The high cost of an apartment is one of the main factors that makes this market sector of real estate sales very criminalized. Fraudsters, taking advantage of the legal illiteracy of our population, continue to deceive thousands of gullible citizens in transactions for the purchase or sale of apartments. How to minimize the risks of selling or buying residential real estate? Before answering this question, let’s look at the most traditional methods of fraud in the apartment market and define the range of potentially “dangerous” types of real estate, which include:
- housing in which at the time of the purchase/sale transaction someone lives or is registered;
- apartments inherited by right of inheritance;
- apartments of conscripts or convicts in accordance with a court decision;
- housing for minor owners;
- apartments for disabled people or pensioners;
- apartments of persons registered in drug treatment or psychoneurological dispensaries.
Selling an apartment whose owners include children
One of the most common types of fraud is the sale of an apartment, the owners of which, along with the adult owners, are also minor children. In some cases, such transactions can be challenged in court by the previous owners of the apartment or relatives - guardians. The procedure for selling this housing requires permission from the guardianship authorities, issued if the children move to an apartment of larger area, greater cost, or, for example, to a better area. Sometimes inspectors from the Guardianship Department are put in a difficult position when assessing a child’s future housing, for example, when a family moves from a prestigious brick house to a panel high-rise building with larger square footage. In such cases, permission can be given on the condition that the sole owner of the new apartment will be one child, that is, the rights of the owners of the parents are infringed. That is, when a permit is issued by the Guardianship Department, there may be cases where it is declared invalid. Separately, it should be said about new children's housing in new buildings, which may be “frozen” for many reasons. According to the law, minor children must be provided with housing within three months from the date of sale of the old apartment, and control over the implementation of the law is entrusted to the prosecutor's office. Obviously, the prosecutor’s office cannot exercise total control over the observance of children’s rights, but no one is immune from control sampling and invalidation of a purchase and sale transaction. In these cases, there is only one piece of advice - contact a real estate office with an impeccable reputation, where all the nuances of selling such an apartment will be taken into account.
Sale of an apartment whose owners include disabled people
Similar problems can await a buyer when purchasing residential real estate with owners who are disabled and under guardianship. If the disabled owner was declared incompetent at the time of the transaction, the transaction will be cancelled. If the purchase and sale agreement for an apartment contains the signature of a fully capable person who is aware of his actions, then the owner of the apartment should not fear the legal consequences of concluding such a transaction. A separate line is fraud in the sale of apartments that belonged to persons registered in a psychoneurological dispensary. Such an agreement and the rights of the new owner can also be challenged, therefore, before concluding a transaction, you should request a certificate from this organization about whether or not the seller of the apartment is on this account. If the adequacy of the apartment seller raises your suspicions and you do not fully trust the integrity of the employees of the psychoneurological dispensary, then it is better to organize an independent examination of the apartment seller on the day the purchase and sale agreement is concluded. The category of transactions with apartments, where at the time of the transaction someone is registered, is one of the simplest, since according to the law, these persons can be forcibly discharged by court. But, in reality, this procedure can take several months. Real estate transactions where the owners (or shareholders) are conscripts or those convicted and serving a sentence in court can also be extended, since in this case they fall into the “temporarily unavailable” category.
Types of real estate fraud
Over the past 10 years in Russia, the number of transactions carried out using scams has increased by 20%. Every year, elderly people who are lonely or abandoned by their relatives fall into the web of scammers and lose their real estate. There are many situations when a pensioner can lose an apartment.
Thus, there is fraud when renting an apartment, social services, or buying and selling at a symbolic cost. Even sensible citizens fall for the options used by scammers. During thefts, fraudulent schemes are used through the following operations:
- life annuity;
- registration of a deed of gift for a social worker;
- exchanging an apartment for a smaller area with payment of an unequal difference;
- rental housing.
Lifetime annuity agreement for a pensioner
Entering into a life annuity agreement with a scammer can be a risky deal. The essence of such an agreement: the pensioner is provided with care and full maintenance, and after the owner of the home dies, the apartment becomes the property of the rent payer.
