Laws

Last update: 12/18/2020

Question:

I'm buying an apartment. Is it necessary to have the Apartment Purchase and Sale Agreement certified by a notary? What is the point of this, and is it possible to do without a notary in a purchase and sale transaction?

Answer:

The short answer is yes. I mean, in most cases you can do without a notary in an apartment purchase and sale transaction. But there are important nuances!

It all depends on the type of contract being concluded, on whether you are the Buyer or the Seller of the apartment. And also - a transaction takes place on the primary market or on the secondary market. Let us explain in more detail.

Let us immediately note that in the primary real estate market (when purchasing a new building), notarization of contracts is NOT practiced. Contracts there are prepared by lawyers of the development company. True, in some cases it may be necessary (for registration) notarization of COPIES of the agreement. But this applies only to copies of the Equity Participation Agreement, and you need to understand that certification of a copy of the agreement and certification of the agreement itself are different things.

As for the notarization of the contract itself, this makes sense and is used in practice only within the secondary housing market. Therefore, further we will talk exclusively about transactions on the secondary market .

And in the secondary market there are several cases when the Apartment Sale and Purchase Agreement requires mandatory notarization . Such cases include:

• Sale of an apartment under a Lifetime Maintenance Agreement with dependents (Article 584 of the Civil Code of the Russian Federation);
• Sale of a share(s) in the right of common ownership of an apartment to an outsider, with the exception of the simultaneous sale by all participants in shared ownership of their shares under one transaction (clause 1, article 42, Federal Law-218 of July 13, 2015);
• Sale of an apartment belonging to a minor child or a citizen recognized as having limited legal capacity (clause 2, article 54, Federal Law-218 of July 13, 2015).

Failure to comply with the required notarial form for these types of real estate transactions entails their nullity (more on this below).

All other cases of alienation of an apartment under the Sale and Purchase Agreement can be concluded without notarization. The parties to the transaction then decide for themselves whether they need a notary or not.

So what is the meaning of notarial actions, and is it necessary to draw up and notarize the Apartment Purchase and Sale Agreement ? Let's look at this from the point of view of the Seller and the Buyer.

Conditions of the Agreement for the sale and purchase of an apartment on the secondary market. What is important here for the Buyer?

Do you need a notary when selling an apartment?

The seller of an apartment, oddly enough, does not really need a notary (except for the mandatory cases indicated above). Perhaps – for the comfort and convenience of the transaction procedure itself.

And it’s true, for the Seller the number one task is to receive money for the property sold, so all his interests are focused on the method of transferring money for the apartment. But the accuracy of the wording of the Sale and Purchase Agreement and the likelihood of its invalidity in the future are of little concern to the Seller. If the money is received, then all other possible problems will be the Buyer’s problems.

Even if the contract is drawn up with errors, and the transaction is ultimately not registered, the Seller will always remain his own - his ownership of the apartment will not go away. The same applies to the case when a transaction is disputed in court and declared invalid - then by a court decision the ownership right is returned to the Seller (only the entry in the Rosreestr database changes). But with the return of money to the Buyer, everything is much more complicated...

In addition, the vast majority of invalid real estate transactions are recognized by the court as such on the initiative (at the claim) of the Seller himself (or at the claim of third parties on his part). Therefore, the Seller has nothing to fear from what is unlikely to happen without his own desire.

Another thing is for the Buyer. He just has something to be afraid of!

Who can have the right to use the apartment? Surprises for the Buyer.

Do you need a notary when buying an apartment?

But here the situation is completely different. The buyer, parting with money, receives for it not so much a physical object, but the RIGHT to this object. And the right of ownership is a concept that contains many different legislative conventions, in the absence or violation of any of which, this right may be challenged, limited or completely invalid. That is why the Buyer, when purchasing an apartment, always risks more than the Seller, which means that careful study of the wording and terms of the contract is much more important for the Buyer. And here a notary .

How can a notary help here? First of all, by reducing the risks of the transaction for the Buyer of the apartment . How exactly?

