How to allocate shares to children based on maternity capital: nuances

Allocating a share to children when using maternity capital is considered mandatory if the parents have taken out a mortgage product with funds received from maternity capital. The law was adopted by the state in order to protect, first of all, the child. For example, so that after force majeure in the form of parents’ divorce or their death, one does not end up homeless. Mandatory allocation of a share serves as a kind of insurance against force majeure circumstances. It turns out that government bodies act as defenders of the interests of a citizen who has not reached the age of majority.

• In what case is it necessary to draw up a commitment?
• In what cases is it not necessary to formalize an obligation?
• Features of drawing up an obligation
• Deadlines
• How to correctly determine the share in an apartment?
• What happens if obligations are not fulfilled?
• What documents are required to submit to formalize the obligation?

Allocation of shares in an apartment after purchasing real estate using maternity capital

Maternity capital is a form of state support for families with children. According to statistics, the majority of holders of the relevant certificates decide to use maternal capital to purchase real estate.

Reference! In 2020, the amount of maternity capital is 466,617 rubles.

From the point of view of legislation, MK funds belong not only to its owner, but also to all family members. In this regard, the housing rights of each of them must be ensured when making a transaction using state support funds.

In other words, we are talking about the allocation of shares in the right to real estate. This is required by law.

The simplest way to allocate shares to children is to directly indicate this in the purchase and sale agreement . However, this is only possible in cases where housing is purchased using maternal capital using one’s own funds and savings.

In cases where a family takes out a loan to purchase real estate, it is not always possible to immediately allocate shares to children and this must be done after repaying the mortgage. The same applies to the purchase of housing in an apartment building under construction.

In this case, a written obligation must be drawn up, according to which the owner of the capital undertakes to allocate shares after the removal of the encumbrance or upon acquisition of ownership rights.

The presence of documents confirming the allocation of shares to children, or a corresponding obligation, is necessary for a positive decision by the Pension Fund in terms of satisfying the application for the disposal of MK funds.

Methods for allocating shares

To give children legal shares, you need to use one of the methods that seems most suitable and beneficial to the person:

• gift agreement;
• agreement.

Note! If the persons who used maternity capital funds ignore the requirements of the law on the allocation of shares to children, it will be impossible to dispose of the property. That is, it will not be possible to sell or exchange it until the children receive legal square meters.

What share is allocated to children?

Today, the current legislation does not establish the size of the minimum share that must be allocated in the right to real estate when purchasing it with capital. Accordingly, it is set by the parents themselves.

However, it should be understood that maternity capital belongs to each family member. Accordingly, 466,617/4 = 116,654.25.

Thus, if the cost of an apartment or house is 1 million 116 rubles, then each child can claim a 1/10 share in the ownership. This calculation was given as an example in order to develop an understanding of the distribution principle.

Undoubtedly, family members have the right to independently determine its order and size of shares. However, experts do not recommend allocating too large portions to children. This is due, first of all, to the fact that in the future certain difficulties may arise when selling such real estate.

It has been determined that in transactions involving the alienation of housing owned by minors, the consent of the guardianship authorities is required. An important condition for this is to provide children with a volume of rights that is equal to or greater than those available in the real estate being sold.

In addition, a small share in the future cannot be allocated in kind, which significantly reduces the property risks of the remaining family members.

Is it necessary to allocate shares to children when using maternity capital?

In accordance with clause 4 of Article 10 of Federal Law No. 256, when purchasing or constructing residential premises, parents are required to allocate a share to all minor children, not only those already born, but also those conceived during the period of purchase or construction of housing using the certificate.

In addition to children, their parents claim a share of the living space (subject to an official marriage). But the law does not allow the allocation of a share to other relatives.

Obligation to provide shares

The obligation to allocate a share is a document confirmed by a notary on the mandatory division of rights to own shares of living space between members of the entire family, including young and adult children.

The obligation is sent to the Pension Fund, complete with an application for investing maternity capital funds in improving the level of living conditions. Regulated by the “Rules for the use of maternity capital to improve housing conditions”, enshrined in Decree of the Government of the Russian Federation No. 862 of December 12, 2020.

Before transferring capital by the Pension Fund, in order to guarantee the allocation of shares of living space to minor citizens, citizens must give a written commitment to allocate shares.

A commitment is required in a number of cases:

• If, at the time of acceptance of the application for the use of maternity capital funds to improve the quality of living conditions by the Pension Fund, the living space is not recorded by the state register as the common property of the family. That is, under a residence purchase agreement, not all family members own shared property. If the housing has already been purchased with a mortgage by the owner of the certificate, then it is possible to allocate shares only after being released from the debt encumbrance;
• When concluding an agreement in installments, on the condition that the selling party transfers ownership after the final payment;
• Shared construction of housing - property rights can be recorded only after the object is put into operation;
• When participating in a housing, savings or housing-construction association, state registration takes place upon payment of the final contribution;
• When constructing or recreating a private household, ownership rights can be obtained after the issuance of a cadastral passport for a private household.

