Risks when buying an apartment - 616 tips from lawyers and lawyers

Threat 1: Fall

The most common risk is to purchase housing at an inflated price, which will sharply depreciate in a year or two. Buyers of Khrushchev apartments and outdated sockets are at the greatest risk. The association reminds that purchasing them for the purpose of investing is pointless: such apartments will become cheaper faster than others in the coming years.

If the cost of an apartment is initially overestimated, its real price can only be achieved through negotiations. The average discount on the market is now 10%, but in some cases - especially when the seller is in a hurry with the deal - you can count on a discount of 15-20%. When buying a home, experts advise comparing prices for similar apartments within a radius of several kilometers. It is also worth looking at the general development plan of the city: some factors (construction of a new metro station) will increase the cost of an apartment, others (densification or placement of road junctions nearby), on the contrary, can depreciate its value.

Buyer's risks when purchasing an apartment from a legal entity

The acquisition of residential real estate is a responsible matter and contains certain risks, even if we are talking about a transaction between ordinary citizens. If any company acts as the seller, then the buyer should be doubly careful and carefully approach the execution of the transaction.

The main difference between buying an apartment from a company is that the status of a seller implies a larger number of necessary documents and, accordingly, greater time costs compared to a regular sale.

The purchase procedure itself is standard for the buyer, regardless of who acts as the seller of the real estate property.

Selecting the appropriate purchase option. The selection of a potential purchase can be made in any convenient way - through real estate agencies, through posted advertisements, through friends, and so on.
Carefully review all the documents required to complete the transaction. At this stage, the buyer has the right to demand from the legal entity the opportunity to familiarize itself with other documents that are not directly required during the sale, but may indicate the reliability of the company.
Registration of the contract. At this stage, an apartment purchase agreement is drawn up and signed. The signatories are: the buyer, on the one hand, and a representative of the legal entity with appropriate authority, on the other.
Payment for purchased real estate. This action in the case of legal entities is possible only in non-cash form. Therefore, the buyer should worry in advance about having a sufficient amount of money in the bank account from which the money will be transferred to the account of the selling company.
Carrying out registration actions with the purchased apartment.

The main risks for the buyer are potential document fraud on the part of the company. Since more documents are required to complete a transaction, the possibility of illegal schemes also increases. The legal portal bukva-zakona.com advises seeking the help of experienced specialists at the stage of document verification, since independently identifying inconsistencies or forgeries is often simply not possible.

The buyer should pay special attention to the following points:

consent to the transaction must be from all owners (founders) of the company and it must be expressed in the form of a protocol with their personal signatures;
the power of attorney of the company representative must imply his right to complete this transaction;
if the selling company interferes with obtaining information about a legal entity (extract from the Unified State Register of Legal Entities), then this can be done independently;
if the selling company offers to pay for the transaction (or part of it) in cash, you should understand that they want to make you a participant in illegal actions;
if the company became the owner of the property less than 3 years ago, then you should understand that there are risks of challenging the transaction on the part of the previous owners of the apartment; it would be useful to study the “history” of the apartment in advance;
before directly signing the purchase agreement, you must request an extract from the house register - if you detect any attempts by the company to register someone in the apartment before the transaction itself, you should refuse to conclude it.

Those companies that have a significant period of active operation without a change of owner deserve more trust. If changes of owners occur frequently, then this fact should alert the buyer.

You should not blindly trust the words of company representatives. Any assurances they make must be documented. The buyer should not be afraid to assert his rights at the stage of concluding a transaction; after the purchase takes place, this will be much more difficult.

A type of situation where a legal entity acts as a seller is the acquisition of real estate in new buildings. Any development company is, by definition, a legal entity.

The risks of shareholders in this case are associated with unauthorized documentation of the company, as well as with the fact that the construction itself may not end with commissioning.

Buyers of apartments in new buildings should pay attention to the following points:

permits and design documents must relate specifically to this object, contain the date and procedure for transferring apartments to clients;
documents must be drawn up for the land plot under the house (ownership or lease for a long period of time);
the text of the contract should not provide for the possibility of unilateral termination by the company or an unreasonable increase in cost;
The development company must have a positive reputation and experience in the construction market; the activities of any unknown companies should be treated with caution.

The buyer will face the least risk when making a purchase from a company using a mortgage. Minimization of potential risk occurs due to the fact that the financial institution independently carefully studies all aspects of the transaction and, if there are suspicions of dishonesty of the seller, will not provide a loan.

The buyer should remember that a mortgage for the purchase of real estate from the company can be provided both for the purchase of this property in new buildings and in existing houses.

