Legislation on the purchase and sale of apartments with minor residents

The Housing and Civil Codes provide for the development of measures to protect the housing and property interests of the child. To this end, there are a number of standards, including:

• Article 20 of the Civil Code of the Russian Federation - place of residence of the child;
• Articles 130, 131, 292 of the Civil Code of the Russian Federation - transfer of rights to real estate;
• Articles 26, 28, 37 of the Civil Code of the Russian Federation - the rights of a minor;
• Article 27 of the Civil Code of the Russian Federation - emancipation;
• Article 60 of the RF IC - property of a minor (ward);
• Article 70 of the Housing Code of the Russian Federation - registration of the child;
• Articles 19–20 of the Guardianship Law.

A significant role is played by the provisions of the Law of December 29, 2006 No. 256-FZ on the registration of an incompetent tenant in an apartment purchased with funds from the Maternity Capital certificate, which is provided for by the Government of the Russian Federation of December 4, 2009 No. 994.

When guardianship authorities allow the sale of real estate belonging to children

Regulatory rules for disposing of the property of minor wards are established by the Civil Code (Article 37, paragraph 2); they directly prohibit any alienation transactions regarding this property without the approval of state guardianship authorities.

First of all, government agencies monitor the possible deterioration of children’s living conditions or their loss of housing as a result of a transaction, for example, the sale of an apartment. However, there are no clear definitions that allow one to expect in advance when the guardianship authority will approve and when it will prohibit the transaction. Of course, the refusal of the state agency of guardianship and trusteeship must be written and motivated; it can be challenged in court.

With a high probability, the guardianship will approve a transaction with the child’s real estate if it is obviously beneficial to the minor - in return, real estate of a similar or larger area is purchased in his name. The guardianship department will most likely grant permission if exceptional circumstances arise for the child, for example, if he needs to pay for his treatment. But, in any case, the final decision remains with the guardianship service.

Possible risks

Despite the fact that the well-being of the child depends on his parents and is their responsibility, the relocation of a minor affects the interests of the buyer and may affect the outcome of the transaction. The main problem that can be seen in this regard is the compromise between the property interests of the child registered in the apartment and the buyer’s claims for unhindered use of the property.

Buying an apartment with a child registered in it carries the following potential risks:

1. Intentional dishonesty of legal representatives who, after the transaction, refuse to discharge the child.
2. Technical problems in preparing documentation that will not allow the transaction to be registered with Rosreestr.
3. Deterioration of the child’s living conditions in the new premises, which will entail the refusal of the guardianship authorities to approve the transaction and require the return of the previous apartment.

The most unpleasant moment for the new owner is that the money for the transaction has already been paid. Termination of the purchase and sale agreement (SPA) will entail restitution - it will be necessary to bring the property status of the parties to the one that existed before the transaction. Accordingly, the apartment with the children will be returned to the seller immediately. The issue of refund will depend on the integrity of the counterparty. If the seller officially, in the presence of the court, declares that he has no money, then monthly payments will be required from him, which will delay the return of funds invested in housing for many years.

In my practice, there have often been cases of irresponsible attitude towards purchasing an apartment with a child registered in it. The consequences of this turned out to be the most unsightly. Often, the legal representatives subsequently refused to discharge the child or teenager, and the new owner of the apartment had to challenge the deal in court, and sometimes even wait until the unwanted tenant came of age.

The best way out of the situation is to ask the seller to register the child with the mother before the transaction. Perhaps the baby’s mother, his father or grandparents have living space. If this method is not suitable, in the terms of the purchase and sale agreement, special attention must be paid to the obligation to issue an extract and liability for failure to meet deadlines. Discharge after concluding an agreement without the mother’s consent can only be carried out through the court.

Registration of the seller’s extract with the child is registered in the house or apartment register

Specifics of the purchase and sale if registered children are under 14 years of age

Until the age of 14, children can only dispose of things that belong to them, donated items, and even then in a limited format - without having the legal right to even sell a personal item. As for larger property transactions, for example with real estate, they do not yet acquire any legal capacity. Accordingly, nothing depends on them, and the law is quite strict about ensuring that the child is not discharged “to nowhere.” Such a tenant can only be discharged from one apartment to another, with improved conditions or to an equivalent one. Purchasing housing that allows for the deliberate deterioration of a child’s life is categorically unacceptable.