If the mortgage is taken out by both spouses or they represent parties to the purchase and sale agreement, then both parents sign the obligation.

To compose the text and register a document, you need to contact a notary office with a complete list of papers, including:

• Certificate holder's passport;
• Documentation of the birth or adoption of children (if available);
• Marriage registration certificate;
• Documents confirming the ownership of real estate, such as an extract from the register for members of a housing association, a purchase and sale agreement, etc.;
• Extract from the Unified State Register of Real Estate (documentation of registration of ownership of real estate);
• Mortgage agreement (if any).

The contents of the document depend on the type of acquisition of residential space:

• Purchase of housing by the owner of the certificate under a purchase and sale agreement;
• Release from mortgage debt;
• When purchasing a place of residence in installments;
• When directing maternity capital funds to recreate or build a private home.

It is also required to register a share of residential property for unborn children. If the spouses plan to have children in the future, then the obligation must contain a clause on the redistribution of shares of owners of residential real estate.

Is it possible not to allocate a share to my husband?

As stated above, both parents have equal rights to all family property, including an apartment purchased with the help of MS. Thus, both husband and wife claim a certain share of the living space, the size of which will depend on the mutual agreement of the spouses.

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Spouses have the right to enter into an agreement specifying the share of each family member and register it with a notary. Moreover, not only the husband, who is a citizen of the Russian Federation, but also a foreigner has the right to a share of the apartment; the only condition is that the marriage must be registered.

But if the mother uses MS after the divorce, then the ex-husband has no right to part of the living space, that is, he cannot claim a share in the apartment.

How to fulfill your maternity capital obligation

After removing the encumbrances from the property, it is necessary to register the ownership of all family members, in accordance with the terms of the obligation. To do this, a title document , which will indicate the shares of each family member. It could be:

• agreement on determining shares;
• gift agreement.

You can draw up this document yourself or by contacting a notary. At the same time, the law obliges the transaction to be certified by a notary if the spouses have the right of shared ownership . Also, if the parts of each family member , including spouses, are determined when registering common property, then a division of common property takes place. According to Part 2 of Art. 38 of the RF IC, such a transaction is subject to notarization.

If shares are allocated to children from a single parent, then notarization is not necessary . And also if there is a marriage contract between the spouses.

If property is transferred from the right of joint ownership of spouses, then one of them can make an alienation in favor of the children. In this case, the notarized consent of the second spouse will be required. However, when disposing of joint property, this consent is implied by default . When registering a transfer of ownership, Rosreestr does not have the right to refuse registration without providing this document.

Rules for the distribution of shares in an apartment when using maternity capital, minimum share

There are no specific standards for the size of parts of the apartment that should be allocated to children after the burden is lifted with the help of maternity capital. However, you can be guided by the norms of the Housing Code of the Russian Federation and local regulatory by-laws. Depending on the region in which the housing was purchased, the minimum share size is from 6 to 12 square meters.

Usually, each family member is allocated an equal share. But it is worth remembering that when subsequent children are born, it will also be necessary to separate part of the housing for their benefit, thereby reducing the area of ​​the shares of other family members.

It is also not uncommon to see an option in which only a portion proportional to maternal capital is allocated to children or the second spouse.

Example. Single mother Kopylova E.Yu. in 2005, I purchased a two-room apartment with an area of ​​60 sq. m. with a mortgage. meters and cost 2 million rubles. She got married in 2006 and gave birth to a second child in 2008, thereby gaining the right to receive and dispose of a family certificate. She decided to use it and pay off the mortgage on the apartment in which her entire family lived. At this moment, the debt to the credit institution amounted to 200 thousand rubles. Kopylova used part of the capital and completely repaid the debt and removed the encumbrance from the apartment.

After that, in accordance with this obligation, she had to determine what share to allocate to her husband and two children. In fact, she could allocate shares to each of only 6 square meters. meters (10% of the total cost of the apartment, which is paid for by maternity capital). However, the woman made a decision and allocated this 1/10 part to her husband, and divided the remaining 9/10 in equal shares between herself and her two children. There are no violations in Kopylova’s actions, since each family member received ownership of housing.

Minimum share size

The minimum size of the share in an apartment based on maternity capital for a child has not been established, but any subject of the Russian Federation has its own standard for the amount of living space per person.

For example, in the Moscow region the norm for living space is 18 square meters per person, in the Perm region - 18, in the Nizhny Novgorod region - 13, and so on. Article 38 of the Housing Code of the Russian Federation sets a standard of 12 square meters, and the minimum sanitary standard is 6 square meters.