The notary performs the following actions that exclude the nullity of the transaction and reduce the likelihood of recognizing it as invalid:

• Examines the terms of the transaction and prepares a draft Agreement for the sale and purchase of an apartment, taking into account these conditions and compliance with the law (i.e. the nullity of the agreement is excluded);
• Inserts additional conditions into the contract in separate clauses that protect the Buyer’s rights from possible restrictions and encumbrances (for example, conditions on deregistration of the Seller’s family members);
• Monitors the rights of spouses to the apartment and the need for written consent if one of the spouses is not among the owners (including checking the presence of a spouse in the registry office database);
• Monitors the rights of minor children, if they are among the owners or users of the apartment, and establishes the powers of their representatives (parents, trustees, guardians);
• Checks the validity of the power of attorney for the sale of the apartment (if the Seller acts under a power of attorney);
• By agreement of the parties, it may reflect in the contract the condition of additional financial responsibility of the Seller in the event of restriction of the Buyer’s rights in a claim of third parties;
• Establishes and certifies the identities of the parties to the transaction;
• May require additional documents to confirm the powers of the parties to the transaction (in addition to those documents required for its registration);
• The notary has direct access to information from the Unified State Register of Real Estate (i.e., he has the opportunity to verify the relevance of rights and the absence of encumbrances at the time of the transaction, as well as obtain information from the Unified State Register of Real Estate about the recognition of the apartment Seller as incompetent);
• The notary has access to closed databases of government institutions that are inaccessible to ordinary citizens, realtors and even lawyers (more on this below);
• Explains to the parties to the contract the meaning and legal consequences of the transaction they are making, making sure that it corresponds to the actual intentions of the parties (i.e. reduces the risk of invalidity of the transaction due to fraud, threat, violence, misconception, etc. - Article 178 and Art. 179 Civil Code of the Russian Federation);
• Talks with the Seller and the Buyer before signing the contract, making sure of their sanity, adequacy, and voluntariness of the actions they perform (i.e. reduces the risk of invalidity of the transaction due to the incapacity of the Seller - Article 176 and Article 177 of the Civil Code of the Russian Federation); the obligation to verify the legal capacity of the parties to the transaction (individuals) is regulated by Article 43 of the Fundamentals of the Legislation of the Russian Federation on notaries;
• Checks the legal capacity of legal entities and the powers of their representatives (if the apartment is sold by a legal entity);
• Certifies the authenticity of the signatures of the parties when concluding an agreement.

In addition, a notary is always a disinterested person (unlike a hired realtor, for example). The notary acts on behalf of the Russian Federation, he is independent of the parties to the transaction. And if it is challenged, the notarial act (certification of all the above actions) always has increased evidentiary value in court.

Notary Irina Myasnikova from St. Petersburg claims that only 0.07% of notarized contracts are contested, while every fifth of those executed in simple written form is contested.

Where does a notary get information for a real estate transaction?

First of all, the notary, of course, studies the documents presented to him regarding the transaction and talks with its participants. But besides this (important!), the notary has the opportunity to quickly receive and verify information through the state System of Interdepartmental Electronic Interaction (SMEV) .

This SMEV system allows authorized persons and departments to exchange information and quickly obtain legally reliable information from various official sources. For example, today notaries send electronic requests and quickly receive information from Rosreestr, the Tax Service, the Ministry of Internal Affairs, banks and other authorities.

In addition, since 2021, notaries have gained access to the Unified State Register of Civil Status Records (USR Civil Registry Office). In other words, a notary can now have “hot” access to information about birth, death, adoption, marriage, divorce, etc.

In the near future, electronic interaction through SMEV between notaries and the FSSP is expected, as well as interaction with the Ministry of Internal Affairs in terms of verifying the authenticity of identity documents of a citizen, his representative, or an authorized representative of a legal entity.

In addition, each notary has prompt access to the Unified Notary Information System (UIS) , which records all notarial acts performed by all notaries in Russia (confirmation here). This also helps to quickly check information related to a real estate transaction (for example, issued and revoked powers of attorney, inheritance cases, notarized consent of spouses for a transaction, etc.).

