Buying an apartment by proxy - risks. Ukraine 2020

Summary

1. I want to buy an apartment with a mortgage in another region, but there is no opportunity to travel yet.
Can I issue a power of attorney for a purchase to a friend who is in that city? 1.1. Hello, yes it is possible. The power of attorney must be executed by a notary. Using it, your friend can register everything you need in your name.

2. My niece is a resident of Ukraine. She received an inheritance, a room in a communal apartment in Moscow. She made a power of attorney for me to “accept the inheritance and manage all documents.” Now we want to sell this room, but we don’t know who else is registered in this apartment. One room belongs to the city and is sealed, the other is inhabited by a tenant. Question - how can I send letters of first refusal to purchase to the owners. Thank you.

2.1. You can take an extract from the Unified State Register of Real Estate, or send it to apartments by registered mail with notification. No response is equivalent to a refusal.

3. My grandmother is planning to move from another city to live with me. Her apartment will be sold, after which a new one will be bought in my city. Since we live far away at the moment, I plan to buy a new apartment. Tell me, is it possible to draw up such a power of attorney under which I could purchase an apartment for my grandmother in her name? And the second question, can she draw up a power of attorney in her city using a photocopy of my passport? Thank you.

3.1. Hello! Yes, of course, the answer to both questions is yes. Article 185 of the Civil Code of the Russian Federation.

3.2. Hello. That's exactly how it's done. The power of attorney specifies what actions the principal (grandmother) entrusts to his representative (you). The original passport of the representative is not required when drawing up a power of attorney, and a copy is just useful - to check the correctness of the data, so as not to redo the power of attorney later.

4. My wife and I decided to buy an apartment in another city and decided that she would be the owner. The seller of the apartment has children in his share. The transaction must take place with the natary. The seller purchases a new apartment using a mortgage. The seller’s lawyer insists that I, as a spouse, give a notarized power of attorney to my wife to purchase an apartment.

4.1. Apparently, this does not mean a power of attorney, but a notarized consent of the spouse to the purchase. Yes, indeed, if a transaction is subject to mandatory notarization, such consent is necessary.

Clause 3 Art. 35 RF IC For concluding a transaction by one of the spouses

When disposing of property, the rights to which are subject to state registration, a transaction for which
a mandatory notarial form
, or a transaction subject to mandatory state registration, it is necessary to obtain the notarized consent of the other spouse.

4.2. Hello, Alexander Leonidovich, The spouse’s consent to purchase an apartment is a document that guarantees that the transaction will not be challenged by the spouse who did not personally participate in the purchase. Good luck to you!

5. My wife and I decided to buy an apartment in another city. We decided that she would be the owner of the apartment. Do I need a power of attorney to conduct any transactions? Can she entrust the deal to buy an apartment to our daughter?

5.1. Sozontov Alexander Leonidovich! Your wife has the right to acquire property without your consent. It will still be the common property of the spouses without a marriage contract. In order for your daughter to complete the transaction, your wife must give her a notarized power of attorney to purchase an apartment in her name.

Reasons for concern for the selling party

The main risk on the part of the mortgage seller will be that the authorized representative disappears with the amount of funds received and does not transfer it to the seller. Most often, the paperwork for the license is drawn up in the name of some close relative, or an authorized person who conducts the transaction. Most often this is a realtor. A sample compilation can be found on specialized websites.

ATTENTION !!! It is impossible to guarantee that one or another person will fulfill all the conditions. A document certified by a notary fully provides unlimited opportunity without any nuances. You can prove that you are right by challenging the actions of a trusted person, in the case when he is responsible for the offenses committed, and you know where he now lives. In practice, there have been situations when he simply disappeared, and financial resources disappeared into nowhere for no known reason. And this can happen for the selling and buying representative.

Therefore, it is best not to save money during registration and create only a general power of attorney, guaranteeing the correct, from the legal side, outcome of the current situation. If a power of attorney is drawn up, then you need to monitor the correctness of the entire procedure and the progress of the steps of the two parties. In this case, the selling party has the right to intervene at any time and complete the procedure itself.

It is impossible to completely abandon such a mechanism. Such manipulations have happened and will continue to happen, despite the risk. If you are not sure about a particular issue, then it is best to turn to an experienced lawyer for help. He will help you and give you answers to your questions.

In addition to this, there are now some methods for protection:

• You can write down the power of attorney at the end of its expiration date.
• A power of attorney can be declared invalid through a court.
• Do not create a document with unlimited possibilities. It is best to designate specific actions.
• Do not issue a power of attorney to receive payment.
• Do not issue a power of attorney to draw up a conclusion on a transaction.