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Threat 2: Judgment

Courts are exhausting.
The photo is for illustrative purposes only. Photo: trend.az The most serious threat is related to the recognition of the transaction as invalid. Moreover, this can happen even 10 years after purchasing the apartment. The most common reason is that a person has appeared who has the right to a share in the property. This may be one of the heirs who is indicated in the forgotten will, or the spouse of the seller of the apartment, if the latter was acquired during the marriage and, accordingly, is considered jointly acquired property. The owner of the apartment may also be on a psychoneurological register, which means he is not able to independently perform legally significant actions.

If the transaction is declared invalid, the housing will be returned to the former owners, and the would-be buyer will be given the indexed amount in rubles specified in the contract, which may be devalued during this time. “Property rights need to be defended in court, but such processes are always difficult and very exhausting for both parties. Therefore, it is better to conduct a thorough check of the apartment’s history in advance, looking into the past 15-20 years, as professional real estate agencies do,” explains Nikolai Prostolupov, chairman of the board of the Belarusian Real Estate Association (BelAN) .

And here the danger is posed by attempts by the seller or buyer to formally underestimate the cost of the apartment in the contract in order to reduce the amount of tax payments. If the seller subsequently decides to unexpectedly terminate the contract, he will be legally obligated to pay only the amount specified in the document.

Experts also advise buyers not to give money against a receipt or transfer it to someone else’s account before concluding an agreement. “The only possible basis for paying part of the housing is an advance payment under the contract or an officially executed deposit agreement, which stipulates the terms of the transaction, the condition of the apartment and penalties in the event of an unexpected refusal by the seller to transfer the property. In all other cases, including if there is a receipt, the buyer does not receive guarantees that he will become the owner of the apartment for which he makes an advance payment,” noted Nikolai Prostolupov.

Dm10's blog

When purchasing an apartment on the secondary housing market, the buyer is always faced with the need to identify the legal risks that exist when purchasing a particular property.

The most common legal risk for a buyer of an apartment on the secondary market is the risk of invalidation of the apartment purchase and sale transaction.

At the same time, the reasons and grounds for declaring an apartment purchase and sale transaction invalid can be very different.

- disposal of an apartment without the consent of the participants in common ownership (if the apartment is in common ownership);

- illegal receipt of inheritance;

— invalidation of the apartment privatization transaction;

- sale of an apartment belonging to a minor without the consent of the guardianship and trusteeship authority, etc.

In order to identify legal risks when purchasing an apartment, as well as in order to eliminate and minimize them, it is necessary to conduct a legal examination of the transaction with the apartment, checking the relevant documents for the apartment, as well as documents related to the legal status of the seller of the apartment.

First of all, you need to check whether the apartment belongs to the person who declares himself its owner. To do this, you need to check the extract from the Unified State Register of Real Estate Rights, checking it with the passport of the apartment owner. Then, you need to check, using an extract from the Unified State Register of Real Estate Rights, whether the apartment is encumbered by the rights of third parties (mortgage, rental, gratuitous use, etc.). Also check if the apartment is seized.

If there is no information about the apartment in the Unified State Register of Rights to Real Estate and Transactions with It, it means that no transactions were carried out with the apartment after privatization. However, it should be borne in mind that information on transactions with real estate is entered into the Unified State Register from January 31, 1998 (clause 6 of Article 33 of the Law of July 21, 1997 N 122-FZ), therefore information on transactions with real estate before this date can be obtained either in the local administration (in Moscow the authorized body is the Department of City Property of Moscow and its territorial divisions), or in the Bureau of Technical Inventory, since until 1998 the function of maintaining a register of real estate was assigned to this body.

In this case, when selling an apartment, information about the apartment is first entered into the Unified State Register of Real Estate Rights, and then the transfer of ownership to the buyer of the apartment is registered.

An extract from the Unified State Register of Rights to Real Estate can be ordered either on paper (from the relevant territorial department of Rosreestr, or received in electronic form on the Rosreestr website).

Also check from the house register extract who lives in the apartment. If there are minors, obtain from the seller (preferably in writing) information about whether persons sentenced to imprisonment, declared incompetent (partially capable), missing or serving in the army on conscription are registered in the apartment. If there are such persons in the apartment, then the purchase of such an apartment carries an increased risk for the buyer. We need to investigate the situation thoroughly. The www.riskover.ru service will help with this.

It is also necessary to check the compliance with the law of the legal grounds for the acquisition of an apartment by its current owner (these grounds are indicated in the certificate of ownership of the apartment).

A list of documents necessary to identify legal risks is available on the website www.riskover.ru, intended for conducting a legal examination of a transaction with an apartment.

On this site you can conduct a full legal examination of documents related to an apartment transaction, identify all the legal risks present when purchasing or renting an apartment, and also understand what documents must be additionally presented by the seller of the apartment.

