We formalize previously existing rights to real estate. New orders for “old” objects

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• Housing law

According to housing legislation, residential real estate falls into the category of property subject to mandatory registration.
Housing registration is carried out in a single registration authority - Rosreestr, which in 2020 replaced the former State Register of Real Estate (USRN). Registration of housing ownership gives the owner full legal rights in relation to this property. A citizen can dispose of it at his own discretion - sell, donate, bequeath to heirs or rent out. Let's look at what is needed to register ownership of an apartment and how this procedure is carried out.

What does ownership give?

Until relatively recently, during the times of the USSR, real estate ownership did not exist in our country. The entire housing stock was listed on the balance sheet of the state - local authorities, enterprises or departments. Residents received the right to live in this living space on the basis of a social tenancy agreement. This agreement was concluded for a certain time or indefinitely. But, in any case, the tenant was not the full owner of his apartment.

The institution of social rent has survived to this day; it applies to housing owned by municipalities, government departments and various enterprises. At the same time, the resident of a municipal apartment is not officially considered its full owner, but only an owner with limited rights. Thus, he does not have the right to sell his home, exchange it without the consent of the owner, donate it or bequeath it by inheritance. The only thing he has a legal right to is to ensure his rights to living space within the framework of the provisions of the concluded social tenancy agreement.

Our citizens received the right to register their living space as their property back in the early 90s with the adoption of the bill on housing reform. This law allowed residents to register the housing they occupy as personal property on preferential terms. Preferential conditions provided for the free transfer of housing into ownership of the persons living in it. The exception was some categories of housing, which, in accordance with their status, could not be privatized. For example, these included:

• Rooms in dormitories belonging to educational institutions.
• Some dormitories listed on the balance sheet of enterprises were also not subject to privatization.
• Departmental housing, the owner of which was various government agencies - the Armed Forces, the Ministry of Internal Affairs, the FSB, etc.
• Housing recognized as unsafe.

The law on the privatization of municipal housing had a certain validity period, but was repeatedly extended. The last time free privatization was extended until 2020. Despite the law being more than a quarter of a century old, not all citizens who have the right to do so have transferred their housing into ownership. This is most often connected with some personal considerations, with certain pros and cons.

Let's consider all the advantages and disadvantages that registration of ownership of housing provides. Among the advantages of this procedure it should be noted:

• The main advantage of privatization is the opportunity to obtain ownership of an apartment, the market value of which sometimes reaches more than one million rubles.
• The legal owner has the right to carry out the entire range of legal transactions of a property nature with his home. He can, if desired, donate an apartment, exchange it for another property, rent it out under a lease agreement, bequeath it to his children, grandchildren or other heirs.
• The owner can, having received the appropriate permission from the supervisory construction institutions, carry out internal redevelopment of the apartment to his liking.
• No one has the right to evict a tenant from his own apartment or seize it. The exception is situations provided for by law, but even in this case the citizen is required to pay the real value of his real estate.
• The owner has the right to register any person in his living space, and also, if desired, to sign him out. Moreover, to carry out such actions, his desire alone will be sufficient.

But, along with the above advantages, registering an apartment as a property also entails a number of disadvantages. These include:

• There may be an increase in utility bills. In many regions, part of the costs for departmental or municipal housing is borne by the enterprise or the city budget. As a result, the cost of utilities for persons living in an apartment on the basis of a social tenancy agreement is lower than for private homeowners,
• Persons who have registered ownership of an apartment bear full responsibility for maintaining it in proper condition. In particular, all the costs of current and major repairs will fall on their shoulders. This is due to the reluctance of many residents to register ownership of their apartments. In 90% of cases, residents who still voluntarily refuse privatization live in apartments belonging to dilapidated housing stock. In the event of privatization of such an apartment, the municipality automatically shifts the costs of repairing such pre-emergency (and often frankly emergency, but not recognized as such) living space to its residents.

But, in addition to the option of privatizing residential property already owned by citizens, there may be several more situations with registration of ownership of apartments. For example, registering ownership rights to a newly purchased apartment in a new building, or when purchasing a home with a mortgage, has its own nuances. Below we will try to understand the procedure for registering residential real estate in a given situation.