Selling an apartment in another city by proxy

Good afternoon Is it possible to sell an apartment in another city with a power of attorney issued to the parents? There are 4 shares in the apartment: 1/3 mine, 1/3 my spouse, the rest is divided into 2 shares of minor children. All owners agree that the apartment is being sold to purchase housing in another city. I'm the only one registered there. What is needed for this?

Answers from lawyers (3)

• 8.0 rating
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You need to contact a notary to draw up a power of attorney.

• 10.0 rating
• 4656 expert reviews

To do this, you need to contact a notary and draw up a power of attorney with the appropriate powers.

“Civil Code of the Russian Federation (Part One)” dated November 30, 1994 N 51-FZ (as amended on July 3, 2016) (as amended and supplemented, entered into force on October 2, 2016) Civil Code of the Russian Federation Article 185. General provisions on the power of attorney (as amended by Federal Law No. 100-FZ dated 05/07/2013) (see text in the previous edition) Positions of the highest courts under Art. 185 of the Civil Code of the Russian Federation >>> 1. A power of attorney is a written authority issued by one person to another person or other persons for representation before third parties. 2. Powers of attorney on behalf of minors (Article 28) and on behalf of incapacitated citizens (Article 29) are issued by their legal representatives. 3. Written authority to carry out a transaction by a representative may be presented by the represented directly to the relevant third party, who has the right to verify the identity of the represented and make a note about this on the document confirming the authority of the representative. Written authorization for a representative of a citizen to receive his deposit in a bank, to deposit funds into his deposit account, to carry out transactions on his bank account, including receiving funds from his bank account, as well as to receive correspondence addressed to him in a communications organization may be presented directly to the bank or telecommunications organization. 4. The rules of this Code on powers of attorney also apply in cases where the powers of the representative are contained in an agreement, including in an agreement between the representative and the represented, between the represented and a third party, or in a decision of the meeting, unless otherwise established by law or contrary to the essence of the relationship . 5. If a power of attorney is issued to several representatives, each of them has the powers specified in the power of attorney, unless the power of attorney stipulates that the representatives exercise them jointly. 6. The rules of this article accordingly apply also in cases where a power of attorney is issued jointly by several persons.

Is it possible to buy an apartment by proxy?

Buying an apartment by proxy from the buyer is an excellent solution for those who, for some reason, do not want or cannot deal with the registration themselves . Meanwhile, purchasing a home is a responsible step, and not everyone can be entrusted with such a task . After all, often a trusted person not only contracts to draw up documents for you, but also to find an apartment, and even bargain for it. To ensure that a power of attorney transaction does not become your mistake, we will analyze in detail what a power of attorney is, to whom and how it can be issued.

Notary is not a panacea: not all information is verified

• consider a power of attorney, which must be drawn up on official letterhead, must have a number, the signature of a state representative and a period of validity;
• find out from the notary whether the power of attorney is valid and make sure that you understand everything correctly in this document;
• request an extract from the Unified State Register and carefully study the entire history of the proposed apartment in order to understand how many times it has been sold recently;
• do not try to save on someone else’s taxes and be sure to indicate in the contract the actual amount paid upon purchase, and also keep a document confirming its transfer.

If this is not the first change of ownership in the last three to five years, this should be alarming. The sales chain, which makes it possible to confuse the story as much as possible, also applies to the schemes used by scammers.

Many people believe that engaging realtors will minimize risks. This is true if you contact a reputable company with an impeccable reputation, whose representatives are ready to tell potential buyers about the risks of such operations and take an active part in checking documents. But it happens that unlucky realtors deliberately get involved in fraudulent schemes.

If the agent is nervous, is clearly in a hurry to conclude the contract, tries to influence psychologically and in every possible way prevents direct contact with the seller, it is better not to deal with him anymore and look for another property.

What is a power of attorney

A power of attorney is a document by which one person transfers part of his powers to another. The reasons why a power of attorney may be issued are varied. For example, it is necessary to carry out certain actions that are better entrusted to a professional so that the result is predictable. A power of attorney is always drawn up in writing, and if it concerns real estate, it is certified by a notary .

You can entrust the purchase of a home to another person if:

• you live in another city;
• your health condition does not allow you to personally handle registration;
• There is simply no time or desire to deal with paperwork.

Usually, the purchase of an apartment by power of attorney is entrusted to a realtor or a relative - the future co-owner.