It is necessary to be especially careful when purchasing an apartment, which entails increased risks for the buyer:

— purchase of an apartment, the sale of which is carried out by the seller’s representative by proxy,

— purchase of an apartment, the sale of which is carried out by elderly people whose legal capacity is in doubt,

- purchase of an apartment, the sale of which is carried out by guardians of minors or persons declared incompetent,

— purchase of an apartment received by inheritance;

— purchasing an apartment that was resold several times in a relatively short period of time;

— purchase of a privatized apartment if there are persons who refused privatization (especially if minors lived in the apartment at the time of privatization, but the apartment was not privatized).

It is necessary to pay attention to the statute of limitations of the transactions on the basis of which the apartment was acquired by its current owner, since the statute of limitations for declaring transactions invalid is one or three years, depending on the grounds on which the transaction can be declared invalid (Article 181 of the Civil Code of the Russian Federation) .

If there are legal disputes regarding the apartment, the buyer needs to wait until they are completed and the court decision enters into legal force (it is highly advisable to also wait for the expiration of the period for appealing the decision that has entered into legal force).

Threat 3: “unexpected”

Experts recommend getting to know your neighbors in advance.
This type of fraud, such as selling an apartment using forged documents from a false owner, is not very developed in Belarus. The fact is that the authenticity of the documents is checked by a notary, and even if he believes in their authenticity, the fraud will be recognized during registration, so the swindler simply will not have time to receive the money.

Much more often, when buying an apartment, you may encounter unexpected surprises such as noisy neighbors, cockroaches and mold on the walls. Sellers most often hide such information so as not to scare away buyers. So buyers should do their best so as not to bite their elbows later.

“In real estate organizations, agents check the condition of the apartment and its surroundings - they go to the site and communicate with neighbors, whereas when buying a home on their own, many people forget to do this. Moreover, it is important to find out who lives in the neighboring apartments. Realtors can find out at the passport office whether persons who are in prison or are registered have lived,” Nikolay Prostolupov .

Recognition of an apartment seller as incompetent

Another of the main risks when buying an apartment is the recognition of the seller as incompetent, who may be mentally ill, suffer from a mental illness or be a drug addict. Such people are unpredictable and at some point they may simply want to return their property. If the court recognizes that the transaction was made by a citizen “...incapable of understanding the meaning of his actions or managing them at the time of concluding the transaction,” then this may serve as a reason to challenge the transaction (Article 177 of the Civil Code of the Russian Federation).

Just imagine, you finally bought the apartment you dreamed of, made good repairs, and six months or a year later the seller, suffering from mental disorders, appears with firm intentions to return his apartment. By and large, here you will not find yourself in the most advantageous position and risk instantly losing your home.

No one is immune from such risks, so to avoid them, we recommend conducting real estate transactions with the involvement of specialists. This way you will be calm and confident about the purity of the transaction.

Any questions? Then call us at (351) 729-82-20 or leave your request and we will contact you!

Experienced specialists are ready to advise you at MARIS-Real Estate.

Gray "helpers"

The flourishing informal sector in the country poses serious threats to buyers. For example, in Minsk, every fifth transaction is now carried out with the participation of a “gray” assistant.

“Unlike real estate organizations, whose activities are strictly regulated by the Ministry of Justice, practically no one is involved in the shadow market. If the situation does not change, then it is possible that the market may face the dominance of illegal brokers, as is happening in Russian cities,” the expert believes.

Risks when buying real estate

As a lawyer who practices in legal relations related to real estate transactions, I would like to talk about the risks when purchasing real estate, both in the secondary and primary markets. The secondary real estate market covers all residential and non-residential real estate put into operation. Primary – housing under construction and non-residential stock under construction.

Property rights in the Russian Federation are protected by current legislation, which is an important element of a legal society. But, almost every one of us has seen on TV, on the Internet or read in the press real and very sad stories about how our fellow citizens, bona fide purchasers, bought real estate, over which disputes later began, leading to their loss of this property. These situations are frightening and very often become the reason for reluctance to improve their living conditions. People do not understand the reasons for injustice, especially since the press, when publishing materials, does not always correctly describe the situation, and often completely turns the facts around. Their goal is to attract attention to their publications by manipulating the level of sensationalism of the material. As a result, the level of legal literacy of the population remains low and not systematized.

In this blog, I plan to examine one by one various situations that may lead to the loss of ownership, consider risk options when buying an apartment, and comment on real stories about the loss of ownership of real estate or legal disputes about it.

Today we will begin to talk about the risks associated with violation of the rights of minors during the privatization of an apartment.

Example:

Reference

The NGO “Belarusian Association “Real Estate” (BelAN) has existed since 1994. The association includes heads of the largest and most reputable real estate organizations, which occupy more than 60% of the real estate services market in the country. The goal of the association is to develop a civilized real estate market, including through the introduction of progressive working methods and the development of legislative acts. BelAN provides support to both its members and consumers in the real estate market.

