housing. Accordingly, when making any transactions with property, the written consent of the wife will be required.
If the wife made significant investments in the apartment, after which its value increased significantly. In this case, the wife can seize part of the husband’s rights to this apartment, and the court will oblige the husband to compensate the wife for these expenses. But it is worth remembering that all expenses spent during family life are divided in half, so only half of them will need to be compensated. This rule applies unless otherwise provided by the marriage contract.
If the husband voluntarily donated a certain share of the apartment to his wife, a corresponding registration entry was made.

In all these cases, the wife will be able to obtain certain rights to the apartment. But in their absence, all inherited property and those received as a gift belong only to the immediate recipient.

What rules must be followed so as not to lose an apartment after purchasing

Having received an extract with the data of everyone registered in the apartment, you need to make sure that each of them has a place to check out. If we are talking about adult citizens, then it is advisable for each of them to take a notarized obligation that he knows about the upcoming transaction and undertakes to deregister at this address within the specified period (14 days).

In the case of the seller's spouse, it is easy to understand whether it is a hidden owner or not. Be sure to require his/her notarized consent to the transaction.

If you want to buy an apartment from an heir, then write in the purchase and sale agreement that he undertakes to personally resolve all property issues with other heirs who may appear.

What should a participant in shared construction/long-term construction do?

Protection of the rights of the shareholder during long-term construction is possible even if the developer was forced to sign an additional agreement to postpone the delivery date of the project.

Basic conditions for protecting interests within the framework of legislation:

legally competent share participation agreement;
the construction company has a state license;
serious legal support.

The right of citizens to go to court is established by the Civil Code of the Russian Federation and enshrined in Federal Law No. 2300-1 (Article 17).

You can use the services of experienced real estate lawyers who will assess the legal position in relation to your specific situation and ensure adequate representation of your interests in all instances: