Buying and selling are considered the most popular real estate transactions, but sometimes an exchange becomes the best option for both parties. When a person wants to get housing with similar parameters in another area or city, an exchange agreement helps to quickly resolve the issue without performing unnecessary steps. This operation has its own characteristics that require compliance in order for the document to comply with legal norms.
Basic characteristics of the exchange
An agreement for the exchange of residential premises is used for the exchange of housing between owners. This type of agreement is enshrined in the relevant law. A special feature of the operation is that each party acts as a seller and a buyer at the same time. The Civil Code gives owners the rights and obligations to transfer and accept objects.
It is important to know! The exchange of housing is determined by Article 567 of the Civil Code of the Russian Federation, the basic rules are set out in Chapter 31.
Compared to the purchase and sale of premises, the rules are somewhat different. The parties must comply with all the rules of purchase and sale that do not contradict the essence of the exchange; this rule is separately stipulated in the article to prevent controversial situations. Regulation of issues is carried out according to a legislative act, which describes in detail the principle of the transaction.
The search for equivalent housing does not always give results; exchange can be of two types:
- no additional payment if both properties have equal parameters;
- with an additional payment if apartments or houses have different prices.
Requirements for form and content
The contract for the exchange of residential premises is drawn up in free form, it is possible to write it by hand or type it on a computer. The agreement must contain the signatures of both parties. Notarization is not a mandatory requirement, but can be done if desired. They resort to the services of a notary when they want to ensure the correctness of the drafting and certification. After the signatures of the parties, the agreement comes into force.
Hiring a specialist will help you avoid mistakes, but the simplicity of drawing up the contract allows everyone to cope with filling it out. The document contains the following information:
- information about the owners who resorted to housing exchange (full name, passport details, actual place of residence);
- subject of the agreement (information about residential premises, apartments or houses involved in the operation); rights and obligations of the parties to the contract;
- date of the exchange;
- procedure for action in the event of difficult situations, including force majeure;
- procedure for making additional payments (if required);
- signatures of the parties to the agreement.
Maternity capital can be used as an additional payment; an exchange with improved living conditions (for example, an increase in the number of rooms) meets the rules for providing state support to families with a second child. It is necessary to accurately enter data into the contract so that regulatory authorities have no reason to find fault with the execution.
Important! Without an unambiguous description of the property, the contract becomes void and loses legal force.
Forced exchange and protection of the interests of certain categories of citizens
The exchange of residential premises can be either voluntary or compulsory. As for the first option, in this case it was possible to obtain consent from all co-tenants who live in the same territory as the primary tenant.
Forced barter occurs only if it is not possible to reach an agreement between family members.
In such situations, Art. 76 Housing Code of the Russian Federation. This legal norm states that any subject of legal relations (who is a party to a social tenancy agreement) who has reached the age of majority may demand a forced exchange of an apartment or other living space. In this case, the decision is made by the judicial authority, which takes into account all the circumstances of the case.
However, voluntary or forced exchange of social rented housing should not infringe on the interests and rights of any of the parties to the agreement. In particular, the interests of incapacitated and minor citizens who are direct parties to the social rent agreement must be protected. In such situations, in order to make an exchange, it is necessary to obtain additional consent from the guardianship and trusteeship authorities.
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Rights and obligations of the parties
The process of transfer of rights is carried out instantly after signing. The persons participating in the exchange must transfer the object within the agreed time frame in the form described in the contract. If these requirements are violated or there is no receipt of the established additional payment, the party has the right to demand cancellation of the agreement. The contract is canceled if one of the objects is seized by third parties under collateral or other obligations of the property owner.
The Civil Code stipulates the possibility of exchanging an apartment with a mortgage. It will be possible to move to another residential complex, but obligations to the bank will remain in full. The agreement may specify differences between the rights and obligations of the parties. These differences will be valid if they do not contradict current regulations.
Features of the operation
The contract itself is not subject to state registration, but the right to the received object should be registered with the authorized body. Only after this action has been completed do property rights become valid. To apply to Rosreestr, an appropriate set of documents and papers are prepared confirming the completion of the exchange transaction.
