The barter agreement is one of the most ancient civil law agreements, which preceded the purchase and sale agreement. According to its terms, each party undertakes to transfer ownership of one product to the other in exchange for another (Clause 1, Article 567 of the Civil Code of the Russian Federation).
Parties to the agreement may be persons who have ownership or other rights to property. Each party is recognized as the seller of the goods that it is obliged to transfer, and the buyer of the goods that it undertakes to accept in exchange.
Article on the topic Giving away an apartment for free: how to properly draw up a gift agreement?
How to draw up an agreement?
The exchange agreement can be concluded either in simple written form or through a notarized document. The document must specify the rights and obligations of the parties, the term of execution of the contract and the terms of the contract.
The form of the agreement can be oral in the case of:
- if the price of exchange between citizens is less than 10 minimum wages;
- if the contract is executed upon its conclusion.
In all other cases, the agreement must be concluded in writing (Articles 152-162 of the Civil Code of the Russian Federation).
Question answer
What responsibilities do notaries have?
The concept of an exchange agreement
Definition 1
A barter agreement is a special form of legal agreement between citizens, upon the conclusion of which both parties undertake the obligation to transfer certain property to each other.
Features of the exchange agreement:
- An exchange agreement is always mutual, compensated, and economically equivalent.
- Any legally capable and able-bodied legal and physical persons and public legal entities may participate in an exchange agreement.
- Without exception, all participants in the exchange agreement must have ownership or any other property right, which includes the power to dispose of the subject of the agreement (trustee). There is the possibility of participation in a transaction by an entity that is not the owner, in the event of an exchange of property during the execution of a commission agreement, the party to the agreement for the exchange of the subject of the agreement is the commission agent, who is authorized to act on his own behalf (Article 990 of the Civil Code). An agent acting on instructions on his own behalf on the basis of an agency agreement (clause 1 of Article 1005 of the Civil Code) has the same powers to conclude an exchange agreement.
- All parties involved are considered sellers in relation to the subject of the contract being sold and buyer in relation to the goods to be received. By purchasing an item from a counterparty under an exchange agreement, each party becomes its owner. But in some cases, there are exceptions provided for by law or the contract itself, when the subject of the exchange agreement does not acquire ownership rights to the subject of the contract.
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The subjects of legal relations include: state and municipal enterprises that have the right of economic management, management of the property and institutions assigned to them. When concluding contracts, such institutions acquire a limited property right over the property received in exchange for that which was transferred to the counterparty, in the event that the specified legal entity becomes the owner of the goods.
Elements and contents of an exchange agreement, sample
When drawing up the DM, it should be remembered that the subject is an essential condition of the contract. The absence of individual characteristics in the contract that make it possible to clearly define the transferred property leads to the fact that such an agreement is recognized as not concluded (resolution of the Administrative Court of the East Siberian District dated January 20, 2017 in case No. A33-29818/2015). Here are the main attributes of DM:
- place of compilation and date;
- names of the parties and details of their representatives;
- the subject of the contract, namely a specific description of the goods being transferred;
- obligations of counterparties to transfer the property described above;
- duration of duties;
- the moment of transfer of ownership and the risk of accidental death (if it differs from those established by law);
- addresses, details and signatures of counterparties.
An example of such an agreement can be viewed at the link: .
What is the difference
Agreement of barter and exchange
For the average person, the words exchange and barter have the same meaning. But what they have in common is not only the root. Both transactions are considered barter. What unites them is the possibility of its use both within one locality and between different cities or towns. And although exchanging housing or changing it may seem like a tautology, from a legal point of view these concepts are more different than similar.
Barter agreement
- Nature of the right: the property is owned
- Basis - Civil Code - Chapter 31.
- Registration procedure Registration in Rosreestr, re-issuance of the certificate of ownership for the new owner.
- Possibility of additional payment Yes
Exchange agreement
- Municipal property.
- Legal basis of the Housing Code of the Russian Federation, Art. 72.
- Registration of the transaction in Rosreestr, conclusion of a rental agreement with new residents, who also do not have the right to dispose of real estate.
