Purchasing a share from a relative with mutual consent
The purchase of a share of an apartment from co-owners-relatives, with the consent of the parties, occurs in the usual way on the basis of a purchase and sale agreement with subsequent state registration of property rights. The package of documents is also usual:
•purchase and sale agreement (3 copies);
•copies of documents confirming the identity of the parties;
•title documents;
•extract from the BTI;
•extract from the house register;
•notarized consent of the spouse.
At the same time, the law does not define the actual period within which the transaction must be carried out after confirmation of intention within a month in response to the notice.
Property rights of spouses to an apartment during a divorce
In the event of divorce, material values become the subject of disputes. One of the most expensive and desirable objects is an apartment. According to the law, property acquired during marriage is the joint property of the spouses (Article 34 of the RF IC, Article 256 of the RF Civil Code). In case of divorce, the distribution of acquired material wealth is regulated by the provisions of family, housing, and civil law. The possibility of division depends on how the apartment was acquired by the owners.
Privatized apartment
Shares in an apartment received from the state free of charge, in other words, “privatized,” may belong to one or both spouses.
If the husband privatized housing before marriage, the wife cannot claim a share. Also, it will not be possible to receive part of the property into ownership if the apartment was privatized in the name of one person, and others issued a refusal.
There is only one way to get out of the situation: prove in court that expensive improvements were made to the apartment through joint efforts, increasing the value of the property, or the second spouse did not bring income to the family and did not spend money on maintaining the housing in proper condition (Article 39 of the RF IC) .
In the case of privatization of an apartment for 2, 3 or more persons, everyone becomes the owner of a share. After a divorce there is nothing left to divide, everything is predetermined. A wife can buy her husband's property by following the established procedure.
Purchased apartment
Real estate acquired under a purchase and sale agreement in a registered marriage belongs to the husband and wife. If a woman does not have an independent income, this does not deprive her of the opportunity to own jointly acquired property.
By default, husband and wife have equal rights to real estate - ½ apartment each. While still married, they can enter into a division agreement, according to which the wife will become the owner of a certain share.
Registration of purchased housing in the name of one of the spouses does not give him any advantages, unless otherwise established by the marriage contract. Such an apartment can be divided voluntarily or judicially, after which the wife will be able to buy out the share from her husband.
Housing with a mortgage
The high cost of real estate encourages people to take out a mortgage. Sometimes, after a long period of mutual repayment of debts, people break up. A logical question: who will get the apartment, how to fulfill obligations to the bank? According to paragraph 3 of Art. 39 of the RF IC, the debts of the spouses are distributed in proportion to their shares. The latter are determined by conciliation or judicial procedure.
Possible events:
- Each spouse gets half of the apartment and the mortgage debt. In this case, you need to contact the bank with a request to re-issue the loan agreement.
- The sole owner becomes one of the spouses, for example, the wife, who is responsible for paying the mortgage. The husband has the right to receive compensation in the amount of ½ of the payments made.
In the first scenario, the wife will be able to buy out the share from her husband, having achieved his consent and the bank’s approval for the transaction.
Donated or inherited apartment
An apartment received during marriage under a gift agreement, according to the will, belongs entirely to the spouse and is not considered joint property. The wife may request the sale of a share of the property or the entire apartment to her, but the husband has the right to refuse.
When is it advisable to buy back a share?
It is profitable to purchase the husband’s share if, as a result of the transaction, the wife, and possibly her close relatives, become the sole owners of the property.
It is impossible to force a spouse to sell. The law does not contain provisions on how to eliminate an unwanted owner, so you will have to use available methods: persuade your husband to enter into a purchase and sale transaction or resolve the issue in court.
Difficulties in such transactions arise when there is a lack of finance:
•maternity capital cannot be used to purchase shares from close relatives; By law this is considered as cashing out.