There are the following reasons for declaring a transaction invalid:
- lack of legal capacity of one of the parties;
- lack of confirmation of the transaction from the guardianship authorities (if the transaction was made against the interests of the owner who has not reached the age of majority);
- erroneous description of one of the objects;
- a fictitious transaction entered into to cover up another transaction or to evade taxes.
It is important to know! If the parties are not ready to carry out the exchange now, but plan to do so in the future, a preliminary agreement is concluded. Such an agreement becomes protection against sudden refusal or demands for additional payment. If a minor owner takes part in the transaction, the legal representative signs on his behalf. The legality of actions related to the activities of persons under 18 years of age is monitored with special attention by regulatory authorities.
Exchange is possible between any type of property, including those registered under a social tenancy agreement. In this case, both real estate objects should not be privatized, otherwise the law prohibits the execution of an exchange agreement. Exchange allows you to quickly solve your housing problem. It is processed faster than selling an apartment, searching for a new one and completing its purchase. An exchange agreement saves time and money; when planning a move, this option for real estate transactions becomes preferable for a number of reasons.
The procedure for exchanging residential premises
As noted by S.M. Korneev, “the exchange of residential premises is a rather complex institution of housing law, closely related to its other institutions. It can be considered as one of the elements of the subjective right of the tenant of a residential premises - the right to exchange. The exchange can also be interpreted as one of the cases of changing the housing legal relationship of renting a residential premises or even as its termination”[1]. However, the scientist agrees with the widespread opinion in the legal literature that the exchange cannot be completely subsumed under any of these cases[2].
It seems that the exchange of residential premises must be considered from different positions.
First of all, the right to exchange residential premises is a subjective right of the tenant in a social rental agreement for residential premises, which is included in the scope of his powers for the limited disposal of residential premises. Currently, this right of the employer is regulated by Art. 72-75 Housing Code of the Russian Federation. Yes, Art. 72 of the RF Housing Code establishes the right of a tenant under a social tenancy agreement to exchange the occupied residential premises for another residential premises located in another house or apartment. This right of the employer has been analyzed in sufficient detail in the legal literature[3].
The Housing Code of the Russian Federation establishes new rules for the exchange of residential premises, which is why it seems necessary to consider the right of the tenant to exchange.
According to the previously existing housing legislation, the procedure for exchanging residential premises was regulated by Art. 67-74 Housing Code of the RSFSR, as well as the Instructions on the procedure for the exchange of residential premises, which was approved by Order of the Minister of Public Utilities of the RSFSR dated 01/09/1967 No. 1213. In accordance with these norms, the subjects of the exchange agreement could be tenants of residential premises, as well as members of housing construction cooperatives.
P.V. Krasheninnikov o[4].
So, I.B. Martkovich pointed out the inadmissibility of an exchange between the tenant of a residential premises and the owner, as well as between the owner and a member of a housing construction cooperative[5].
On the contrary, V.F. Maslov, despite the fact that the legislation in force at that time did not provide for an exchange between the specified subjects of housing legal relations, allowed the possibility of its commission[6].
After the adoption of the Law of the Russian Federation “On the Fundamentals of Federal Housing Policy,” the range of this legal relationship increased, since this Law allowed for the possibility of a so-called “multi-level” exchange of residential premises between the tenant of the residential premises and the owner of the residential premises. Thus, Art. 20 of the Law of the Russian Federation “On the Fundamentals of Federal Housing Policy” allowed for the possibility of exchanging residential premises between entities that use residential premises on various legal grounds (on the basis of ownership, on the basis of membership in a housing or housing-construction cooperative, on the basis of a rental agreement for residential premises) . In this regard, a number of scientists recognized the right of the tenant in a commercial lease agreement to exchange residential premises[7].