How to issue a power of attorney to purchase an apartment

The document is drawn up personally by a notary according to the following algorithm:

• you provide a document on ownership of the selected apartment (this document will be provided by the seller), your passport and the passport of your authorized representative;
• explain the purpose of the power of attorney - purchasing an apartment in your name (it is better to clarify the address of the apartment, the number of rooms and the price);
• pay the state fee;
• The notary gives you a document on a special form.

You can see the power of attorney for the purchase of an apartment here , a sample.

Instead of a notary, in some cases the power of attorney can be signed by:

• commander of a military unit (if the buyer is a military man, an employee of a unit, or lives in a closed military town);
• the head of a military hospital or sanatorium (or his deputy, or the doctor on duty, if the buyer is a military serviceman and is undergoing treatment);
• head of the colony (if the buyer is still in prison);
• director or head physician of a nursing home, boarding school or other social security institution (if an adult capable buyer is located there).

The notary must include the following conditions in the document:

• where and when the power of attorney is drawn up;
• passport details of the buyer and the trustee;
• purpose of the power of attorney;
• for how long the document is issued;
• Is it possible to entrust the purchase to a third party?

Buying without communicating with the owner is a risk for the buyer

There may be two options for issuing a power of attorney (according to the composition of powers):

1. to perform all actions necessary for the purchase of an apartment by an authorized person (the so-called “general” power of attorney);
2. only for the conclusion of the Sale and Purchase Agreement and for registration of the transfer of ownership in Rosreestr.

In the first case, the Buyer (principal) allows the authorized person (attorney) to perform any actions that he deems necessary to purchase an apartment in the name of the principal. A general power of attorney for the purchase of an apartment allows the authorized person to independently choose an apartment, negotiate the price and terms of the transaction, check documents, handle money, transferring it to the Seller, conclude an Apartment Sale and Purchase Agreement, register the transaction in Rosreestr and sign the Transfer Deed.

Then the text of the power of attorney uses the following phrases:

• — I trust you to buy an apartment in Moscow and register it in my name...
• — buy an apartment at a price and on terms at your own discretion...
• - I grant the right to be my representative in all institutions and organizations...
• - perform all necessary actions, including transferring money..., etc.

In general, the power of attorney gives complete carte blanche for any type of action related to the purchase of an apartment. This option is possible, for example, when a power of attorney for the purchase is issued to the head of the family from the rest of the family members, or from one spouse to another.

In the second case, the Buyer entrusts the authorized person with only a couple of technical actions, due to the fact that he himself cannot come to conclude the contract. Here the Buyer has already chosen an apartment for himself, agreed on the price and terms of the transaction (including mutual settlements), but sent his representative to sign the contract.

Then the phrases in the text of the power of attorney will sound differently:

• — I trust to buy an apartment (exact address)…, at a price (exact price)…
• — I authorize you to sign the apartment purchase and sale agreement and the transfer deed...
• — register ownership in my name.

Here the authorized person has a very limited range of powers and can only perform those actions that are directly and unambiguously indicated in the power of attorney. This option is usually used when the Buyer planned to complete the transaction on his own, but due to some force majeure circumstances (injury, hospital, urgent call to Kolyma, etc.) he is forced to entrust the completion of the transaction to another person.

For example, an authorized person, in collusion with the Seller, can purchase an old, cheap apartment in the Buyer’s name, instead of a new and expensive one. At the same time, the funds under the transaction are transferred to the Seller as for an expensive apartment.

The buyer risks that his money will not be spent exactly as he expected. And he will no longer be able to challenge the purchase of an apartment made by proxy on this basis.

In addition, a trusted person may, even without malicious intent, due to carelessness or legal illiteracy, confuse some details of the assignment. As a result, the Buyer (principal) will have those legal consequences of the transaction that he did not expect.

What is the recommendation here for the Buyer{q} If the matter does not concern intra-family trust, then unless absolutely necessary, you should not issue a power of attorney (especially a general one) for such a serious matter as buying a home. Especially to strangers (including agents).

At the same time, power of attorney for registrars when purchasing an apartment is a common market practice. This often happens, for example, in alternative transactions, when a package of documents for several apartments at once is assigned to be registered (by proxy from all participants) to one executor, for example, a realtor or lawyer. Here the Buyer risks practically nothing, and such a power of attorney for registration will not cause him any harm.