The procedure for registering ownership rights during free privatization of an apartment

One of the most frequently used options for registering ownership of an apartment is the privatization of municipal housing. The main condition for free privatization is that the citizen has a title document indicating the legality of his residence at the specified address. From a legal point of view, the document seals the agreement reached between the tenant and the municipality to provide him with this living space for living.

In this case, the tenant does not have the right to independently dispose of the living space received for living. In particular, he does not have the right to enter into any property transactions with this apartment, including selling, donating or renting to tenants. In addition, the social tenancy agreement also stipulates other clauses relating to the operation of the apartment provided to the tenant. For example, he is obliged:

• When using the apartment, do not violate the housing and communal standards defined by the housing legislation of the Russian Federation.
• Maintain housing in accordance with the requirements of the SES, that is, maintain cleanliness and order.
• If damage is caused to the property due to the fault of the tenant, he is obliged to eliminate it at his own expense.

Only those citizens who were registered in the given apartment have the right to privatize municipal housing, and, in addition, are also indicated in the social tenancy agreement. First of all, this is the tenant himself, or, as he is officially called, the responsible tenant, and members of his family. According to family law, these officially include:

• Officially the spouse, whose marriage was registered in the registry office.
• Children of a married couple.
• Children living with the responsible tenant if he is divorced.
• Other relatives living with him legally.
• Disabled citizens living with a tenant and under his care.

In other cases, for example, in an unofficial (“civil”) marriage, a man and a woman are recognized as a family, sometimes only by decision of the judicial authorities. In the event of a divorce, former spouses occupying the same living space do not lose their rights to part of the privatized housing, regardless of which of them is the responsible tenant under the contract.

When submitting an application for privatization, you should remember that according to the law, housing owned by educational institutions, government agencies and enterprises cannot be transferred into ownership. First of all, this applies to student, worker and military dormitories. In addition, it is impossible to register ownership of housing that is recognized by the housing commission as unsafe. Apartments that have been in arrears for housing and communal services payments for more than six months are also not subject to privatization.

It should also be taken into account that the opportunity for free privatization is provided once in a lifetime. That is, if a given citizen has previously received some municipal housing space for free, he will not be able to become a participant in privatization again. Or, according to Article No. 15 of the standards of the Russian Federation Committee on Housing and Communal Services, he will have to officially terminate the previously concluded privatization agreement. In this situation, a person must either abandon the residential property listed on him, transferring it back to the balance of the municipality, or pay its full market value.

For the procedure for free registration of ownership of a municipal apartment, the following documents will be required:

• Apartment registration certificate obtained from the technical inventory bureau. It should graphically display the main parameters of housing - the location of rooms and utility rooms, their area. This document is provided in 3 photocopied copies.
• Explication – a written explanation of the drawings presented in the technical passport. Also produced in 3 copies.
• Certificate from the housing administration about the composition of the family living in the apartment.
• Extract from the cadastral chamber.
• Passports of all persons involved in privatization and their photocopies.
• Metrics of each minor child living in the apartment, with photocopies.
• Social rent agreement concluded between the tenant and the municipality.
• Housing warrant and two photocopies.
• Receipt for payment of state duty.

There are also some nuances associated with the documentation package. In a situation where the warrant was issued after 1998, you will need to provide an order for its issuance. In the case when after 1992 the citizen changed his place of residence, then from each place of residence he must submit a certificate F-No. 9 about his non-participation in privatization before. In a situation where one of the residents of the apartment who has the right to participate in privatization, for any reason, refuses to participate in the procedure, the refusal must be notarized. When a citizen registered in a municipal apartment died after 2000, a death certificate should be attached to the documentation package.