If such a rent payer is a criminal, the fraudster's care for the elderly does not last long and the elderly person soon dies.
The possibility of losing housing exists even during the pensioner’s lifetime: instead of receipts confirming receipt of rent payments, he is given a termination of the rental agreement and a document for the alienation of housing (deed of gift, purchase and sale) or a power of attorney to dispose of the apartment for his signature.
Fake social workers
A technique often used by scammers to gain the trust of a pensioner is to use the image of a social security employee. Using a fake social worker ID, the fraudster enters the house. Under the guise of some kind of paperwork, most often for the provision of benefits and an additional pension, the swindler gives the tenant to sign a power of attorney to dispose of the apartment.
It happens that real social workers who have information about lonely old people resort to such a theft scheme. A pensioner is persuaded to move into a nursing home, accepting housing as payment for staying and serving in such an institution. In fact, the maintenance costs the fraudster much less than the proceeds received from the sale of real estate.
Fraudsters can deceive a pensioner already in a nursing home. A criminal from among the staff looks for lonely people there, persuades them to re-register an apartment in his name for additional care, increased nutrition and improved living conditions.
The scheme is the same: the citizen does not receive any funds from the sale, or in the best case scenario, he receives a meager payment that is not comparable to the value of the transaction.
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Unequal exchange of apartment
This scheme is designed, as a rule, for that category of pensioners who have debts for housing and communal services. They are offered to exchange the apartment for housing of a smaller area so that the additional payment is enough to pay off the debt. The swindlers, having completed a deal with the participation of dummies, resettle the victim to a remote village or a house unfit for habitation, and the pensioner’s living space is then resold.
Fraud when renting out an apartment
Sometimes elderly citizens, wanting to receive additional income, rent out an apartment to tenants, and themselves move to live with their children or other relatives. Renting real estate is dangerous because when renting an apartment, scammers ask for original ownership documents to conclude an agreement. Having taken possession of the necessary papers or forged them, swindlers sell the object, posing as the owner.
The real owner will find out about the sale of the property later when he discovers strangers there. Restoring justice through the police and the court takes a lot of time, effort and money.
Deposit for the sale of an apartment
The deposit is another “stumbling block” when drawing up an apartment purchase and sale agreement. The main rule is not to give large sums of money before executing real estate transactions. It is best, with the support of a lawyer, to conclude a preliminary agreement, which describes in detail the amount of the deposit, the terms for concluding the main agreement, etc. You can also draw up a preliminary agreement with a notary - the cost of such a “visa” will not be expensive, unlike the notarized signing of the main agreement. When signing the contract, indicate the real, and not the fictitious (reduced) cost of the apartment, since it will be legally impossible to collect the actual transaction amount from the seller.
The apartment deal fell through
Advice from lawyers:
1. I completed a sale transaction through Click House. The deposit agreement, the purchase and sale agreement, everything was already ready. We have been waiting for a 0.3 mortgage discount for a long time. My vacation was cancelled. The buyer was approved for a mortgage, and I started moving out of the apartment with my three children. And now he says that he has changed his mind. Can I go to court?
1.1. You can if you have a preliminary purchase and sale agreement.
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1.2. If a PRELIMINARY purchase and sale agreement has been concluded (usually it is concluded together with a deposit agreement), then you can go to court to force the conclusion of the main agreement. In any case, if a deposit agreement was concluded, then if the party that gave the deposit is responsible for failure to fulfill the agreement, it remains with the other party. You may not return the deposit. - Art. 381 Civil Code of the Russian Federation.
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2. I am selling an apartment with a mortgage through an agency, they say that the buyer gave a deposit, but to whom in this case should the buyer give it, if I did not see it and there was no receipt, moreover, they require me to sign out before the transaction, are the agent’s actions correct? , whose deposit is it if the deal falls through?