The national average for a child's share of family property ranges from 9 to 12 square meters. You should familiarize yourself with the regulations of the subject of your residence and proceed from the established values.

If one of the spouses made a large investment in payment for the purchase, then the share of the real estate that was paid for with maternity capital is divided.

When is a commitment required?

Most often, housing issues are resolved by young families with the help of a mortgage loan, issued in such a way that the spouses simultaneously become joint borrowers and co-owners of the housing purchased with a mortgage.

The loan must be issued to only one of the spouses, otherwise it will not be possible to use the funds.

After the certificate for maternity capital (also called family capital, since it can also be issued to the father) is received in hand, a visit to a public or private notary follows, who would certify the obligation, giving it legal force.

If the family lives in an area where there is no notary, the document can be certified by the head of the settlement administration or another official with authority.

To draw up a contract you need:

• passports of both parents;
• children's birth certificates;
• loan agreement;
• documents for purchased housing;
• certificate for receiving family capital;
• certificate of state registration of ownership.

It is enough to provide copies of the required documents, except your passport.

In the future, the undertaken obligations must be fulfilled, otherwise, if it turns out that the agreement is not respected, the prosecutor's office will file a lawsuit against the owner of the certificate.

Now you need to re-apply to the department of the Pension Fund of the Russian Federation at your residence address to fill out an application about the desire to send the funds received to repay the loan for the purchase of housing.

Employees of the Pension Fund will accept such an obligation along with other documents, subject to certain conditions:

• (third and so on) child was actually born in the family
• a certificate for receiving funds is in hand;
• a certificate confirming the existence of an outstanding mortgage loan is provided;
• availability of living space purchased with a mortgage;
• the entire amount or part of the capital funds is planned for full or partial repayment of the mortgage.

If the obligation is not formalized, the Pension Fund will not allow the allocated funds to be used to repay the debt.

How to allocate a share to children in an apartment purchased with maternity capital in 2020

In order to comply with the requirements of the Law and provide children with part of the living space purchased using family certificate funds, you can use two options:

• conclude an agreement on the allocation of shares;
• draw up a deed of gift for the portions allocated to children.

Despite the fact that both methods do not contradict the rules of law, the first is still preferable, since it is the one that is directly indicated in paragraph 4 of Art. 10 Federal Law No. 256 of 2006.

After the document you have chosen is drawn up, you need to contact the regional branch of the State Register or any office of the State Budgetary Institution “My Documents” (MFC). There, an application is drawn up and after 14 days each family member receives an extract from the Unified State Register stating that he is the owner of part of the residential premises in a certain share.

It is worth noting that parents act on behalf of children under 14 years of age. They certify all documents for them and minors are not required to appear at government agencies. If the child is already 14 years old, then he can draw up and sign the application himself, but the signature of the parents will still be required to certify the documents drawn up by the child.

Required documents

Price

As with any registration of a real estate transaction, you will have to pay a mandatory tax fee. Its size is fixed in Art. 333.33 of the Tax Code of the Russian Federation and in 2020 is 2000 rubles. This amount must be paid by each participant in the transaction, and not by everyone with a total amount.

You can do this in any convenient way:

• through payment terminals;
• through electronic payment systems;
• in cash at the cash desk of any bank.

Deadline for allocating shares

The period allotted by the legislator for fulfilling the obligation to divide an apartment purchased using a family certificate is 6 months from the date of purchase of the apartment or 6 months from the date of removal of the encumbrance from the property.

Important! This moment should not be confused with the date of use of the maternity capital.

Removal of encumbrance - repayment of the mortgage, payment of the last payment in shared construction, commissioning of a residential building. That is, from the moment of using subsidized funds or part of them to the moment the encumbrance is lifted, not 6 months, but several years may pass.

Agreement on the allocation of shares to children (sample)

• date, place of execution of the document;
• name of the document (Agreement of apartment/house owners on the allocation of shares);
• information about the parties to the agreement: full name, date of birth, passport details of parents;
• information about children: full name, date of birth, data on children’s birth certificates;
• data on the purchased property: address, area, number of rooms, number of floors of the building, data from cadastral and technical documents for residential premises;
• type of ownership (joint or shared), size of shares of each owner;
• procedure for purchasing residential real estate (purchase and sale agreement, mortgage, etc.);
• data on the use of the MK certificate (series, number, date of issue, body that issued the certificate);
• a condition on the establishment of common shared ownership of residential premises, on the allocation of shares indicating the size of the share belonging to each family member;
• a condition on the possibility of redistribution (reduction) of the shares of co-owners in connection with the birth of the third, fourth and other children;
• references to Federal Law No. 256 and Articles 244-245, 254 of the Civil Code of the Russian Federation;
• data on the number of copies of the document;
• list of applications;
• signatures of the parties to the agreement.

