Can a spouse write a waiver of an apartment purchased during marriage?

Notarized consent of the spouse for the sale of real estate

In accordance with paragraph 3 of Art.
35 of the Family Code of the Russian Federation (FC RF), in order to formalize a transaction with common real estate made by one of the spouses, the notarized consent of the second spouse for the sale of real estate is required. It should be noted that common property (property owned jointly) as a general rule is property that was acquired during the marriage. Other rules may be established by the prenuptial agreement. For example, in accordance with it, property that was acquired jointly may be recognized as the personal property of the husband or wife, depending on in whose name such property is registered, etc.

As a general rule, the personal property of one of the spouses also includes (Clause 1, Article 36 of the RF IC):

apartments, dachas and other property that belonged to him before the marriage;
real estate and other property received by such a spouse as an inheritance, gift or through other gratuitous transactions.

The consent of the second spouse to dispose of such real estate is not required.

The consequences of disposing of jointly owned property without the notarial consent of the second spouse are enshrined in paragraph. 2 p. 3 art. 35 IC RF. A husband or wife, whose consent has not been obtained, has the right to judicially declare a transaction for the alienation of an apartment, house and other real estate invalid within 1 year from the moment they learned about its registration (for example, the decision of the Industrial District Court of Perm dated July 31 .2017 in case No. 2-1721/2017).

Features of purchasing a share in an apartment in 2020

According to civil law, all citizens are entitled to equal rights. When applied to shared ownership, this rule means that the owner of the share has the right to dispose of it at his own discretion, but in compliance with the interests of the remaining owners.

Discussion of the upcoming sale of the share with the remaining owners If someone decides to buy out the share, then you can do without written notice. In other cases, you should not rely on verbal assurances. It is necessary to prepare an official notice indicating the conditions and price. Receiving a response from the owners. If a refusal is received, you can proceed to finalize the transaction with a third party. Otherwise, you must wait until the end of the month. Search for a buyer if the owners refuse to purchase. Search for a buyer is allowed by any available means (media, real estate agencies, Internet) Agreeing on conditions with the buyer. Once the buyer is found, the terms of sale are negotiated with him. In this case, the conditions must correspond to those specified in the notification. When the buyer insists on changing the terms, he must be prepared to wait a month to receive a new response from the co-owners. In this case, it is quite possible that someone will agree to buy out the share. Conclusion of the purchase and sale agreement. The agreed agreement is signed by the parties. Then the agreement is certified by a notary. Execution of an act of acceptance and transfer. According to this act, the transfer of the share is carried out. The act itself is attached to the agreement. Application to Rosreestr. The buyer submits documents to register the transfer of ownership. The presence of the seller is not required, since the contract is certified by a notary

Notarized consent of the spouse to purchase an apartment

All of the above is also true for purchasing an apartment or other real estate. Notarized consent of the spouse to purchase an apartment is required when it:

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acquired using joint funds;
is issued in the name of one of the spouses.

Lack of consent in the above cases also makes the transaction voidable. The husband or wife, whose consent was not obtained, has the right to file claims for the invalidity of the transaction within 1 year from the moment they learned about such a transaction.

The notarized consent of the spouse for the purchase of an apartment is not required if:

both spouses are buyers;
a marriage contract has been drawn up, which contains conditions for the acquisition of real estate without the consent of the second spouse.

Relinquishment of a share with the participation of maternal capital

I have three children aged 22, 18 and 3 plus a husband. We arrange the purchase of an apartment with the investment of maternity capital. How to renounce the share of all family members, including a minor (3 years old) in favor of a 22 year old child. A 3 year old child was allocated a 1/2 share in another home a year ago.

Interesting read: Do I need a Power of Attorney for a Child in Russia for a Grandmother?