- No payment option
ATTENTION. It is impossible to conclude a deal where the owner gives up real estate and receives a municipal facility in return.
Exchange and offset of mutual claims
In legal practice, there is another type of agreement. It also contains the homogeneity of the exchanged objects. Only in this case, the parties, having obligations under different agreements, come to a decision to take them into account and remove the issue of debt to each other. Then the question arises: if it is possible to exchange apartments, then why not pay off the obligations in a similar way? However, the law has its own view on such transactions. So what's the difference?
No. Sign Barter agreement
- Subject of exchange - Owned property.
- Reason for the transaction To satisfy emerging needs by purchasing goods
- Number of concluded contracts One
Settlement of mutual claims
- The subject of exchange is mutual obligations under the contract
- The debtor does not have money to speed up or simplify payments for both parties.
- Two agreements (in one the company is a debtor, in the other - a creditor), and an act with the signatures of both parties or a statement from one of them.
FOR REFERENCE. Civil Code of the Russian Federation Article 410 makes it possible to remove the obligation in whole or in part by means of offsetting mutual claims.
Contract of exchange and purchase and sale
It is generally accepted that the barter agreement is the older brother of the purchase and sale agreement. But lawyers call it a simplification of two similar procedures: offsetting monetary obligations under counter-purchase agreements in one document. This similarity makes it possible to apply the same rules to both categories of agreements. But the law still draws a line between them due to the following differences.
Barter agreement
- How is the value of the subject of the contract measured? Goods, additional payment is provided only in case of unequal value of the goods exchanged.
- Status (role) of the parties to the agreement. Both parties are both seller and buyer.
- The moment of obtaining rights Simultaneously, during the mutual transfer of goods to each other.
Contract of sale
- 1 Monetary value only.
- One side is the seller, the other is the buyer.
- During the transfer process, it is not related to the fulfillment of payment obligations.
FOR REFERENCE. The specifics of the contract for the purchase of goods are contained in Chapter 30 of the Civil Code of the Russian Federation.
Final provisions
7.1. This agreement comes into force from the moment of its state registration and is valid until the Parties to the agreement complete their obligations under it.
7.2. The parties to this agreement agreed that the residential buildings they exchange are not of equal value and that, in accordance with the mutual agreement reached, Party 1, before registering the transfer of ownership of the residential building belonging to Party 2, pays the latter the difference in the cost of residential buildings in the amount of [in figures and in words] rub. in the manner determined by the Parties at their own discretion.
7.3. From the moment of transfer of ownership rights to the residential buildings mentioned above, the Parties assume the burden of paying real estate taxes, costs of repair, operation and maintenance of residential buildings and the surrounding area.
7.4. This agreement contains the entire scope of agreements between the Parties regarding the subject of this agreement, including the notarized consent of the spouse of each of the Parties, a document on the consent of the local guardianship and trusteeship authority for the alienation of residential buildings, which are an annex and an integral part of this agreement; cancels and invalidates all other obligations or representations that may have been accepted or made by the Parties, oral or written, prior to the conclusion of this agreement.
7.5. Each of the Parties has the right to leave in the exchanged residential premises certain unnecessary household items and furnishings, which the other Party can dispose of at its own discretion.
7.6. The parties have no claims to the technical and sanitary condition of the exchanged residential buildings.
7.7. The agreement is drawn up in three copies having equal legal force, one of which is kept by Party 1, the second by Party 2, and the third by the body carrying out state registration of rights to real estate.
Barter deal
Advice from lawyers:
1. There was a deal with the administration to exchange the old one for a new one, but they gave the new one with a debt.
1.1. I understood the housing and communal services debt correctly.
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2. I cannot make a house exchange transaction.
2.1. Dear Irina! You didn’t write anything to answer - what house, whose it is and how old you are. So rewrite your question. And tell me who forbade you.
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2.2. “Civil Code of the Russian Federation (Part Two)” dated January 26, 1996 N 14-FZ (as amended on May 23, 2018) Article 567. Barter agreement 1. Under an barter agreement, each party undertakes to transfer one good to the ownership of the other party in exchange for another. 2. The rules on purchase and sale (Chapter 30) are applied to the exchange agreement, if this does not contradict the rules of this chapter and the essence of the exchange. In this case, each party is recognized as the seller of the goods, which it undertakes to transfer, and the buyer of the goods, which it undertakes to accept in exchange. THE SUBJECT OF THE AGREEMENT OF EXCHANGE CAN BE A HOUSE. If you have any questions, you can call.