2.1. It should be stated in your contract.
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3. The deal to buy an apartment fell through. Initially, the buyer, together with the appraiser, inflated the cost, because the buyer did not have the funds for the down payment. I was given a deposit against a receipt. Now they want it back, what should I do?
3.1. Good afternoon, Tamara, you need to look at the terms of the Agreement concluded between you. Usually, the deposit is not returned in that case. If the deal fell through due to the buyer's fault. If the transaction is not completed due to the fault of the seller. Then the deposit in the 2nd amount is subject to return.
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3.2. Don’t return anything, let them go to court and prove that it was an advance. And litigation can take a very long time.
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4. I am selling an apartment, and I needed to make a certificate about the tenants registered in the apartment, they prepared it for me, but at the same time it indicated debts for utility services, then they gave me a receipt for the utility bill and the amounts in the receipt and the certificate do not agree. As a result, if I pay for utilities using a receipt, then according to the certificate issued by the HOA, I will remain in debt... and this debt is not reflected in the receipt in any way... how should I act in this situation so that the deal for the sale of the apartment does not fall through.
4.1. Good afternoon An extract from the house register of the approved form, except for information about registered citizens and dates, should not contain any other information.
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4.2. Hello, Fedor! Ask the HOA to exclude the amount of debt for utility bills from the certificate, although you should have been given an extract from the house register, where the debt is not reflected, and not a certificate. If you need to pay the debt for this, then pay using the receipt and present it. In this case, there will be no debt in the extract from the house register (where those registered/registered in the apartment are indicated). Debt for utility bills is usually reflected in an extract from the personal account, which buyers also have the right to request before the transaction. Good luck to you!
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5. The deal on the apartment fell through due to the fault of the seller; the buyer paid for the appraisal; when appraising another apartment, the agency demands that the buyer pay the appraisal again. Is this fair?
5.1. Lyudmila, if the deal fell through due to the fault of the seller, you have the right to collect from him a double deposit (if given) and compensation for damage caused, in accordance with Articles 381, 15, 1064 of the Civil Code of the Russian Federation.
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6. We are buying an apartment on the secondary market, planning to pay through a letter of credit, tell me if the deal falls through for some reason, how quickly I can get my money back from the letter of credit (I’m interested in the terms and conditions) and whether any problems will arise with the bank.
6.1. Hello. You need to analyze the letter of credit agreement; it contains all the conditions that interest you. Pay attention to how the confirmation of the beneficiary's refusal from the transaction occurs; in the deposit agreement or preliminary agreement, if you have one, indicate that the cost of the bank's services is borne by the beneficiary in the event of his refusal of the transaction. For more detailed advice, you can contact us in private messages. Always fight for your rights.
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7. The former owner has not left the apartment for 2 years. Because of this, the sale deal fell through. She filed a lawsuit against the release. Does it make sense to file a claim for material damage?
7.1. If you can prove the fact of lost profits and its size, then it makes sense to go to court.
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7.2. No. The court will tell you, what were you thinking two years ago? No one bothered you, they will tell you to write it out before the transaction..
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8. I want to ask... I’m selling an apartment. They gave me a deposit. The deal is about to fall through neither our fault nor the fault of the buyer. It’s just that the lawyer and the notary did not correctly formalize the refusal of privatization. Should I return the money to the seller?
8.1. If the deal falls through and it is neither your nor the buyer’s fault, then the deposit must be returned. There is no need to return double the amount. Article 380 of the Civil Code of the Russian Federation.
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8.2. Yes. Civil Code of the Russian Federation Article 381. Consequences of termination and non-fulfillment of an obligation secured by a deposit 1. If the obligation is terminated before the start of its performance by agreement of the parties or due to impossibility of performance (Article 416), the deposit must be returned. 2. If the party that gave the deposit is responsible for the failure to fulfill the contract, it remains with the other party. If the party who received the deposit is responsible for non-fulfillment of the contract, he is obliged to pay the other party double the amount of the deposit. In addition, the party responsible for failure to fulfill the contract is obliged to compensate the other party for losses, minus the amount of the deposit, unless otherwise provided in the contract.