The legal representatives of children under 14 years of age are parents, adoptive parents and guardians. At this age, children must live and be registered only with their mother. And to be discharged only with her consent. Registration at the place of residence of the father or guardian is permissible only in the following cases:

• with the consent of the mother;
• in its absence;
• after deprivation of her parental rights.

Buying an apartment where a minor child is registered

1. passports of parents (or guardians) and birth certificates of children;
2. a certificate that the apartment is your property;
3. documents for a new home (copies);
4. a certificate with information provided on the cost of the housing being sold and purchased. These documents can be obtained from the BTI;
5. check out from the apartment.

Legal capacity is the ability of a person to exercise rights and have obligations through his actions. Legal capacity arises after a person reaches the age of majority, with the exception of emancipation and marriage of a person from the age of 16. If the child simply has a registration, then there is no need to apply for special consent from the guardianship authorities, another problem arises - it is impossible to discharge the child from the living space without subsequent registration, and the buyer is unlikely to give his consent to the purchase of a property where the child will have a registration .

We recommend reading: Who will get the apartment after death?

Features of the procedure if children are from 14 to 17 years old inclusive

Upon reaching 14 years of age, a teenager already has partial legal capacity, as he receives a passport of a citizen of the Russian Federation with registration at his place of residence. He cannot yet be discharged “to nowhere”, like a younger child. But here it is already allowed for him to live separately from his parents. For example, it can be prescribed by your grandparents.

From the age of 14, a child can be registered with his grandparents without parents

And if he has received officially recognized emancipation (according to the provisions of Article 27 of the Civil Code of the Russian Federation), he can live in a hostel or in a rented apartment where registration is allowed. This is a significant advantage for a buyer who purchases an apartment with children of a specified age living in it.

However, when changing living space, the question arises of whether the new premises, which will be purchased for permanent use, meet the interests of the child. For example, if a baby can have a sleeping place in the parents’ room, then for a teenager there are requirements for a separate room. These and other improvements are desirable, but limited by financial capabilities.

If the teenager himself is not the owner of the entire apartment or a share in it, he has practically no influence on the procedure for drawing up an agreement and does not participate in it.

Features of the transaction if a minor is the owner of an apartment or share

If a minor is the owner of the home, the transaction procedure becomes more complicated and depends on his age. In any case, the transaction is subject to basic requirements:

1. The responsible persons when concluding a transaction are the legal representatives. Authorized representatives can only be involved by proxy from legal representatives.
2. The guardianship and trusteeship authorities must provide permission to sell, without which the transaction is considered illegal and is not subject to registration in Rosreestr (Articles 20, 21 of Federal Law No. 48 “On Guardianship and Trusteeship”).
3. The DCP must be certified by a notary (Article 163 of the Civil Code of the Russian Federation).

When the owner has not yet received a civil passport and has not reached 14 years of age, legal representatives act in his interests. They independently or with the help of a realtor organize viewings of the property, submit advertisements to find buyers and set an acceptable price. The conclusion and registration of the contract is also carried out by them.

Provided that the young owner receives a civil passport - from 14 years of age until adulthood or emancipation - he can participate in the transaction himself . Then the procedure is carried out according to the following rules:

1. The minor seller participates in the search for a buyer, showing the property and is fully informed by adults about the purposes of selling the home. If he does not want to sell his apartment or share, then forcing him to carry out the transaction is unacceptable.
2. When drawing up a contract, the young owner is included in the contract as a party to it - he acts as the seller.
3. The subject of the agreement includes information about the owner, and not about the legal representative who acts in his interests, and his passport details are indicated.
4. The teenager independently signs the contract and other transaction documentation.
5. The legal representative is present at the conclusion of the contract and next to the signature of the young owner puts his resume, which indicates the guarantee of the legal capacity of the minor’s signature.
6. The same thing happens when transferring documentation for registering a transaction: next to the minor’s signature, a certification signature of an authorized adult is placed. It is entered with the wording: “I certify the signature of the Seller (full name).