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3. What is the difference between an exchange agreement and a barter transaction?
3.1. The legislation of the Russian Federation does not provide for the conclusion of barter transactions; barter is a term used in foreign economic transactions.
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4. I have a significant share in the apartment in common shared ownership. I propose to exchange this share for a separate apartment under an exchange agreement (free transaction). Is the consent of other co-owners required for an exchange agreement? If so, how do you create a priority right of repurchase offer for them? Thank you.
4.1. Hello Since this is a gratuitous transaction, an exchange agreement, the requirement for the pre-emptive right of Other owners does not apply, and there is no requirement for another owner to offer to purchase such property, since this is not a sale and purchase (Article 250 of the Civil Code of the Russian Federation)
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4.2. Hello. According to Article 250, Part 5 of the Civil Code of the Russian Federation, you must also comply with the preemptive right of the other owner and their consent is not necessary. Notify them in writing about the exchange, indicating the conditions under which you will conclude the transaction and invite them to exercise their pre-emptive right.
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5. I propose to exchange the apartment under an exchange agreement. If I understand correctly, this is a gratuitous transaction and is not joint property. However, this exchange is not equivalent, I propose to require additional payment. The question is, is the surcharge considered joint property? If yes, then what is the best way to arrange the additional payment so that it is not considered joint property? And so that this is not a hidden deal that can be protested? Thank you.
5.1. All property acquired during marriage is joint property. The deal is contestable. Money too.
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5.2. The surcharge is joint property. To avoid division, you can conclude a marriage contract, or draw up a contract of exchange for another person, and then re-register it for you by donation.
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5.3. If there is an additional payment, this additional payment will be a jointly acquired part.
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6. Interested in exchanging an apartment for a larger one using mat capital. I see answers on the site that this can be done. But local realtors tell me that only under sales and purchase agreements with an additional payment of MSK (the second child is already 3 years old). Tell me how this transaction is formalized from a documentary point of view, will the Pension Fund of the Russian Federation accept the exchange agreement?
6.1. Yes it is possible. You draw up an exchange agreement. Maternity capital is sent directly to the seller. You need to contact the pension fund with a package of documents, a registered exchange agreement, an extract from the GAME, to submit an application for the disposal of Moscow time funds.
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7. I have 1/2 share in the apartment. I want to exchange with my sister for her summer cottage with a house. What is the best thing to do if the second owner of the apartment may not agree to the transaction. And how to avoid taxes. What is better to draw up a gift agreement, an exchange agreement or a purchase and sale agreement?
7.1. Draw up two agreements: an agreement for donating a share of a house and an agreement for donating a dacha with a plot of land. The right of pre-emption does not apply to donations.
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7.2. In accordance with Art. 250 of the Civil Code of the Russian Federation, the pre-emptive right to buy out a share by a co-owner also applies when alienating a share under an exchange agreement. So, if there are fears that the second owner will buy out the share, or if you don’t want to bother with a notice (offer) of sale/exchange, it is best to draw up a gift agreement. According to Art. 217 of the Tax Code of the Russian Federation Income received as a gift is exempt from taxation if the donor and donee are
family members and (or) close relatives in accordance with the Family Code of the Russian Federation (spouses, parents and children, including adoptive and adopted parents, grandparents and grandchildren,
full and heterogeneous (having a common father or mother) brothers and sisters
) So that you won't have to pay tax.
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7.3. Such an exchange - a share in an apartment for a dacha - is illegal. Not provided for registration in Rosreestr. All you have left is a gift agreement or a purchase and sale agreement.
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8. Question about relocation from emergency housing, I own a 1/2 share of an apartment with a minor son, the city administration gives us a good comfortable apartment, but my ex-husband does not give his consent to the exchange agreement with a notary, he says that this is for us too good, and that we would be homeless, he doesn’t want us to get an apartment. What should I do and where should I go to get us resettled without his consent?
