What is what
Exchange of housing is a transaction in which two parties transfer to each other objects of equal value in their opinion, the owners of which they are . In this case, the rights to the property are transferred to each party, similar to a purchase and sale transaction.
Housing exchange is a transaction under which tenants of state-owned housing exchange apartments and renew rental contracts.
In this case, the consent of the lessor must be obtained, and certain mandatory conditions must be met.
"Subtleties" of exchange
Under an exchange agreement, it is assumed that the property that is transferred under such an agreement from one person to another is considered to be of equal value.
The exchange agreement is a compensated transaction; all rules on compensated transactions apply to it:
- taxation
- pre-emptive right to purchase from other share owners
- the right of a spouse to half of the property received by the other spouse in the exchange, etc.
It is preferable not to draw up an exchange agreement if the issue of taxation remains open when the property is owned by the changing party for less than 3 years, i.e. subject to taxation. In this case, it is necessary to determine the cost of apartments in order to minimize taxation or completely avoid tax.
Another difficulty in such a transaction may be the situation when exchanging a share of real estate, when the owners of other shares have the right of first refusal, but do not have the opportunity to offer the owner what he would like to receive in exchange.
Differences between barter and exchange contracts
- The most basic difference is that in my case the housing must be owned. That is, one owner transfers his apartment to another under an agreement, then the transaction is registered in Rosreestr, and the certificates of ownership are redone for the new owners.
- During the exchange, housing is municipal; people live in it under a rental agreement. The exchange of social housing is formalized differently - after registering the transaction in Rosreestr, landlords re-issue tenancy agreements for new residents. In this case, only the right to use the apartment passes to the new owners, as was the case with the previous housing.
- You cannot exchange municipal housing for your own and vice versa.
- Exchange and barter are governed by different laws. The exchange of housing refers to transactions that are controlled by the Civil Code (Chapter 31), and the exchange is carried out in accordance with the Housing Code (Article 72).
When an exchange agreement is impossible
An exchange agreement is not possible in the case where apartments located in different constituent entities of the Russian Federation, for example, in Moscow and the Moscow region, are subject to exchange. The transfer of ownership of real estate, as well as the contract itself, must be registered at the location of the property. Thus, if there are two objects in different regions, registration of an exchange agreement becomes impossible.
In addition, an exchange agreement cannot be concluded when one of the objects of the transaction is a municipal apartment, and the other is an apartment registered as property.
Features of the exchange agreement
The exchange agreement is drawn up in writing, and it must contain the following information:
- data of both parties (full name, passport details, registration);
- information about the exchanged housing (name, address, area, cost);
- on what basis the apartments belong to the parties (most often the number of the certificate of ownership and the agreement under which the apartment was received);
- Additionally, you can indicate the features of both apartments - on what floor it is located, the type of house (panel, brick and others),
- the presence of a balcony or basement, how many rooms, what kind of heating, what kind of built-in appliances and furniture remain, and others;
- It is worth mentioning as a separate point that the apartment is not under arrest or pledged, there are no encumbrances;
- a mandatory point - the contract must contain a list of people who had the right to the old apartment (in the new apartment they must have exactly the same rights);
- the period during which the parties must vacate the apartments and transfer them to each other.
These clauses are included in every barter agreement. But deals are different, so there are some additional conditions
Exchange agreement - differences from exchange, features of filling out
It may include the presence of funds, but always becomes a fixation of the direct exchange of property.
An oral exchange agreement is possible only in two cases:
- if the agreement is concluded between citizens for an amount less than 10 minimum wages;
- between any subjects, if the contract is executed immediately upon its conclusion.
Usually, when exchanging a privatized apartment for a non-privatized one, the privatized apartment is alienated through the conclusion of a donation or sale agreement in favor of the person moving into this apartment.
If additional payment is needed
It is not always possible to find apartments of equal value. In this case, the party whose housing costs less must pay the other party the difference. Moreover, the additional payment can be not only money. You can also transfer securities or some other property .
All this must be indicated in the contract. Sometimes people do not want to pay tax, and they ask not to indicate the amount of the surcharge in the contract. They write that the apartments are of equal value. This is dangerous because after registering the transaction, you may no longer receive the additional payment.
In addition, if the difference in the cost of housing is too obvious, this issue will definitely be of interest - first to the authorities registering the transaction, and then to the tax authorities.