•the buyer can apply for a mortgage loan. If he already owns half or more of the apartment (buys out the last share), then according to the law, he can register the entire apartment as mortgage collateral. This is the most acceptable way for the bank, since it receives the right to a full apartment. Getting a loan in this case is quite simple. In other cases, the risk of the credit institution increases, which leads to an increase in the cost of the loan (interest rate).
Purchasing a share in an apartment from a former spouse through the court
The concept of “insignificant share” appears in paragraph 4 of Art. 252 of the Civil Code of the Russian Federation. If the spouse owns a share that cannot be realistically allocated, and is not interested in living in the disputed housing, the court may oblige the co-shareholders (for example, the wife) to pay compensation to the spouse, whether he wants it or not. Read more: How to recognize a share in an apartment as insignificant
Procedure
If there are grounds for going to court, a claim should be filed. The document is drawn up in accordance with Art. 131 Code of Civil Procedure of the Russian Federation and contains information:
- In the upper right corner - the name of the court, full name of the plaintiff, defendant, addresses and contact details of the parties.
- Name of the claim.
- The essence of the document, which states: on what basis the spouse received a minor share, whether he has other property, whether the parties tried to agree on the sale. It is necessary to recalculate the ideal (fractional) share into meters of living space and indicate that its allocation infringes on the property rights of other shareholders.
- A petition to recognize the share as insignificant and to pay its owner monetary compensation.
- A list of attachments, which includes: a receipt for payment of the state duty, an identity card (copy), a cadastral passport, title documents for the apartment, an expert assessment of the value of the property, and other documents confirming the information stated in the claim.
- Date of compilation.
- Plaintiff's signature.
claim for recognition of the share as insignificant
The document is submitted at the location of the disputed real estate.
The period for consideration of such cases takes on average 2 months , however, the ex-husband may delay the resolution of the issue by requesting a postponement of the date of consideration of the document without appearing at the hearing.
Forced purchase of shares from relatives
As mentioned above, the pre-emptive right to buy out a share belongs to the co-owner who lived in the apartment at the time of distribution and has no other housing. It is impossible to force other owners to sell their shares, but in some cases the practice of forced redemption by court decision is used. The plaintiff in this case is the co-owner who has a larger share or the right of first refusal.
The basis for filing a claim may be the inability to match the virtual (value) share with its physical equivalent, suitable for living by an individual family (room and common areas).
Notification procedure
The pre-emptive right to repurchase arises from the moment of receipt of written notice. Please note that violation of the notification procedure will not only be an obstacle to certification of the transaction at the notary’s office, but will also lead to its recognition as invalid. Such a claim can be filed in court by any interested person whose rights were violated by the sale of a share without notice.
When drawing up a notification, you need to consider the following nuances:
- the remaining shareholders must be notified only in writing; oral procedures are not provided for by law;
- the document is handed over against signature or sent by registered mail (the period for giving a response begins to run from the moment the notification is received);
- the content of the notice must indicate all the terms of the transaction for the purchase of a share by a relative - all other shareholders will be able to exercise the pre-emptive right to purchase on the same conditions.
Download notice of sale of a share in an apartment (sample)
It is not allowed to change the terms of the purchase and sale agreement from those specified in the notice. If such a fact is established (for example, the redemption will take place at a lower price than indicated in the notice), the transaction can be declared invalid with the transfer of rights to other shareholders.
Upon receipt of a notification, each shareholder can choose one of the following options:
- exercise the right of first refusal - for this, the seller is sent a written consent to conclude a purchase and sale agreement;
- waive the preemptive right - if each of the shareholders immediately sends a written refusal to the notification, it is not necessary to wait 30 days;
- do not respond to the notice - failure to respond within 30 days automatically implies a waiver of the right of first refusal.
To subsequently certify the agreement, you must submit a notification form to the notary's office, as well as evidence of its delivery to the remaining owners (this can be a receipt on the notification form or a postal receipt).
How to transfer a share in an apartment to a relative?
There are different ways to transfer a share in an apartment. But the easiest way is to draw up a gift agreement. You can do this at any time. To carry out such a transaction, the permission of other persons is not required.