8.1. Good afternoon First of all, you need to obtain the consent of the guardianship authority. They will call your ex-husband there and may refuse to issue a permit. You can appeal the refusal of guardianship in court, where you can also file additional claims against your ex-spouse. Since the interests of the child are affected and the agreement must be completed by the administration, the chances of success are practically one hundred percent. But you need to decide whether you need the help of a lawyer.
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9. Father changes apartment 2 x room. For 1 room In the exchange agreement, the second apartment (I quote verbatim) belongs by right of ownership in equal shares to each son Androsov A.B., and daughter-in-law Androsova E.G. I have a question: why are the initials of the second son not indicated, and then in other clauses of the contract only Androsov A.B. is indicated. and Androsov. D. that they are the owners of the property in equal shares. Where did I (the eldest son) end up? Can I challenge the deal and declare it invalid?
9.1. You need to apply for a face-to-face consultation with documents, since the terms of the transaction are not clear from the question.
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10. My name is Ekaterina. My minor daughter is the owner of an apartment of 60 m2, when we divorced my husband, we gave her our shares. Now I want to sell this apartment and buy 130 m2. My ex-husband is stubborn and won’t give permission. Will the guardianship authorities approve the deal without his permission?
10.1. Good afternoon As far as I understand now, you are the main guardian of your daughter, your daughter lives with you in this apartment. The husband is the father, but not the guardian or the owner. Correct me if I'm wrong. The result is that you, as the owner and/or representative of the minor owner, act in your and her interests, namely, you sell the apartment and buy another one. The guardianship authorities will give consent if the daughter’s new apartment has the same house meters as here.
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11. Claim for the exchange of real estate of adults without the consent of the father. I live with children in Sochi (we are buying a house in Sochi in the shared ownership of minors), we are selling (by agreement) a room in the shared ownership of minors in St. Petersburg, my ex-husband does not consent to the deal. I can’t come to St. Petersburg for the hearings, will the court consider the claim in the absence of the plaintiff and representatives?
11.1. If you send a request for consideration in your absence, it will consider it.
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11.2. Good afternoon. It is necessary for the plaintiff to submit an application with a request to consider the statement of claim in his absence and indicate that you insist on the claims. If this petition is not received by the court and you and your representative do not appear, the court, with the consent of the defendant, may leave your application without consideration. Sincerely, lawyer E.N. Pugacheva
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12. What is the best way to formalize a real estate transaction in order to minimize the tax under a gift or exchange agreement or sell for a minimum price and transfer the missing price in cash?
12.1. If not relatives, then according to practice there is no way. There are pros and cons and big risks everywhere. Depends on the specifics.
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12.2. In black cash, and if something goes wrong, you will return the money as indicated in the contract and draw up a competent contract for the entire donation and register it through the MFC.
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13. I want to exchange my room for an apartment 1 km away, there is actually a person for the exchange. Is it necessary to pay tax on an exchange agreement if the transaction is mutually assessed as equivalent, and the residence and ownership of the property is more than 5 years? The room is 20 sq. m., and the apartment is 33 sq. m.
13.1. In this case, if the property has been owned for more than 5 years, there is no obligation to pay personal income tax, the price is no longer important.
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14. I’m selling an apartment, a potential buyer offers his car + additional payment. I don’t even know what to do. I want to sell the car in the future, but how can I avoid getting into trouble, what if the car is pledged, etc.? I read information that this transaction can be completed in 2 ways - 2 purchase and sale agreements or an exchange agreement, which is better to choose? Will I need to pay sales tax in this case (option 1) if the apartment was inherited?
14.1. It is better to arrange 2 transactions. Tax is payable if the property has been owned for more than 3 years.
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15. I want to sell my apartment. In hand is a Certificate of Registration of Property Rights and an Exchange Agreement. The apartment was acquired when she was a girl, no one is registered. Are these documents plus the agreement (3 copies) sufficient to complete the transaction at the MFC?