Initially, you can make a purchase in the name of one of the persons, but before receiving maternity capital funds to pay for the purchased apartment, you will need to issue a notarized obligation to the PF to allocate a share in the apartment to the minor and other family members (with the shares determined by agreement) within 6 months after the transfer capital to you, otherwise the Pension Fund will simply not transfer it (clause “d”, paragraph 8 of the Decree of the Government of the Russian Federation of December 12, 2007 N 862, Appeal ruling of the Moscow City Court dated July 12, 2013 in case No. 11-20484/2013)

Rules for obtaining consent

To draw up consent to purchase or alienate real estate you will need:

original passport of the husband or wife - the one who gives consent;
original marriage certificate.

In accordance with clause 25 of the Regulations for performing notarial acts, approved. By order of the Ministry of Justice dated August 30, 2017 No. 156, a notary can establish the presence of a marriage from the Unified Register of Civil Status Records. Read more about this regulatory act in the article “Regulations for the performance of notarial acts by notaries.” Currently, this service is available only to employees of the Federal Tax Service of the Russian Federation and civil registry offices; restrictions should be lifted from 10/01/2018. Before this time, you must submit the original marriage certificate.

It is also advisable to submit documents for the acquired or alienated real estate to the notary so that the notary can check the coincidence of the subject of the agreement for which the spouse’s consent is drawn up with the actual real estate.

The state fee for certification of consent is 500 rubles. (clause 6, part 1, article 333.24 of the Tax Code of the Russian Federation), however, in addition to this, notaries are required to charge a fee for the provision of legal and technical services (see letter of the Federal Notary Chamber dated November 20, 2017 No. 5083/03-16-3). Tariffs for such services are set by regional notary chambers. They can be viewed on the FNP website.

Registration of refusal of a share in a privatized apartment

The renunciation of a share in a privatized apartment must be formalized legally in order to avoid possible negative consequences in the future. Read further in the article about how to renounce a share in a privatized apartment voluntarily, during a divorce, or in favor of a relative (mother, father, son, sister, etc.).

First, you need to obtain a document confirming the citizen’s ownership of a share in a privatized apartment. Such a document is currently an extract from the Unified State Register, which can be ordered on the government services portal, at the MFC, as well as at the registration chamber.

Form and content of notarial consent

The consent form for real estate transactions has not been approved, however, when drawing it up, notaries are guided by Form 2.1 “Certifying inscription for a unilateral transaction”, approved by Order of the Ministry of Justice of Russia dated December 27, 2016 No. 313.

The consent for the purchase or sale of real estate indicates:

place and date of the notarial act;
Full name, passport details, address of the husband or wife - the one who gives consent;
marriage certificate details;
data on real estate for the acquisition or disposal of which consent is given;
consent itself;
conditions for giving consent (if any), for example, the validity period of the document, transaction price, etc.;
information that other conditions for the use of joint property are not established in the marriage contract;
information that the individual giving consent is familiar with the provisions of Art. 34, 35 RF IC;
signature of an individual;
the notary's certification inscription, which contains his full name, the name of the notarial district, as well as information that the signatory's capacity has been verified, his identity has been established, and his consent corresponds to his will.

How to formalize a waiver of a share in an apartment? Legal consultation

You will have to act in almost the same way when it comes to inheritance. A notarized renunciation of a share (in an apartment or other property) under such circumstances is mandatory. However, you can do without registration. To do this you will have to wait six months.

Write a gift agreement. It contains information about the donor and the recipient, as well as about the property that is being presented as a gift.
Collect the documents necessary for the operation: passports of the parties, donation agreement, technical papers for the apartment, certificates of ownership, receipts for payment of duties (if necessary). Documents proving kinship (if available) will also be useful.
Contact a notary with prepared papers. Or you can immediately come to Rosreestr with 3 copies of the agreement.
Sign the deed of gift.
Issue a certificate of ownership in Rosreestr. If citizens acted through a notary, then the authorized person will issue them certified copies of the gift agreement.

Cancellation of notarial consent of a spouse

Cancellation of a spouse's notarial consent is possible due to the fact that such consent is a unilateral transaction and can be canceled or changed. Cancellation (revocation of consent) must also be made in notarial form (Article 156, paragraph 1 of Article 452 of the Civil Code of the Russian Federation). The second spouse and the counterparty must be notified about it before the transaction is completed, the implementation of which was agreed upon (clause 57 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated June 23, 2015 No. 25).