At the same time, P.V. Krasheninnikov pointed out that “the inclusion of such entities in Art. 20 of the said Law occurred due to a misunderstanding, since, unlike other persons specified in this norm, a commercial lease (lease) agreement is fixed-term. In addition, it should be borne in mind that Ch. 35 of the Civil Code of the Russian Federation “Residential tenancy agreement” does not contain any indication of the possibility of an exchange between tenants of residential premises living on the basis of a commercial tenancy (lease) agreement in houses of state, municipal and public housing funds”[8].
It should also be noted that Art. 20 of the Law “On the Fundamentals of Federal Housing Policy” established that a party to an exchange agreement may be a tenant (in modern terminology, “a tenant in a commercial rental agreement for residential premises”) who uses residential premises in state, municipal, and public housing stock. Thus, in our opinion, it was impossible to assert that any tenant in a commercial lease of residential premises has a subjective right to exchange residential premises, which were provided to him for temporary possession and use. In this regard, Yu.K. Tolstoy o[9].
It should also be pointed out that the mechanism for making an exchange between the owner of a residential premises and the tenant at the federal level has not been normatively defined. That is why individual subjects of the Russian Federation established the procedure and rules for the exchange of residential premises between the specified participants in the housing legal relationship independently.
It is also necessary to point out that in the legal literature a distinction was made between exchange agreements between owners and the exchange of residential premises, in which only one of the participants in the exchange was the owner of the residential premises.
P.V. Krasheninnikov proposed distinguishing these transactions according to three main criteria:
"1. In this case, both parties (both individuals and legal entities) are the owners of the property. When exchanging, the parties are always individuals, and at least one of the parties is not the owner of the residential premises.
2. When exchanging, the parties are guided by the Civil Code of the Russian Federation, and when exchanging, along with the Civil Code of the Russian Federation, relations are regulated by the Housing Code of the RSFSR, the Law of the Russian Federation “On the Fundamentals of Federal Housing Policy” and regulations adopted by the constituent entities of the Federation.
3. These transactions have different procedures for execution…”[10].
Currently, the RF Housing Code establishes a fundamentally different subject composition of participants in an exchange agreement. In accordance with Art. 72 of the Housing Code of the Russian Federation, the exchange of residential premises is possible only between tenants of residential premises who use residential premises under a social tenancy agreement. In the legal literature, this provision of the RF Housing Code has caused criticism. So, A.A. Titov believes that “the new order generally worsens the situation of citizens compared to the previously effective legislation, since it significantly limits the rights of citizens regarding the exchange of residential premises”[11]. O.I. also holds a similar position. Belonozhkina, who is still at the stage of discussing the draft Housing Code of the Russian Federation, o[12].
It appears that these judgments are not unfounded. It seems that in this situation not only the interests of the tenant of the residential premises under a social tenancy agreement and his family members are infringed, but also the rights and legitimate interests of citizens who are the owners of the residential premises. In accordance with paragraph 2 of Art. 209 of the Civil Code of the Russian Federation, the owner has the right, at his own discretion, to take any actions in relation to his property that do not contradict the law and other legal acts and do not violate the rights and protected interests of other persons. As noted by P.V. Krasheninnikov, “both concepts speak of certain boundaries within which the owner, at his own discretion, owns, uses and disposes of the property belonging to him”[13]. Restrictions on the possession, use and disposal of residential premises, according to P.V. Krasheninnikov, can be of three types: legislative (limits established by federal legislative acts), judicial (restrictions caused by the contestability of the right to housing) and contractual (conditioned by agreement of the parties).
It seems that in this case there are legislative limits that limit the powers of disposal of the owner of the residential premises. The already mentioned Law of the Russian Federation “On the Fundamentals of Federal Housing Policy,” which has now lost force, in Art. 20 established that when making an exchange between the owner and the tenant of residential premises, the owner, by virtue of the concluded agreement, transferred ownership of a specific material object - residential premises, but acquired the rights and obligations of the tenant for another residential premises. It seems that the establishment of legislative limits in this case is unjustified. Of course, a positive point is that from the number of entities entitled to exchange residential premises, the Housing Code of the Russian Federation excluded the tenant of residential premises under a commercial lease agreement. As already noted, this is due to the fact that the commercial lease agreement is of a fixed-term nature. However, in order to protect the rights and interests of participants in housing legal relations, it is necessary to provide the right to exchange residential premises between entities that use residential premises on various legal grounds: under a social tenancy agreement for residential premises, on the basis of ownership, on the basis of membership in a housing or housing -building cooperative. In addition, it seems that the Housing Code of the Russian Federation must clearly regulate the procedure for making this exchange.