15.1. Good afternoon Yes, of course, a certificate of ownership is sufficient.
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16. The court made a decision to recognize the purchase and sale transaction of an apartment as invalid (void) and to apply the consequences of a void transaction. While the trial was ongoing, the apartment was alienated under an exchange agreement and Rosreestr registered the transfer of rights. Now Rosreestr does not comply with the court decision and has suspended registration actions to bring the situation existing at the time of filing the claim. What should I do?
16.1. Sue the new owners for the return of property. If a transaction is declared invalid, then subsequent transactions also have no legal force (Article 168 of the Civil Code of the Russian Federation). To prepare a claim, contact specialists.
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17. We want to exchange our plot of individual housing construction (owned) for a car, using an exchange agreement. Do all parties to the contract need to go to Rosreestr to complete the transaction? Or can it be like this: we give the documents to the site and exchange exchange agreements, and they give us: DKP, STS, PTS, car keys?
17.1. When registering the transfer of ownership, both in Rosreestr and in the State Traffic Safety Inspectorate, both parties must be present.
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17.2. Good afternoon, in this case we are talking about the transfer of rights to real estate; within the framework of the law, such transactions are subject to state registration in Rosreestr, please contact the nearest MFC.
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18. Is it possible to carry out a transaction of donation, or exchange (or purchase and sale) of a share in an apartment on behalf of a minor, if the legal representative of the child and the recipient of the share are close relatives?
18.1. It is possible, with the consent of the guardianship and guardianship authority. Without them, it will not be possible to dispose of the property of a minor.
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19. I bought an apartment before marriage, now I want to exchange it for another through purchase and sale in order to receive a tax deduction. But I'm married now. How best to formalize the deal so that in the event of a divorce my husband does not lay claim to my apartment. An exchange agreement will not give the right to a tax deduction.
19.1. A marriage contract signed by a notary.
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20. The apartment is jointly owned by the spouses, shares are not allocated. We would like to carry out a transaction for the exchange of apartments, with the transfer of ownership of the new apartment, also into the joint ownership of the spouses. I am the title owner. How is this condition stated in the exchange agreement? Or is it not registered at all?
20.1. Not registered. The current legislation implies joint property of spouses.
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My teenage son has 1/4 share in the living room. We want to sell it, giving him a share in the house, a new private one.
We need to exchange houses under an exchange agreement, but the other party is not yet ready to pay in full for the entire registration, i.e.
The actual transaction for the exchange of apartments was formalized by purchase and sale agreements. The participants in the transaction are ready to confirm. How to prove that such an apartment is not subject to division?
We want to exchange her 2-room apartment (which she recently inherited) with friends.
My mother and I are the owners of an apartment in an apartment building, this house was included in the emergency housing program.
If I am the owner of the apartment under the exchange agreement dated October 10, 1997, do I need to register ownership for the purchase and sale transaction?
Is it possible to prove in court that a loan agreement is an exchange transaction between a bank and an individual? face.
We were included in the program for relocating dilapidated housing, but the administration demolished our house after work began on the transfer of new housing,
There is a court decision where it forms the guardianship authorities to issue permission for the exchange transaction (1/2 of a land plot and 1/2 of a residential building)
The notary refuses to formalize the EXCHANGE transaction (exchanging living space with my ex-husband)
The apartment was changed from 2 to 3 rooms with an additional payment. I already received a tax deduction before from another transaction.
Characteristics and features of an exchange agreement under the Civil Code of the Russian Federation
In Art.
567 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code), an exchange agreement (hereinafter referred to as DM) is understood as an agreement under which counterparties undertake to exchange things. As a rule, the value of such transferred goods is recognized as equivalent. If things are not of equal value, an additional payment in monetary terms is established. Note! The provisions on purchase and sale apply to DM (clause 2 of Article 567 of the Civil Code). In this case, each of the counterparties must fulfill the obligations of both the seller (for the transfer of quality goods) and the buyer (for accepting the goods from the counterparty or paying the difference in the prices of things).
According to its main characteristics, DM is:
- consensual, because it is considered concluded from the moment agreement is reached on essential terms;
- bilateral, because each party has rights and obligations;
- aimed at transferring property (included in this group along with purchase and sale agreements, leases, etc.).