It is obvious that thanks to access to these SMEV and EIS systems , the value of a notary in residential purchase and sale transactions increases significantly. An ordinary citizen (read: Apartment Buyer) does not have access to this data.

According to RBC, with the help of such electronic control means, notaries are already actively suppressing attempts at fraud in housing transactions - quote:

In 2018–2019, notaries were able to identify and stop many times more fraud attempts than in 2017. The Federal Chamber of Notaries attributes this to the advent of powerful electronic controls.

How to buy a mortgaged apartment that is pledged to the bank? 3 ways - see the link.

If everyone agrees

Most of the innovations will concern motorists and property owners. Changes will also await working pensioners. In Russia, the procedure for conducting real estate transactions for owners with equity participation is being simplified. Now such transactions do not need to be certified by a notary if all share owners agree to draw up a simple agreement. However, the legislation provides exceptions to this rule. Thus, transactions for the alienation of real estate or shares in the right to it belonging to incapacitated and minor owners are still subject to mandatory certification by notaries.

In addition, if as a result of the transaction the share of only one owner is alienated, then notarization will be required. And if at least one share owner opposes drawing up the agreement in simple written form, then you will still have to contact a notary. The same law allows legal spouses to register joint ownership of an apartment, house, land plot, room or share in the right to these real estate objects in simple written form.

This is important to know: Take out a mortgage on a share in an apartment in Sberbank

But the rule does not work if spouses acquire real estate as shared ownership. It is worth noting that shared ownership is quite common in Russia. Thus, according to Rosreestr, more than 65 million rights of common shared ownership of individuals are registered in the Unified State Register of Real Estate. The amendments will allow citizens who intend to sell property quickly by mutual decision to exercise their rights as quickly as possible and significantly reduce the financial costs of completing the transaction.

In addition, the State Duma adopted in the second reading a bill banning the sale of micro-shares in apartments. This document provides a rule according to which the formation of shares may be limited. The size of the share should allow the owner to exercise his rights to move in, subject to the established housing accounting standards.

There are also exceptions to this rule: privatization, inheritance, the emergence of shared ownership in accordance with the law. There is also a restriction on the rights of the owner to move third parties into the home, with the exception of children and parents, if this results in violation of housing standards. It is assumed that these innovations, among other things, will help protect citizens from raiders. The abolition of the mandatory notary fee will reduce the financial burden on citizens, as well as simplify the process of turnover of real estate that is in common shared ownership.

Starting from August 1, the state fee will be canceled when making changes to the records of the Unified State Register of Real Estate in connection with the intention to take a mortgage holiday. Currently, the fee is rubles. From August 4, all Russians will have one more line in their payment documents for utility services—real estate insurance against emergencies. At the same time, housing insurance will remain voluntary. Each region will be able to establish the list of insurance risks independently.

According to the new law, damage to victims will be compensated based on the average market value of a square meter of housing, approved by the Ministry of Construction of the Russian Federation. Those who refuse insurance will only be able to count on minimal government assistance in the event of an emergency. Lawmakers have made life a little easier for motorists. Thus, from August of this year, it will be possible to register a purchased car through the manufacturers or directly in the showroom of an official dealer.

The format of the license plates themselves will also change. Plates suitable for mopeds, motorcycles, vintage cars, as well as Japanese and American cars and trucks will be added to the usual license plates.

It is worth noting that the existing license plate standard has been in effect for a year and is seriously outdated. On Russian roads today there are many more foreign cars for which Russian license plates simply do not fit. It is important to note that from November of this year, it will be possible to register a car only if you have an electronic vehicle passport. Paper PTS will remain in use, but they will no longer be issued. From August 1 this year, older Russians who are still working will receive an increase in their pensions.

The size of the supplement will be rubles. It is worth noting that payments to this group of pensioners have not been indexed since the year. Recalculation is carried out based on accumulated pension points. To do this, the length of additional work experience, as well as the size of the salary, are taken into account. Currently, three points are used for recalculation.

Additional points are expected to be counted next year. The recalculation will be made on the basis of the insurance period for the past year, for which the additional payment is made. The Russian government says that the process of indexing payments to working citizens will require additional costs of billions of rubles annually.