The current Housing Code of the Russian Federation has excluded the possibility of carrying out the so-called “related exchange”, which was previously regulated by Art. 70 LCD RSFSR. A distinctive feature of such an agreement was that the subject of exchange could be part of the living space, namely a room, including a non-isolated one, as well as part of the room that fell to the share of the participant in the exchange, who moved out of the living space, and to his “place” another citizen moved in as a member of the tenant's family. It was the existence of this norm that was the basis for the assertion that the exchange of residential premises does not always lead to the termination of housing legal relations and the emergence of others. So, Yu.K. Tolstoy o[14]. Thus, according to the scientist, the exchange cannot be completely subsumed under either cases of change or cases of termination of housing legal relations. In addition, Yu.K. Tolstoy pointed out that when an exchange is forced, that is, made against the will of the participants in the exchange, the exchange should also be considered as one of the ways to protect housing legal relations.
It seems that due to the fact that the Housing Code of the Russian Federation does not provide for the possibility of making a related exchange, it is not necessary to say that the exchange of residential premises can lead to a modification or transformation of the housing legal relationship. The exchange of residential premises, carried out in accordance with the requirements of current legislation, should be considered as the termination of some housing obligations and the emergence of new ones.
Thus, at present, only isolated residential premises can be the subject of exchange, namely: a residential building, apartment, isolated rooms or a room. As under the previous housing legislation, the common areas of the apartment cannot be an independent object of exchange: the kitchen, the corridor, the pantry, as well as the common property of an apartment building.
The legal and factual basis, the main prerequisite for concluding an exchange agreement between tenants of residential premises, is obtaining the consent of persons whose housing rights and interests the exchange may have a significant impact on. First of all, these are family members of the tenant of the residential premises, including those who are temporarily absent. The expression of will of these persons must be in writing. At the same time, the consent to the exchange of these citizens, as well as the tenant of the residential premises, since within the meaning of the law, the initiative for the exchange can come from any legally capable user of the residential premises, is conditional. This conclusion can be made in accordance with paragraph 3 of Art. 72 of the RF Housing Code, which provides that in the absence of agreement on the exchange, the exercise of the corresponding power is possible on the basis of a court decision. Thus, the Housing Code of the Russian Federation, like the previously existing housing legislation, allows for the possibility of a forced exchange in the case where “family consent” has not been reached between the permanent users of the residential premises. If there is a court decision on forced exchange, the exchange agreement is drawn up despite the objections of the persons who refused to consent to the exchange, that is, against their will[15]. When considering a dispute about the exchange that arose between the tenant of a residential premises and members of his family, the court must take into account, in accordance with paragraph 3 of Art. 72 of the Housing Code of the Russian Federation, worthy of attention are the arguments and interests of persons living in the exchanged residential premises.
The previously existing Housing Code of the RSFSR contained a similar norm, namely Art. 68. It seems that at present, when considering the forced exchange of residential premises, one should be guided by the Resolution of the Plenum of the Supreme Court of the USSR “On the practice of applying housing legislation by courts” dated 04/03/1987 No. 2[16]. The clarification of the highest judicial body indicated that when considering cases of forced exchange of residential premises, courts should carefully check whether the arguments and interests of family members living in the exchanged premises deserve attention. At the same time, the arguments and interests of the family that deserve attention, which should be taken into account by the court in such cases, should be understood as the presence of circumstances that impede them due to age, health, etc. use residential premises provided in exchange.