Procedure for registering ownership of a new apartment

Registration of ownership of a purchased apartment will look somewhat different. Before submitting an application to the Rosreestr authorities, you should collect a complete set of supporting documentation. It includes:

• An application requesting to register ownership of the property.
• Passport of the new owner of the apartment and its photocopy.
• Certificate from the housing department or homeowners association about the number of people living in the apartment.
• Title document for housing. It shows on what basis the citizen became the owner of the apartment. Legal documents include a deed of sale, a deed of gift, a will, and a housing exchange agreement.
• When an apartment is inherited, you will need to provide a notarized waiver of the other heirs’ share in the property.
• If the property being registered as a property is pledged, for example when taking out a mortgage loan, you will need to obtain permission to register from the mortgagee.
• Receipt of payment of the state fee.
• Cadastral passport of the dwelling.
• Housing registration certificate from BTI.
• Explication of real estate.

Here is a standard set of papers required for registering an apartment with the Rosreestr authorities. Depending on the situation, this list may change. Therefore, you should inquire in advance about the list of required papers at the territorial registration authorities. When a home is purchased on the secondary housing market, it is not at all necessary to provide a cadastral passport, technical passport and explication. They will be required when registering ownership of an apartment purchased in a new building.

An apartment purchased under a mortgage loan agreement is not officially considered the property of its owner. Accordingly, he does not have the right to dispose of it as a full owner. In fact, it is pledged to the lender until the final repayment of the mortgage debt. Only after this the buyer takes ownership and has the right to register ownership of the property.

Freezing

Rosreestr can freeze a transaction only for reasons specified in the law.

These include the following:

• not all papers have been submitted;
• the papers are fake and the information in them is false;
• there are discrepancies between the registered powers and the application;
• the form of the papers does not comply with the law;
• there is a lien on the real estate;
• real estate is the subject of litigation in court;
• the second spouse does not agree to the transfer of property rights to third parties;
• There are no written refusals from other co-owners if a part of the right is sold.

The court also has the right to suspend the registration process by adopting a corresponding decision. In any case, all participants in the procedure must be notified about the freezing of the process. The freezing period can reach 30 – 90 days. Registration may be suspended at the initiative of the participants themselves, but until the end of the process.

Moreover, it is necessary to indicate a valid reason and the desired period of freezing (no more than six months). Registration may be terminated altogether at the request of the parties. As a rule, this happens due to unforeseen situations.

Registration of a new apartment

In recent years, the practice of selling apartments before they are put into operation has become widespread. And in many situations, apartments are sold that have not even begun to be built. However, according to legal standards, until the house is accepted by the housing commission and has received permission to put it into operation, it is simply impossible to register ownership of the purchased apartment.

Therefore, an agreement to purchase an apartment that has not yet been built is officially called not a purchase and sale agreement, but an agreement on shared participation in construction. This paper does not provide the buyer with ownership rights to a property that does not yet exist, but rather guarantees the receipt of such rights in the future, when the house is built and commissioned. To take ownership, you will need to register the apartment with the Rosreestr authorities in the name of the owner. Otherwise, the citizen will not be de jure considered the full owner of the acquired property. He will not only be able to sell or exchange his newly purchased home, but even register in it.

To register ownership of an apartment in a new building, the following conditions must be met:

• Wait until the construction of the residential building in which you purchased the apartment is completed.
• The Housing Commission must give the go-ahead for the housing to be put into operation.
• The developer must submit the necessary set of papers for state registration of the building.

Frequently occurring delays in registration are associated, as a rule, with late submission of documents, or with their incompleteness. If all the papers are available, registration of housing in new buildings occurs without unnecessary delays. Conventionally, all actions preceding registration can be divided into several steps:

1. Obtaining permission from the relevant commission for putting the dwelling into operation. This document confirms that, after inspection by specialists, the housing you purchased was considered fully suitable for permanent residence and complies with all housing regulations and construction standards.
2. Carrying out measurements to establish the actual area of ​​the apartment. The fact is that the actual size of the constructed living space may differ significantly from that indicated in the advertising brochure, or even in the construction plan. In a situation where the actual area of ​​the home turns out to be less than that specified in the shared construction agreement, the buyer has the right to demand that the developer return the difference in monetary terms.