Therefore, the August recalculation is now the only mechanism for increasing pension provision for this category of citizens.

It is worth adding that, unfortunately, non-working pensioners will not receive any additional bonuses this year. According to the Russian government, the next planned indexation of pensions for non-working pensioners is expected only this year. In mid-August this year, the rules for carrying fruits and flowers in checked luggage and hand luggage will change.

Now it will be possible to import into the territory of the Russian Federation no more than five kilograms of fruits or vegetables and no more than three bouquets of flowers. In order to freely cross the border with a larger batch of these goods, you will need to obtain special accompanying documents.

In this case, the rules will apply not only to all passengers traveling by air, land and water, but also to all postal items. But the practice of applying the rule has shown that the life of co-owners who have no conflicts regarding real estate and its alienation has only become more complicated with the introduction of mandatory notarization of such transactions.

The new law puts everything in its place, maintaining increased attention to the alienation of individual shares, and freeing those co-owners who dispose of property on the basis of a joint decision from unnecessary paperwork.

Also, a reasonable consequence of simplifying document flow seems to be the rules associated with changing the standard of license plates and the procedure for their issuance. As for real estate insurance, this innovation should be given special attention. Those regions in which such a service will appear first are unlikely to notice the changes or seriously assess the risks.

However, for many regions of our country, where natural disasters have become practically the norm and annually cause damage to citizens' property worth hundreds of millions of rubles, this norm is a turning point. Subscribe to us in Yandex. In August of this year, several legislative acts and regulations will come into force at once, which, one way or another, will affect the lives of Russian citizens.

Significant changes await the food security doctrine in Russia. The Ministry of Natural Resources spoke about changes in environmental standards for Lake Baikal. Volodin allowed the Constitution of the Russian Federation to be changed. Week Month. The expert provided further evidence that birds did not fly into engines A.

Volgograd news.

Video recording and legal protection

Since 2015, a notary has been granted the right to videotape transactions he certified (see the law on this here). This further increases the evidence base in case of attempts to challenge transactions certified by a notary.

Video recording of the process allows us to confirm that the notarial act was performed in accordance with the law, in the presence of specific citizens, and that the citizens themselves acted voluntarily and were of sober mind and clear memory. A citizen’s refusal to video record notarial actions is a reason to be wary and take an even more careful approach to checking documents and the citizen himself. This is confirmed by the Federal Chamber of Notaries (see here).

In the event of a subsequent challenge to the transaction and litigation on it, the notary can act in court as a third party to confirm the actual terms of the transaction, as well as the sanity and true intentions of its parties.

The notary also confirms such a legally significant detail as the good faith of the purchaser of the apartment. And the notary’s testimony, in this case, significantly influences the outcome of the court decision.

Thanks to all this, the risks of challenging the transaction for the Buyer of the apartment are significantly reduced on a number of grounds.

Preliminary agreement for the purchase and sale of an apartment - 3 types, nuances, legal consequences.

How else can a notary be useful in real estate transactions?

Particularly valuable is the participation of a notary in complex alternative transactions for the purchase and sale of apartments, as well as in transactions involving elderly people. For example, if a dear old lady who sold an apartment suddenly wakes up a month later and declares that she didn’t sell anything, and the damned adversaries deceived or forced her, then the best protection for the Buyer will be a notary’s certificate .

If there is any doubt about the adequacy and capacity of the Apartment Seller at the time of signing the contract, the notary may suspend the transaction and invite a medical professional for a medical examination. An official medical certificate will be a serious defense for the Buyer in case the transaction is contested due to the Seller's insanity.

The notary will also be extremely useful to the Buyer in the case when the Seller sells the apartment by proxy. The notary must check whether this power of attorney was actually issued and whether its contents have changed at the time of the transaction. If the power of attorney is revoked at the time of the transaction, then the transaction itself will also be invalid.

A minor child in an apartment purchase and sale transaction. What to do? See the corresponding step of the Instructions.