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9. The deal to sell the apartment fell through. At the same time there had to be another purchase. How to prove the guilt of the buyer of my apartment in that I lost the deposit for the purchase of another.
9.1. If you entered into a preliminary agreement with the buyer, a deposit was paid, and, in the end, a receipt was written - these documents will be your evidence, including in court.
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9.2. You don't need to prove someone else's fault that the deal fell through. Judicial practice has developed in such a way that since the purchase and sale agreement was not concluded (we are talking about the agreement under which you paid the “deposit”), then this amount is not a deposit and is subject to return. In your case, you need to make a written, reasoned claim against the person who is withholding the “deposit”, and then, if it is not returned, you will need to go to court. If everything is done correctly, the court will side with you. Contact me, I know how to get your money back.
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10. My daughter entered into a reservation agreement and made a payment of 116,000. Our deal fell through and we demanded a refund for the reservation. We were refused because the contract stated that services in choosing an apartment cost 104,000 and they are non-refundable. If we have any hope of getting the money back. If the daughter signed the contract. She was told it was just a reservation and she signed without reading it.
10.1. Good afternoon It is not entirely clear with whom the agreement was signed? With an agency? With the Developer or the owner? To answer your question correctly, it is better to read the contract you entered into.
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10.2. Hello Olga. Without familiarizing yourself with the documents (Agreement, etc.), it is not possible to give a reasoned and justified answer.
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11. The deal to sell the apartment through the buyer’s money fell through. The agency handled the transaction, and a deposit of 50,000 rubles was taken from the buyer. According to the agreement, the agency was supposed to receive 50,000 rubles from the seller upon completion of the transaction. Question: who should the money go to? At the same time, the seller came from another city, spending considerable money.
11.1. Hello, Gennady! The deposit amount must remain with the seller in accordance with Art. 381 of the Civil Code of the Russian Federation. In addition, you can recover damages (travel expenses, etc.) through the court. “Civil Code of the Russian Federation (Part One)” dated November 30, 1994 N 51-FZ (as amended on August 3, 2018) (with amendments and additions, entered into force on January 1, 2019)
Article 381. Consequences of termination and failure to fulfill an obligation secured by a deposit Consultant Plus: note. Positions of the highest courts under Art. 381 of the Civil Code of the Russian Federation >>> 1. If the obligation is terminated before the start of its execution by agreement of the parties or due to impossibility of execution (Article 416), the deposit must be returned. 2. If the party that gave the deposit is responsible for the failure to fulfill the contract, it remains with the other party. If the party who received the deposit is responsible for non-fulfillment of the contract, he is obliged to pay the other party double the amount of the deposit. In addition, the party responsible for failure to fulfill the contract is obliged to compensate the other party for losses, minus the amount of the deposit, unless otherwise provided in the contract.
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12. The purchase and sale transaction with the notary fell through. The buyer refuses to buy an apartment for objective reasons beyond his control. The seller took the documents to the notary for registration in advance. What will the notary need to pay in case of a failed deal?
12.1. The work was actually completed, but it is not entirely clear why they contacted the notary, unless it was about selling a share. Sincerely, lawyer – Stepanov Vadim Igorevich.
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13. If the deal fell through due to the fault of the seller, is he obliged to compensate for the damage based on the assessment of the apartment? If in the previous Isn't this stated in the contract?
13.1. Hello! So, if this clause is not in the contract, then it will not be possible to collect money for appraising the apartment.