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The costs that will have to be incurred in connection with the distribution of shares between parents and children include a fee to a notary for certifying a written agreement on the allocation of shares and payment of the state fee for registering the right of shared ownership of real estate.

The procedure for providing a child with a share in an apartment

According to established legislation, the distribution of shares to children must occur within six months after the selling party receives financial resources of maternity capital.

To record the common ownership of residential real estate, it is necessary to present an agreement establishing the size of shares (may include a list of conditions for the division of jointly acquired property) and a gift agreement.

In the event of a dispute between parents about the distribution of shares or evasion of the obligation to allocate a share, the division of shares takes place in court.

If one of the spouses owns the property, then the procedure for dividing the living space is divided into two stages:

1. Living space is shared by spouses under a marriage contract;
2. Shares are distributed among the children.

If both spouses own the home, the children can immediately be given shared ownership. In this case, there are two types of allocation of shares to children: an agreement on the determination of shares or a gift agreement.

Sample agreement

The document must display the following information:

• date and place of document preparation;
• personal data of both parents, their passport numbers;
• personal data of all minor children participating in the transaction;
• address and characteristics of the apartment;
• type of ownership (joint or shared);
• information about the document on the basis of which there is ownership;
• the size of the shares of all family members;
• the conditions under which shares are distributed;
• signatures of the parties;
• signature and seal of the notary.

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How to select shares - methods

After the circumstances preventing the allocation of shares have ceased to apply, parents need to attend to this procedure directly. It can be done either by drawing up an appropriate agreement or in the form of concluding gift agreements.

Drawing up an agreement to determine shares

The agreement is a written document according to which the spouses determine the amount of allocated shares for their children. It is submitted to the registration authority and is the basis for making changes to the Unified State Register. There is no strictly established, unified form of such an agreement.

Donation agreement

A donation is a transaction as a result of which the property or property rights of one person are transferred to another person free of charge. In relation to the situation discussed in the article, the execution of a deed of gift is the optimal option for fulfilling obligations.

It should be noted that a separate agreement must be drawn up for each child, sent to the registration authority for making the appropriate entries in the Unified State Register of Real Estate.

What rules are followed when drawing up an obligation?

Writing a maternity capital obligation can be in a free style or using a special form. An uncertified obligation will not be considered by the Pension Fund.

When drawing up the obligation, the presence of two parents who are borrowers, then become home owners, or one of the parents for whom the loan and family capital was issued is required.

The text of the document contains the assurance of the parents that they undertake to register the housing purchased by them with the help of family capital as the property of themselves and all their children who they have by the beginning of the fulfillment of the obligation within the time limits established by law.

The document is signed with a full explanation of the first name, patronymic, and last name.

Cost of allocating children's share of maternity capital from a notary

In accordance with paragraphs. 5 p. 1 art. 333.24 of the Tax Code of the Russian Federation, the amount of the fee when certifying an agreement on the allocation of a child’s share when purchasing residential premises using the funds of a maternal certificate from a notary is 0.5% of the amount of the agreement, while the state duty must be no less than 300 and no more than 20,000 thousand rubles.

For example, parents bought a three-room apartment for 2 million rubles. In this case, the state duty will be:

2,000,000 x 0.5 / 100 = 10,000 rubles.

But in addition to the certification itself, notaries also perform technical work on drawing up the document, so the amount that parents will have to pay will increase.

To determine the specific amount that you will have to pay for document certification, you need to decide at what cost it will be calculated:

• according to inventory - according to BTI data;
• market - at current market prices in your area;
• cadastral - this option is the most optimal.

You can stock up on several documents assessing the value of a residential property, and subsequently select the assessment with the lowest cost.

What happens if you don’t allocate shares to children based on maternity capital?

Some parents, when using MS to purchase residential premises, do not take into account the interests of minors and do not allocate their shares in the apartment. Is it possible to detect a violation, who is authorized to carry out inspections, and how can violators be punished?

The following have the right to check the correct use of the MS:

• local branches of the Pension Fund;
• guardianship and trusteeship authorities of the municipality;
• district (city) prosecutors.

Of course, such violations when using MS funds, such as not allocating a child’s share, are extremely rare; usually parents take care of their children and take into account their interests.

Consequences, responsibility

Federal Law No. 256 does not explain sanctions for violation of the allocation of children's shares. But, if a violation is detected, a representative of the above listed bodies has the right to file a claim to declare the transaction with residential premises invalid. What are the consequences of such a claim? In cases where the violation is proven in court, the parents will be obliged to return the residential premises to the seller, and the MS funds will be withdrawn from the family on the basis of their misuse.

In addition, violations using MS funds can be classified under Article 159 of the Criminal Code of the Russian Federation as fraudulent. In this case, violators may face punishment from the minimum (fine from 120 tr.) to the maximum (imprisonment for up to 2 years).