Originally published here: tut.by

Be careful, children

It is known that housing on the so-called secondary market is often cheaper than new buildings. But the risks of losing a newly purchased apartment and money with such a purchase are greater. Especially if the seller is a family with small children.

It is impossible to invalidate a transaction based only on Art. 167 Civil Code

Few people know that the consent of the guardianship authorities required for such transactions does not mean anything. More precisely, it does not protect against possible problems.

RG experts discuss the legal aspects of housing transactions in the “Legal Consultation” section

The fact is that guardianship only authorizes the transaction on the condition that the small owners will be purchased housing of equal value to the one being sold. And if this condition is not met, then the purchase and sale transaction that has already been carried out can easily be considered illegal.

Our story began in the Chelyabinsk region. There, a certain citizen decided to sell the apartment in which her two minor children were registered. Each of them owned 1/3 of the share.

My mother received written consent from the guardianship authorities for the sale. Giving consent, the guardianship put forward a condition - the apartment can be sold if another housing is purchased at the same time, in which the children will receive 1/3 of the share. The purchase had to be reported to government agencies within a month after the sale of the home.

And then events developed as follows. The deal was completed. The new owner of the apartment paid for the purchase in full and celebrated a housewarming party. But she was unable to live peacefully in her new apartment.

The reason turned out to be that the previous owner, contrary to the agreement, did not purchase a new apartment for the children, which was mentioned in the consent of the guardianship authority. That is, the citizen violated the condition specified in the permit. The guardianship department demanded that the transaction be declared invalid under Article 168 of the Civil Code of the Russian Federation. This article talks about a transaction that is contrary to the law.

The upset new owner tried to defend herself and went to court. She argued that the guardianship of the transaction was illegal in the first place because it did not say how to pay the minor sellers and did not specify into which account the money should be transferred in the name of the minors after the sale of their shares.

She also found the following argument: when issuing the permit, they did not find out the opinion of the children’s father, and she, as a buyer, was not informed that the seller had to simultaneously buy housing for minors.

The local city court agreed with the guardianship's arguments entirely. And he satisfied the claim of the guardianship department, invalidating the apartment purchase and sale agreement. The property was returned to the property of the previous owner and her children. Well, the plaintiff, who never became the full owner of the new apartment, was awarded compensation in the amount of the cost of housing.

In its decision, the city court referred to Article 167 of the Civil Code, which talks about the consequences of an invalid transaction. But the Chelyabinsk Regional Court overturned the decision of its city colleagues and made a new decision, denying guardianship, and at the same time the plaintiff.

According to the appeal, the fact that the previous owner did not buy housing for her children and violated agreements with guardianship does not make the apartment purchase and sale agreement illegal. According to the appeal, the transaction was completed in compliance with all procedures, in fact it was executed and there are no grounds for invalidity. At the same time, the position in the court was explained by the provisions of Article 168 of the Civil Code, to which the first instance did not refer.

The guardianship did not agree with such a refusal and went all the way to the Supreme Court of the Russian Federation. There they studied the materials of the dispute and did not agree with the conclusions of the regional court. At the same time, the Supreme Court immediately referred to two articles of the Civil Code - Article 168 “Transaction contrary to the law” and Article 173.1 “Transaction without the consent of a government agency required by law.”

The Supreme Court of the Russian Federation indicated that the court of first instance could not invalidate the transaction based only on Article 167 of the Civil Code. This article does not establish the grounds on which invalidity is recognized. But these grounds are provided for in other articles of the same code - 168 “Transaction contrary to the law” and Article 173.1 “Transaction without the consent of a government agency required by law.”

The guardianship allows the transaction with the apartment if the children are bought equal housing. Otherwise the deal will be canceled

The Supreme Court emphasized that in the first instance they did not refer to any of these articles, and the appeal not only did not correct this error, but also incorrectly interpreted the norms to which it referred. This is what the Supreme Court drew attention to - the court based its decision on an invalid version of Article 168 of the Civil Code of the Russian Federation.

The appeal should have clarified on what grounds the plaintiff is challenging the transaction, and depending on this, determine what circumstances are significant for the dispute and affect the validity of the transaction or indicate its nullity, the Judicial Collegium for Civil Cases of the Supreme Court indicated.

And the regional court did not take into account that, according to Article 173.1 of the Civil Code, special grounds are established for invalidating transactions made without the necessary consent of a third party, a body of a legal entity or a government agency or local government body. According to the plaintiff, there was no basis for concluding that the transaction was made with the consent of the guardianship, because the defendant did not obtain consent to the alienation of real estate without providing the children with other housing, and this argument was considered important by the Supreme Court of the Russian Federation. The High Court also noted that there was no evidence of compliance with the children's rights - that the funds from the sale of the apartment ended up in their bank account or were spent in their interests. Therefore, he ordered the dispute to be reconsidered.