Today there are two ways to formalize a transaction between relatives:
- use the services of a qualified lawyer (notary);
- draw up the contract yourself.
Let's celebrate! After all, most people are legally illiterate. Therefore, it is better to use the services of a specialist. If you have legal knowledge, then you can draw up a gift deed yourself.
Procedure
Let's take a closer look at the procedure:
- A package of documents (application, various statements, consent of the council, and documentation for the apartment). Also, if necessary, you need to prepare copies of documents.
- Compliance with conditions. Certain categories of persons cannot participate in such transactions.
- Drawing up the necessary agreement. It is difficult for an ordinary person to draw up a gift agreement. To do this you need to have the necessary knowledge. Therefore, it is better to contact a lawyer or notary. These specialists will help you prepare the document correctly. If the document contains obvious violations, then it will be considered invalid. If the document is executed incorrectly, then the donor can challenge it in court.
- Registration of the agreement. The document must be registered. The document must be completed at the Registration Chamber. Before visiting this organization, you must prepare a package of documents (right to an apartment, extracts, council consent, application, etc.). To complete a transaction, the presence of two parties to the transaction is required. Registration will be carried out within 1 week. After this, the citizen will receive documents on ownership.
Who does not have the right to transfer their share?
The law regulates the procedure for transferring a share to a relative.
There are the following restrictions:
- Civil servants, medical and social workers. This category of persons cannot enter into gift relationships. Why is there such a ban? Because civil servants can take advantage of their position. For example, a citizen may transfer property to a government official as a bribe. Medical workers can also use their official position. For example, a citizen transfers his property to a medical professional as payment for an operation. Therefore, the law strictly regulates such transactions.
- Children under 14 years of age and disabled persons. According to current legislation, this category of persons cannot transfer a share in the apartment to a relative.
Required documents
It is impossible to complete a transaction without a complete package of documents. They are needed for registration at the multifunctional center and registration authorities.
To transfer a share in an apartment to a relative, you need to prepare the following package of documents:
- Spouse's consent. If there is a spouse's consent that is not notarized, then it is invalid. In this case, it cannot be used to complete the transaction. If the property is jointly owned, then the consent of the spouse is required. Consent is a mandatory requirement.
- Cadastral passport. It is necessary to make a copy of your passport. The passport must be certified by the authority that issued it.
- Extract from the house register. You must also make a copy of this statement. It will be required to complete the transaction.
- Various title documentation (original purchase and sale or special certificate). That is, they must certify the citizen’s ownership rights.
- Receipt for payment of various fees.
- Special application form.
- Donation agreement (two copies will be required). You also need to make a copy. The second copy will be stored in a special archive.
How to submit documents online?
Today you can submit all documents online. To do this, you need to use the Rosreestr website.
Detailed instructions:
- First, a citizen must register. To do this, you need to provide the necessary information about yourself.
- After this, you need to select your place of residence (region).
- Now you need to go to the “registration of rights” item.
- First, fill out the online form. To do this, you need to enter information (passport details, place of residence, etc.). We select the documents we want to transfer. We send.
Procedure for registering an agreement
How to properly register a gift deed:
- First you need to prepare a complete package of documents.
- Select MFC.
- Provide a package of documents to the MFC employee.
- In a few days you will receive a signed contract.
Taxation
In accordance with current legislation, transactions between relatives are not subject to taxes. But if a citizen cannot complete the transaction on his own, then he will need to use the services of a lawyer or notary. And accordingly you will have to pay for the services.
Note! But to register a share in an apartment, you must pay a state fee. Today the state duty is 2000 rubles.
How to draw up a contract yourself?
To conduct a transaction yourself, you need to go online. After this, you need to draw up a gift agreement. But it is better to use the services of a good lawyer.
Donation agreement for a share in the ownership of an apartment - sample
A sample can be found on the Internet. To find this document you need to use a search engine. The sample will help you write the contract correctly.