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13.2. Hello Anna. Article 434.1 of the Civil Code of the Russian Federation provides that citizens are free to conduct negotiations on concluding an agreement and independently bear the costs associated with their conduct, unless otherwise provided by law or agreement. If a party interrupts negotiations in bad faith, that is, suddenly and unjustifiably ends them, then the second party has the right to demand compensation for losses - expenses associated with conducting negotiations. These expenses include the cost of appraising the apartment. If there is a preliminary agreement, and the seller has avoided concluding the main one, then you have the right to legally demand the conclusion of the agreement. Also, the seller who unreasonably evaded concluding a contract is obliged to compensate you for the losses caused by this, even if this is not expressly stated in the preliminary contract. This is a legal requirement provided for in Part 5 of Article 429 and Part 4 of Article 445 of the Civil Code of the Russian Federation. Based on the above, you have the right to demand that the seller compensate for the costs of appraising the apartment, if this appraisal was necessary to determine the cost and conclude the main contract.
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14. I made an advance payment for the purchase of an apartment, the deal fell through due to my fault, the seller returned half of the advance amount, and promised to return the other half in future installments. I waited 3 months for cash receipts, now the seller has completely refused to pay the remaining half. Can I win in court and get the money back, given that the contract contains a clause that, in the event of failure to fulfill the contract or violation of the conditions by the buyer, the advance amount remains with the seller?
14.1. Good afternoon Elena! A very controversial point! I see how you violated the terms of the contract!
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15. How can you prove to the court that the purchase and sale transaction fell through because the seller did not provide the necessary set of documents (namely, there was no extract from the personal account of the management company), the signing of the agreement was scheduled for the last day under the deposit agreement, the apartment was put up for sale again the next day for sale, they refuse to return the deposit.
15.1. In itself, it’s quite simple, file a lawsuit, and in the evidence, attach a certificate from the person who needs such an extract, stating that it was not available on such and such a date, why the transaction could not be registered.
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16. Due to the fault of the management company, the sale and purchase transaction of the apartment fell through. The roof was leaking. The apartment was flooded. How to compensate for lost benefits?
16.1. Hello. 1. A person whose right has been violated may demand full compensation for the losses caused to him, unless the law or contract provides for compensation for losses in a smaller amount. 2. Losses are understood as expenses that a person whose right has been violated has made or will have to make to restore the violated right, loss or damage to his property (real damage), as well as lost income that this person would have received under normal conditions of civil circulation, if his right had not been violated (lost profits). If the person who violated the right received income as a result, the person whose right was violated has the right to demand compensation, along with other damages, for lost profits in an amount not less than such income. Article 15 of the Civil Code of the Russian Federation. As required by this article, you can demand compensation for lost profits.
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17. I received permission from the guardianship authorities to sell my apartment and buy another one with a specific address in the name of my children. I sold my apartment, and the purchase deal fell through, but I found another apartment with an even larger area, how can I now report to the guardianship for the purchase? What statement should I write?
17.1. The application is written in any form with filling out the forms of the guardianship authorities and attaching documents of the proposed transaction. You have violated the provisions of Article 292 of the Civil Code - 4. Alienation of residential premises in which members of the family of the owner of this residential premises live under guardianship or trusteeship or minor members of the owner’s family left without parental care (which is known to the guardianship and trusteeship authority), if at the same time the rights or interests protected by law of these persons are affected, is permitted with the consent of the guardianship and trusteeship authority. The proceedings with the guardianship and trusteeship authorities should not be delayed in order to avoid recognition of the invalidity of the transaction.
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18. Submitted a management agreement for registration with the registry. ward But our deal to sell our old apartment fell through and we are looking for a new buyer. Can we suspend registration and will we incur any penalties?
18.1. “...Can we suspend registration..”
- yes, you can - it’s your right...
“... won’t we incur any penalties.”
-and this depends on the terms of your contract - read it...
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19. I want to buy an apartment. The agency that has concluded an agreement with the owner of the property for sale acts as an intermediary. Is it legal to give a deposit to an agency with the conditions of not returning the deposit if the deal falls through due to my fault and returning the deposit if it falls through the fault of the seller. Thanks Igor.
19.1. Hello Igor. In general, the conditions are quite legitimate and are widely used if not for one BUT. Why are you talking about collateral to the agency? The transaction is made between the seller and the buyer, usually a deposit agreement is concluded between the same persons - the seller and the buyer, with the conditions described by you.