For example, the parties exchange a one-room apartment in an old building for a two-room apartment in a new building, and even in good repair. The contract states that the apartments are of equal value. Obviously, such a transaction may raise suspicions, which will entail various delays and troubles.
It is better to indicate exactly the amount of additional payment in the contract
Additionally, sanctions can be provided in case the additional payment is not paid on time. For example, a certain percentage of the total amount for each day of delay.
You can download a sample apartment exchange agreement in our document catalog.
Exchange of shares in an apartment
In this case, the contract is drawn up as usual. Instead of information about the apartment, information about the share in the apartment is indicated. In this case it should
specify the size of the share.
An important nuance is that barter is equivalent to purchase and sale, so a share in the apartment must first be offered to the other owners of this apartment. A document confirming this must be attached to the contract. For example, notarized consent of other owners for sale or exchange.
If it is difficult to obtain such consent, you can go another way. By law, the owner must notify the other owners in writing that the share is being sold. Within a month, they must indicate that they want to exercise their right and buy a share. Such notices may be sent by registered mail. If after a month there is no response, a copy of the letter with a mark on the date of receipt will be proof that all the requirements of the law have been met.
If there are minors in the apartment
In this case, the consent of the guardianship authorities will be additionally required. To obtain such consent, you will have to prove that the children are moving to better conditions. Also, according to the exchange agreement, children must receive the same number of meters as they owned in the old apartment, or more.
It is better to indicate in a separate clause in the contract that the consent of the guardianship authorities has been received. The details of this consent are also indicated.
Living quarters in dormitories are a budget-friendly choice.
You will find out where migrants and refugees can live in our useful article.
You will learn how to rent an apartment correctly and not get into trouble at https://zakonometr.ru/arenda/sdacha/snjat-kvartiru-ot-hozjaina.html link.
But what is the difference between exchange and barter? After all, they still change apartments. | Ivanovo
No difference. Exchange, barter agreement.
In relation to apartments, it is usually called “exchange”
Article 72. The right to exchange residential premises provided under social tenancy agreements
[Housing Code of the Russian Federation] [Chapter 8] [Article 72]
1. The tenant of residential premises under a social tenancy agreement, with the consent in writing of the landlord and members of his family living with him, including temporarily absent members of his family, has the right to exchange the residential premises occupied by them for residential premises provided under a social tenancy agreement to another to the employer.
2. Members of his family living together with the tenant have the right to demand from the tenant the exchange of the residential premises they occupy under a social tenancy agreement for residential premises provided under social tenancy agreements to other tenants and located in different houses or apartments.
3. If an exchange agreement has not been reached between the tenant of a residential premises under a social tenancy agreement and the members of his family living with him, any of them has the right to demand a forced exchange of the occupied residential premises in court. At the same time, attention-worthy arguments and legitimate interests of persons living in the exchanged residential premises are taken into account.
4. The exchange of residential premises that are provided under social tenancy agreements and in which minors, incompetent or partially capable citizens who are members of the families of the tenants of these residential premises live, is allowed with the prior consent of the guardianship and trusteeship authorities. The guardianship and trusteeship authorities refuse to give such consent if the exchange of residential premises provided under social tenancy agreements violates the rights or legitimate interests of these persons. Decisions of the guardianship and trusteeship authorities to give consent to the exchange of living quarters or to refuse to give such consent are made in writing and are provided to applicants within fourteen working days from the date they submit the relevant applications. Providing applicants with decisions of guardianship and trusteeship authorities on giving consent to the exchange of living quarters or on refusing to give such consent can be carried out through a multifunctional center.
5. The exchange of residential premises provided under social tenancy agreements can be made between citizens living in residential premises located both in the same and in different settlements on the territory of the Russian Federation. The exchange of residential premises is carried out without limiting the number of participants, subject to the requirements of Part 1 of Article 70 of this Code.
Article 567. Barter agreement
[Civil Code of the Russian Federation] [Chapter 31] [Article 567]
1. Under an exchange agreement, each party undertakes to transfer one product into the ownership of the other party in exchange for another.
2. The rules on purchase and sale (Chapter 30) are applied to the exchange agreement, if this does not contradict the rules of this chapter and the essence of the exchange. In this case, each party is recognized as the seller of the goods, which it undertakes to transfer, and the buyer of the goods, which it undertakes to accept in exchange.