The rules on revocation of acceptance are applied to the revocation of consent by analogy; therefore, a notice of revocation of consent to carry out a transaction, sent after such a transaction is completed, is considered invalid and cannot serve as a basis for declaring the transaction invalid (Clause 1, Article 6, Art. 439 of the Civil Code of the Russian Federation).

***

Thus, notarial consent for real estate transactions is required if the subject of the transaction is real estate jointly owned by a husband and wife. This rule does not apply if the marriage contract establishes other conditions or the subject of the transaction is the personal property of one of the spouses. For example, real estate acquired before marriage or during marriage under gratuitous contracts.

Is it possible to buy a share in an apartment with maternity capital from relatives and how to do it

Purchasing a share of an apartment with maternity capital from relatives in general, and from parents in particular, using funds from the federal program for subsidizing large families, is permitted by law. Most often, this matters when purchasing the remaining part of the selected premises.

Interesting read: Loan for opening a small business in the Republic of Belarus

Since laws and government regulations do not prohibit purchasing from relatives, upon receiving a refusal from the Pension Fund, it is necessary to begin legal proceedings on the legality of such a decision. Most often, the court sides with the person who needs to improve their living conditions.

Preemptive right to purchase a share in an apartment

Important point! An offer to buy out a share in an apartment for co-owners must contain the same conditions (primarily the price) that will be offered to all other buyers. Otherwise, for example, if the co-owners are offered a buyout of a share, say, for 100 rubles, and then this share is sold on the market for 90 rubles, then the co-owners can challenge this transaction on legal grounds.

The pre-emptive right to purchase a share of an apartment is the right of co-owners (co-owners) to buy a share in the apartment from their neighbor before he sells it to anyone else on the side. The same applies to a separate room in a communal apartment. Let us explain in more detail.

17 Dec 2020 uristland 230

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Relinquishment of a share in an apartment based on maternity capital

Moreover, according to the legal position of the court, children’s right of ownership of housing arises regardless of state registration of rights. Previously, it was believed that the acquisition of residential premises using maternity capital funds does not entail the unconditional emergence of ownership rights to it by persons not specified in the contract as the purchaser. Despite the position expressed by the Supreme Court, there has been no change in the approaches of the courts to resolving the issue of the possibility of refusing to exercise the right to participate in determining shares in the right of common shared ownership of residential premises, which can be seen from the decision of the Valuysky District Court of the Belgorod Region dated October 13, 2020 in case No. 2a-1059/2020 [4], upheld by the appeal ruling of the Belgorod Regional Court dated January 12, 2020.

The plaintiff, independently disposing of her right, indicated her reluctance to acquire a share in the ownership of the house, refusing to conclude the relevant transaction. The court came to the conclusion that, for the reasons stated above, this refusal does not contradict the law. In connection with the release of a review of judicial practice in cases related to the implementation of the right to maternal (family) capital, approved by the Presidium of the Supreme Court of the Russian Federation on June 22, 2020, a completely opposite opinion has formed in the scientific literature, based on the literal interpretation of the legal positions expressed in this review . In accordance with the review, a property acquired (built, reconstructed) using maternity capital funds is in the common shared ownership of parents and children.

Can a suarug refuse in advance a share in a quarter purchased with mat capital?

The Pension Fund claims that when buying an apartment with mat capital, all family members must be included in the share, but the husband does not want to have a share there and wants to write a refusal at the notary since he already has a share, can he renounce it in advance or must he first include in the share and then he will refuse?

Therefore, I believe you are obligated to fulfill this obligation. However, there is no direct liability for the failure to allocate a share to the spouse. However, there is a danger that the spouse’s right to a share in the purchased housing will be recognized in court. But only if he himself demands the allocation of his share. Moreover, you understand that now the husband thinks this way, but in a couple of years he may begin to think differently. Or, God forbid, the worst thing happens to him, and his heirs will be able to demand that his share be included in the inheritance. And then it will be impossible to do without a trial. And this is wasted time and money.