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19.2. Hello. In the situation that you described, nothing illegal is seen, everything is within the framework of civil law relations, all those conditions that will be specified in the contract will begin to apply from the moment you sign it, another question is whether you sign it... Here you need to think for yourself . Why bail? What do you understand by this term? It is possible that we are talking about a deposit agreement here, but in my opinion it would be more correct for you to draw up a preliminary purchase and sale agreement with the seller. If you are offered to sign an agreement with an agency, you must first of all understand what exactly is meant and, based on this, decide what to do next. If it were possible to study the terms of this document, I would be able to give a much more accurate answer.
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20. I checked out of my own apartment on the occasion of its sale, but the sale deal fell through. Can I live in this apartment of mine without registration until I find a new buyer and for how long?
20.1. “Can I live in this apartment of mine without registration until I find a new buyer?” You can live in this apartment as long as you like, if you own it, n* you need to be registered at least somewhere.
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20.2. Article 209 of the Civil Code of the Russian Federation gives the owner the rights to own, use and dispose of the property belonging to him. He can use any of these rights without any restrictions, including living in the apartment for as long as he wants, regardless of registration in it.
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20.3. According to paragraph 16 of Decree of the Government of the Russian Federation of July 17, 1995 N 713, as amended on May 21, 2012, each person must register at a permanent place of residence within 1 working week. Thus, you can live no more than 7 working days without permanent registration. According to Article 19.15 of the Code of Administrative Offenses of the Russian Federation, the fine for violating registration is set at 2000-3000 rubles. Therefore, I advise you to contact the Passport Office to restore your registration.
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The bailiffs imposed a ban on registration actions on the spouse's share in the apartment,
How can we return or save money under this agreement? Since we wanted to sell our apartment and the deal fell through,
We paid a deposit for the purchase of an apartment. The seller allowed the items to be transported, but the deal fell through due to the fault of the seller - guardianship did not allow it.
The purchase and sale transaction fell through due to the fault of the seller, and the certificate expires in a week,
I sold my apartment with a Sberbank mortgage. The purchase and sale documents were drawn up there.
We are selling an apartment, the buyer paid us a deposit of 50 tr. the receipt said:
We were going to buy an apartment, according to the preliminary purchase and sale agreement, we transferred an advance to the sellers, the deal fell through due to their fault (they hid about the use of swear words.
I am buying an apartment through a real estate office and I would like to invite an independent lawyer to assist with the transaction.
Signed a loan agreement. In order to secure this agreement, I also entered into a pledge agreement for the apartment.
A preliminary agreement for the purchase and sale of an apartment was concluded where it was registered
I have a 1/4 share in the apartment, if I check out and the sale deal falls through, will I be able to register back? Thank you. Dmitriy.
Preventing problems before buying an apartment
Another tip - do not hesitate to contact the unified state register of property rights before purchasing an apartment to know exactly who the owner of the apartment is and whether it is under arrest. If the transaction is cancelled, then you will have documents in your hands proving that you are a bona fide purchaser, which is a great advantage when trying the case in court. It is also worth visiting the housing maintenance office to make sure that no one is registered in the apartment you are buying. Of course, there can be many fraudulent schemes when selling an apartment, and no one, for example, is immune from forgery of documents by a person who is not the owner of the apartment. Oddly enough, just common sense and a visit to your potential neighbors can help here. “Do you know how long Tatyana has been selling this apartment?” “What Tatyana, this apartment is owned by Ivan Ivanovich...” Everything described is only a small part of the pitfalls when selling or buying residential real estate, so it is better not to sell an apartment on your own. Usually, experienced realtors know how to secure this kind of transaction. Our real estate agency “Palitra” will provide professional assistance when drawing up an apartment purchase and sale agreement and will take on all the hassle of checking the “legal purity” of the residential property being sold so that the transaction is legally as secure as possible for both the buyer and the seller.