Thus, when the exchange of residential premises is forced, that is, carried out on the basis of a court decision, a civil procedural (judicial) act is also included in the legal composition. As noted by B.M. Gongalo, “in some cases, civil procedural acts may be part of ... the legal composition, in others they are a mandatory element of it”[17]. It seems that in this case the judicial act is a necessary legal-factual basis, which is included in the complex legal composition necessary for the desired legal consequences.
A positive aspect in regulating this legal relationship should be the fact that the new housing legislation seeks to maximally ensure and protect from violations during the exchange the housing rights of minors, incapacitated and partially capable citizens. The Housing Code of the Russian Federation provides that the exchange of residential premises in which these citizens live is permitted only with the consent of the guardianship and trusteeship authorities, who are given the right to refuse the exchange if it is established that the proposed exchange violates their housing rights. However, as practice shows, guardianship and trusteeship authorities often unreasonably refused to carry out transactions with residential premises. Of course, a refusal to give consent can be appealed in court according to the general rules of civil proceedings, however, it would be advisable to provide an indication of this also in the Housing Code of the Russian Federation.
The next legal and factual basis, a prerequisite necessary for the conclusion of an agreement for the exchange of residential premises, is the consent of the landlord of the residential premises. The previously existing Housing Code of the RSFSR in Art. 67, as well as the Law of the Russian Federation “On the Fundamentals of Federal Housing Policy” in Art. 20, did not make the possibility of concluding an exchange agreement dependent on the consent of the owner of the residential premises or a person authorized by him, that is, the landlord. Does this mean that the current Housing Code of the Russian Federation makes it difficult for the tenant of the residential premises to exercise his authority? It seems that this question should be answered negatively, since in accordance with paragraph 4 of Art. 74 of the RF Housing Code, the lessor has the right to refuse the parties to carry out an exchange only in cases where there are obstacles established by the legislator to its completion, namely, conditions when the exchange is not allowed. An exhaustive list of such conditions is established in Art. 73 of the RF Housing Code and is not subject to broad interpretation.
I would like to note that, compared to the previously existing Housing Code of the RSFSR, these conditions have undergone some changes. Thus, the current Housing Code of the Russian Federation has excluded from the list of conditions under which the exchange of residential premises is not allowed an indication of the mercenary or fictitious nature of the transaction. It seems that this is a positive point, since at the stage of concluding the exchange agreement it was not possible to accurately determine that this transaction was being carried out by the parties without the intention of giving rise to certain legal consequences.
Thus, the current Housing Code of the Russian Federation protects the interests of exchange participants, as it excludes arbitrary abuses on the part of the lessor. In addition, in this case, in accordance with the clear instructions of the Housing Code, the landlord’s refusal to give consent to the exchange of residential premises can be appealed in court. Thus, there is no reason to say that the new housing legislation has increased administrative barriers to citizens exercising their powers. The landlord’s consent to the exchange of residential premises can be characterized as “conditional consent”, which is binding on the counterparty only within the limits of this conditionality.
Persons participating in the exchange are also in administrative and legal relations with housing authorities, therefore the latter exercise control over agreements on the exchange of residential premises in order to eliminate the possibility of circumventing the provisions of the current housing legislation.
Article 73 of the Housing Code of the Russian Federation also excludes the basis that, according to the previously in force housing legislation, prevented the exchange of residential premises, such as the deterioration of the living conditions of one of the parties, as a result of which citizens became in need of improved housing conditions. Does this mean that the Housing Code of the Russian Federation provides an opportunity for participants in housing legal relations to abuse their rights? It seems that there is no basis for such a conclusion, since in this case it is necessary to apply Art. 53 of the Housing Code of the Russian Federation, which establishes negative consequences for persons who deliberately worsened their living conditions. These citizens can be registered no earlier than five years from the date of committing actions that worsen their living conditions. In addition, in this case, clause 8 of Art. 57 of the Housing Code of the Russian Federation, which establishes that when providing a citizen with residential premises under a social tenancy agreement, actions and transactions with residential premises are taken into account, the commission of which led to a reduction in the size of the occupied residential premises or to its alienation for at least five years.