Convenience of transactions, registration and mutual settlements

Additional reasons for drawing up an apartment purchase and sale agreement with a notary are the convenience of the transaction process itself and quick registration. The convenience lies in the fact that all participants in the transaction are located in the notary’s office and act under his leadership, and he himself acts as an independent arbiter in case of disputes (and there are usually enough disputes between the participants in the transaction process). After which the notary himself submits documents for registration and receives them back, and the registration of the transfer of rights under a notarized Apartment Sales and Purchase Agreement is much faster.

at a notary’s office , you can very conveniently and safely carry out monetary settlements under a transaction - through a notary’s deposit (official service - see the link).

Transfer of money in alternative apartment transactions. Don’t get confused – who goes where and how much! For the procedure , see the link.

How to purchase a share in an apartment, list of documents for sale

The list of documents includes the following acts:

1. Passports.
2. Consent of other owners.
3. Consent of the guardianship and trusteeship authorities (if necessary).
4. Property documents.

In a situation where we are talking about state registration of the transfer of rights, in addition to the above documents, it is also necessary to provide a notarized agreement. Registration can be done both at Rosreestr authorities and at multifunctional centers.

Purchase and sale of a share in an apartment between relatives, agreement sample

purchase and sale agreements between relatives here.

The notary is “responsible in rubles” for his actions

Among other things, the notary's liability is insured . And if his insurance limit is not enough, then there is also collective insurance in regional notary chambers. In addition, a notary is responsible for damage caused with all his property (unlike an ordinary lawyer and, especially, a realtor). We are talking here about cases where damage occurs due to the fault of a notary , i.e. if he made a mistake or performed his duties improperly.

Confirmation that notaries in such cases really “respond in rubles” is given on the website of the Federal Notary Chamber - here (with examples of payment of compensation).

Additionally, the responsibility of notaries is ensured by a special compensation fund of the FNP (Federal Notary Chamber). This fund began operating in January 2021. Funds from it are used to compensate for losses incurred by the notary's clients or third parties due to his fault, if his insurance is not enough to cover these losses.

Official information on the composition of the FNP compensation fund is here.

Legislatively, this fund is described in article 18.1 of the “Fundamentals of the legislation of the Russian Federation on notaries.”

Notaries are also respected in banks. When purchasing an apartment with a mortgage, the creditor bank, for example, may require the Buyer-borrower to have the Sale and Purchase Agreement certified by a notary. By this action, the bank further reduces its risks.

What to do if you bought an apartment with utility debts? See this post at the link.

New rules for selling a share in an apartment

The main problem is the increasing cost of services. Previously, before the adoption of the law, to conclude a transaction it was enough to draw up a purchase and sale agreement for an apartment or house. But with the advent of amendments to the bill, persons participating in the transaction must now pay a fee for notary services.

Starting from 2021, non-residents may not pay personal income tax when selling property that they have owned for more than the minimum established period. If the apartment was owned for less than the established period, the sales tax will be 13%, regardless of residence.

To determine the specific part of the apartment that belongs to a person, you can carry out the procedure for allocating a share. The main requirement is that all other homeowners must be informed about this.

In December 2021, the State Duma of the Russian Federation approved amendments to the tax code, according to which non-residents who sell property in Russia may not pay sales tax.

In this case, you need to wait a month. After this period, the ransom is automatically rejected, even if there is no response.

It should be noted that if the owner’s share in the apartment is less than the size established by law, then he will not have the right to fully dispose of it, but can be registered on the territory of the given residential premises. That is, he will not be able to sell or give it away, but he has the right to use it for the purposes of residence and permanent registration.

The notary is responsible for ensuring that fraudulent schemes and situations where one of the parties is infringed on in rights or interests are excluded from the process. The Home Shared Ownership Act increases stricter controls on such transactions involving minors. One of the measures is the mandatory provision of notarization.

There is a restriction on the owner’s right to move in “third parties” if, as a result, each person ends up with less than the accounting norm for the area of ​​the residential premises. One of the amendments introduced after the first reading states that moving into a share less than the norm is allowed only in certain cases, for example, by court, or if it is a child or parents of the owner.