In other cases, when registering a power of attorney for the purchase of an apartment on the part of the Buyer, he himself should think about the following questions:

1. The scope of powers transferred to the trustee (what exactly to entrust and what to limit the trustee);
2. Choosing an apartment (who selects options and who determines the final price);
3. Choosing a payment method for the transaction (who and how transfers money to the Seller);
4. Signing the Apartment Purchase and Sale Agreement (who formulates the terms of the transaction and draws up the agreement);
5. Registration of the transaction in Rosreestr and acceptance of the apartment according to the Transfer Deed (who will physically accept the apartment and sign the deed).

Even if the power of attorney for the purchase of an apartment turns out to be “fake” (fake), invalid or revoked at the time of the transaction, and this fact is revealed after registration, the transaction will be declared invalid, and the Seller will again become the owner of his apartment.

Therefore, we can say that the Seller in this case risks almost nothing.

By the way, a power of attorney for the purchase of an apartment can be declared invalid for the same reasons for which a power of attorney for sale is considered invalid (more about this in the link).

Professional support from a lawyer in matters of purchasing a home is NOT superfluous. Find legal advice on real estate and transaction support HERE.

A detailed algorithm of actions when buying and selling an apartment is presented in the interactive map STEP-BY-STEP INSTRUCTIONS (will open in a pop-up window).

If, when asked about the owner, his location and the possibility of a meeting (or video conference on record), the representative begins to become noticeably nervous or, on the contrary, in a confident tone says something unclear and, in principle, unverifiable, it is worth looking for another housing option or, at least, involving a lawyer , so he could “dig deeper.”

Many offer Skype communication, but you must be sure that you are dealing with a specific person. It will be better if he shows the original passport and clarifies the nuances associated with the history of the apartment. It is better to conduct the conversation in the presence of a lawyer.

We suggest you familiarize yourself with: Sample characteristics of the defendant

Stories that there is already a queue of other buyers lined up for this apartment, which is being sold at a reasonable price, can be safely ignored. Such housing is sold with great difficulty, and this is the reason for the significant discount. Numerous calls and active demonstration of this very queue may be nothing more than a staging.

According to Article 188, a power of attorney can be revoked at any time. The trusted person is sometimes not even notified of what happened. All the interested party needs to do is seek the help of a notary and tell them about their desire.

Beware, scam

If you plan to purchase an apartment by proxy, there are risks on the part of the buyer of meeting with unscrupulous realtors. Here are the most common mistakes made by trustees:

1. Usually there are a lot of people in notary offices, so neither the notary nor his assistant will always be able to distinguish real documents from fake ones. As a result, it may turn out that you draw up a power of attorney, transfer money to a trusted person, and in the end you will be left without money and without housing. Tip: pay the seller in person!
2. A trusted person can buy you an apartment with a dowry - rented or mortgaged. Then you may become a debtor to the bank or an eternal rent payer. Advice: request a recent extract from Rosreestr for the apartment - it indicates all encumbrances .
3. The seller may be more than one owner, but only a joint shareholder. This means that you can become the owner of not the entire apartment, but only part of it. Advice: look at the same extract - who is the real owner of the apartment, is he the only one, is there consent to the sale from the seller’s wife/husband .

This will protect you from another type of fraud . For example, a preliminary agreement is concluded only when the property right has not yet been registered, for example, in the case of registration of an inheritance. As a result, after the transfer of money, legal heirs may appear and demand the return of the apartment.

Purchasing an apartment by proxy from the buyer only then will not cause you trouble if:

• trusted - a reliable, trusted person (look at reviews on the Internet, ask your friends);
• you will at least somehow control the purchase (require an extract from the Unified State Register, a draft purchase and sale agreement);
• You will transfer the money personally to the seller.

What documents will be needed

To issue a power of attorney for the sale of an apartment, a large list of documents is not required. Only the passports of the principal and the authorized representative are required. The remaining information is recorded from the words of the property owner. But lawyers advise taking property documents with you to avoid providing inaccurate information and the consequences associated with it.

To complete the purchase and sale transaction itself, a standard package of papers is required, only the power of attorney itself and the representative’s passport are added. You need to prepare the following:

1. Passport of the authorized person.
2. A copy of the apartment owner's passport.
3. Documents establishing the owner's right to property.
4. Extract from the Unified State Register of Real Estate.
5. Cadastral passport.
6. A certificate confirming the absence of debts.
7. A document certifying the absence of encumbrances.

If the seller is officially married, approval of the transaction by the second spouse is required. Consent is drawn up in writing and attached to a package of papers.