Thus, if citizens who can be recognized as low-income in the prescribed manner or are already registered as those in need of residential premises, deliberately make an exchange in order to worsen their living conditions in order to obtain a living space of a larger area, then it seems correct to allow them to carry out the indicated actions.
However, as a sanction for committing these actions, persons who deliberately worsened their living conditions cannot claim to be provided with housing on social rental terms for at least five years. It seems that these norms are aimed at protecting public interests and are designed to prevent abuse in the housing and legal sphere.
It should also be recognized as a positive thing that the RF Housing Code regulated in detail in Art. 74 procedure and execution of an agreement for the exchange of residential premises.
In characterizing the established procedure, two points should be particularly emphasized:
- an agreement on the exchange of residential premises between tenants must be concluded in writing by drawing up one document signed by the parties;
- a period is established during which the landlord must give consent to the exchange or a reasoned refusal to exchange residential premises, as well as a period during which the parties involved in the exchange of residential premises must conclude social tenancy agreements for the residential premises in which they move into result of a perfect exchange. The specified periods should not exceed ten working days.
These rules seem to be aimed at protecting participants in housing legal relations and are designed to prevent abuses both on the part of landlords and on the part of persons participating in the exchange. Nevertheless, I think, clause 5 of Art. 74 of the Housing Code of the Russian Federation must be supplemented with the following norm: “If, within the specified period, citizens who have received the consent of each landlord to exchange residential premises have not concluded a social tenancy agreement for the residential premises in which they must move in by way of exchange, then the exchange agreement residential premises is insignificant."
An exchange of residential premises made between tenants is a civil transaction; therefore, the exchange may be declared invalid on the grounds provided for by civil law for invalidating a transaction, including if it was made in violation of the requirements of housing legislation. At the same time, the Housing Code of the Russian Federation, regardless of the defect for which the agreement for the exchange of residential premises is declared invalid, establishes other legal consequences than those provided for by the Civil Code in the event of the transaction being declared invalid. The legal consequence of the invalidity of the exchange agreement is the relocation of the parties to the residential premises that they occupied before the exchange. Thus, the RF Housing Code does not provide for such consequences as unilateral restitution and non-admission of restitution.
[1] Russian civil law. In 2 volumes. Volume 2.: Textbook / Answer. ed. E.A. Sukhanov. – M., 2011. P.471
[2] Tolstoy Yu.K. Decree. Op. P.64
[3] See, for example: Russian civil law. In 2 volumes. Volume 2.: Textbook / Answer. ed. E.A. Sukhanov. – M., 2011. P.473
[4] Krasheninnikov P.V. Housing law. – M., 2011. P.224
[5] Martkovich I.B. Decree. Op. P.211
[6] Maslov V.F. Protection of personal rights of citizens. –Kharkov, 1970. P.163
[7] See, for example: Russian civil law. In 2 volumes. Volume 2.: Textbook / Answer. ed. E.A. Sukhanov. – M., 2011. P.473
[8] Krasheninnikov P.V. Housing law. P.227
[9] See: Civil law: Textbook. Part II / Ed. A.P. Sergeeva. – M., 2011
[10] Krasheninnikov P.V. Housing law. P.232
[11] Titov A.A. Commentary on the new Housing Code of the Russian Federation (item-by-item). – M., 2005. P.89
[12] Belonozhkina O.I. Grounds for changing the social tenancy agreement. – Saratov, 2004. P.13
[13] Krasheninnikov P.V. Housing law. P.42
[14] See: Civil law: Textbook. Part II / Ed. A.P. Sergeeva. M., 2011. P.245
[15] Russian civil law. In 2 volumes. Volume 2.: Textbook / Answer. ed. E.A. Sukhanov. – M., 2011. P.475
[16] Collection of decisions of the Plenums of the Supreme Courts of the USSR and the RSFSR (RF) on civil cases. –M., 1994
[17] See: Gongalo B.M. Change in housing obligation. Current problems of housing law. Collection in memory of P.I. Sedugin. –M., 2004. P.47