Housing issues can become a real problem for a homeowner. Especially when it comes to selling a share in an apartment. Situations when such a need arises happen very often. The reason may be the divorce of a married couple or the inheritance of a share, as well as an urgent need for a large amount of money.

The possibility of carrying out such transactions led to the formation of a number of fraudulent schemes, in particular those related to the acquisition of several small shares in one premises for the purpose of the further survival of its real owners. In a word, the result of allowing the sale of microshares was numerous scams and deceptions of ordinary citizens.

This is important to know: Details and information about the document confirming ownership of the premises

The notary helps, but does not guarantee...

Despite all the facts listed above, you need to understand that the notary ensures the legality and legality of only the current transaction . And it is precisely according to the legality of this particular transaction that he is responsible with his property. What happened to the apartment BEFORE this, how legal the previous transactions with it were, the notary does not find out, because this is no longer within his area of ​​responsibility. In addition, the notary is guided only by the documents presented to him and draws conclusions based only on these documents, nothing more.

Therefore, a notary never fully accompanies a transaction (like a realtor or a lawyer, for example), does not find out the origin of documents, does not require “optional” certificates to certify the contract (certificates from the IDP, for example, or Extracts from the House Register), and does not look for “pitfalls” “in the transaction and calculating possible “third parties”, is not interested in the history of the apartment, previous owners, etc. Such actions are not included in the list of notarial procedures.

Of course, the notary does not cover absolutely all the risks of a transaction with an apartment , but still significantly reduces many of them. In other words, a notarized Apartment Sale and Purchase Agreement is much less likely to be challenged in court , and the likelihood of it being declared void is practically excluded.

How you can exchange your apartment for another - 3 ways. See the link.

The Supreme Court put an end to the dispute between homeowners and micro-shareholders

Most of the innovations will concern motorists and property owners. Changes will also await working pensioners. In Russia, the procedure for conducting real estate transactions for owners with equity participation is being simplified.

A few square meters in an apartment is not a reason to move in. The Supreme Court put an end to the dispute between homeowners and owners of so-called microshares. Conflicts on this basis arose regularly. The raiders turned people's lives into a nightmare.

Five traps you can fall into when buying a share in an apartment

Shared ownership in real estate is not a simple matter at all. For example, according to the law, if there are two owners of an apartment, and one of them decided to sell his part, then the second owner has the priority right to purchase. But what to do if we are not talking about a purchase and sale, but, for example, about a gift, or an unbearable loan secured by real estate? The co-owner can only find out about what happened when they knock loudly, sometimes even with a sledgehammer. Burglary of an apartment in front of the owners. Residents are pushed away from the door and the lock is knocked out with a hammer. The Ivakin family was able to repulse this attack, but they are waiting with fear for the next one.

This is important to know: Can their only home be taken away for loan debts in 2021?

Report on how to defend your property if an aggressive neighbor has moved into your apartment

President Vladimir Putin signed a law that obliges Russians to notarize all transactions related to the alienation of a share in real estate. This document is posted on the official legal information portal. The sale of a share in an apartment without certifying the transaction from a notary was banned back in December of this year. However, the innovation did not affect those who sold a share to the current owner of part of the living space: contacting a notary became mandatory only in the case of selling property to a new buyer who was not previously associated with this property.

Now the tax office will take into account not only the cost of the apartment specified in the purchase and sale agreement. Tax officials will make their own calculation - they will multiply the cadastral value of the object by a factor of 0.7, and if the amount received is higher than indicated in the tax return, the cost will be calculated based on the result obtained, and not on the one indicated by the citizen. Many people of retirement age who do not have a permanent place of work and decide to sell some of the real estate they own are wondering: how is the tax on the sale of an apartment for pensioners calculated per year, does the new law provide for any benefits for them or No.

Share in an apartment new law 2021 2021

Getting a mortgage, buying or selling real estate in Russia will become easier with shared ownership. If all participants agree, then the transaction will not need to be certified by a notary. But if at least one share owner refuses to take part in the transaction, the rest will have to contact a notary for the proper execution of the agreement.