A person can register ownership of housing in several ways:

• Independently carry out the entire procedure for collecting the necessary papers and submitting them to the registration authorities.
• Entrust the entire process directly to the developer.
• Use the services of special law firms.

Each of these options has its own advantages and disadvantages. Recently, many development companies have been engaged in the design of apartments for sale. In this case, no money is taken from the client - all this is done in the form of a free bonus. But even if you are unlucky and the developer does not provide such services, you have the opportunity to seek services from a special law firm. For a certain fee, a specialist whose occupation deals with housing issues will be able to provide comprehensive assistance in collecting the necessary package of documents, as well as carry out the entire procedure for registering ownership of an apartment.

When you do not want to spend money on hiring a professional lawyer, and have enough energy and time to go through the authorities, you can try to go through the entire process yourself. Unfortunately, the majority of the country’s population is not “savvy” enough in the legal sense to independently and without errors prepare all the papers and submit them to the registration authorities. Recently, for the convenience of citizens, special centers have been opened to provide government services.

But not all citizens know how to register ownership of an apartment in the MFC. To do this, you just need to submit the documentation along with the application to the required window. Each MFC has a help desk where they provide the necessary advice on the procedure for filing various applications. After receiving the package of collected papers, they are reviewed within a month and, if the decision is positive, a certificate of registration of ownership of residential real estate is issued.

Recognition procedure

Many people are interested in the question of whether it is necessary to register a previously acquired right that was acquired on the basis of a concluded transaction. When recognizing a previously arisen right, it is necessary to take into account that:

• There is no need to go through an additional registration procedure. This means that if the right to real estate was acquired before the adoption of the relevant law, then there is no need to re-register: it is recognized, and the right holder can own real estate on the basis of the documents he has;
• If it is necessary to register new rights to this property, then it is necessary to go through the procedure of state registration of rights that were acquired before the adoption of this legislative act. For example, if the owner decides to sell his apartment, the right to which he acquired before 1998, then he will first have to carry out state registration of his ownership rights and only then proceed to the procedure for selling the apartment.

But if it is necessary to carry out state registration of a previously arisen right, certain problems may arise in practice, since the current legislative act does not carefully regulate the procedure for state registration of a previously arisen right.

To do this, you must submit a corresponding application. At the same time, the law does not require making an entry in the Unified State Register based on previously made entries in the BTI. This means that, perhaps, information about a specific property may simply not be in the Unified State Register. The procedure becomes more complicated.

To register a right, it may be necessary to present a cadastral passport. And for this you need to resort to the services of appropriate specialists, which implies additional financial costs. If the owner intends to sell real estate, then this procedure must be undertaken in advance.

Another incident that arises during the registration of rights is related to the need to pay a state fee. Many experts are of the opinion that state fees should not be charged for registering a previously arisen right. But upon presentation of the application, you will still have to pay the state fee.

From the above it follows that issues related to the recognition of previously arisen rights have received their legislative regulation. But even with such regulation, certain difficulties and problems arise in practice. Of course, the legislative body is constantly working to eliminate incidents and “misunderstandings” that exist in legislative acts. Specialists and practicing lawyers come to the aid of the legislative body, pointing out the presence of certain gaps in the legislation. But still it does not keep up with practice and the development of social relations. That is why there are always gaps that need to be eliminated and the presence of which can cause disputes between participants in legal relations.

That is why it is recommended to consult with an experienced and qualified specialist before starting this procedure. Only a qualified lawyer will be able to give complete and accurate advice regarding issues of interest to the applicant.

In addition, this is a rather complex and difficult situation from a legislative point of view. That is why the help of a lawyer is simply necessary. A qualified notary will be able to prepare the entire package of necessary documents and papers, send requests to the relevant government authorities, submit an application to the registration authority and much more. In addition, if necessary, a qualified lawyer will appeal the decisions of authorized state bodies in court and will provide representation at court hearings. If the decision of the court of first instance does not satisfy the client, his representative may appeal this decision to a higher court. And the decision that has entered into force, which was made in favor of the client, is subject to mandatory execution. Accordingly, if you find yourself in a similar situation, it is better to seek help from a qualified specialist.

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