The owner who has received a passport has the right to express his attitude towards the purchase and sale of an apartment, even if he is under 18 years of age

Approval of the transaction by the guardianship and trusteeship authorities is necessary to ensure that the interests of the child are respected. Legal representatives must justify to the guardianship that they are acting in accordance with the interests of the minor and are disposing of the property in the way that is best for the child - the owner of the apartment or share. Before concluding a transaction, they receive permission from the guardianship authorities to conduct it, and then report on the proceeds for the apartment. This situation is especially biased when a minor is under guardianship and the guardian is not the owner of the apartment (the housing belongs to the teenager).

Guardianship and trusteeship authorities pay special attention to the financial side of the issue. They do not cooperate with purchase and sale transactions when the market value of the property is higher than the amount received in the transaction.

However, according to some reviews, everything is not so simple, and sometimes guardianship does not give permission to sell the only home registered in the name of children if the parents do not have other residential property.

We sold and bought in the fall of 2021 with children's shares, allocated in proportion to the cost in the new apartment! And not just squares. If children own the only home, they will not be allowed to deposit money into the account. The only thing is, maybe if you move to another region. But even that is not a fact.

Domina

https://www.detkityumen.ru/forum/thread/686676/

In this case, the buyer should be careful, because the entire success of the transaction depends on the integrity of the child’s legal representative. And the slightest violation of the requirements of the guardianship authorities will jeopardize the sale of the apartment.

Step-by-step instructions: how to buy an apartment with a registered minor

If the children are not discharged from the apartment, the conditions and algorithm for the purchase and sale transaction change. New significant circumstances come into play that cannot be ignored.

What to do if there is a minor among the seller’s family members

You can identify the presence of a tenant under 18 years of age who is registered in the purchased living space as follows:

• from the seller's words:
• by checking the entry in the apartment register;
• having received an extract from the apartment register.

This document indicates the last name, first name, patronymic and date of birth of the registered persons. All that remains is to calculate how old the residents are now.

If a minor is registered in an apartment offered for sale or purchase, you need to ask the owner the following questions:

• Is it possible to discharge children to another living space before the transaction begins;
• if not, for what reason?
• whether the mother or father of the child has any residential property they own;
• if not, what kind of living space do the grandparents have;
• What guarantees can the seller give that the children will be discharged?

The algorithm for conducting the transaction and its feasibility depend on the answers received. If the owner cannot give intelligible answers, it is best to abandon the property before problems arise with the discharge of minor citizens.

I personally believe that if the child is not the owner, then it is best for him and his mother to leave the apartment that is offered for sale. This will save both parties from unnecessary paperwork and other suspicions and troubles. This will make it easier for all participants. There is another advantage of pre-registration - a larger number of potential buyers, since the presence of children can scare away a significant part of people who avoid risks.

Video: registration of a woman with a child

What documents must be presented by the seller

To conclude an agreement, the owner of the apartment submits a standard package of documentation, which includes:

• title document;
• title document;
• technical plan of the apartment;
• extract from the apartment register;
• permission from the guardianship and trusteeship authorities (when the minor is the owner);
• cadastral certificate confirming that there is no lien or seizure;
• if the seller is legally married in which the apartment was purchased, the spouse’s consent to the transaction;
• the same - if the spouses divorced less than 3 years ago, and there was no division of property;
• a court decision on the division of property in the event of a divorce between the seller and the spouse, if there was a division of property;
• if the seller inherited an apartment - renunciation of the right to the apartment from other co-heirs (according to their number);
• from co-owners of shared ownership - consent to the transaction with waiver of the pre-emptive right to purchase.

In the matter of permission from the guardianship authorities, a mistake often arises, which is made even by specialists endowed with legal powers. Sometimes they unlawfully demand permission when the child is only registered and does not own the living space. This is fundamentally incorrect: in Article 21 of Federal Law No. 48, such an indication is given only regarding minor owners on whose behalf the transaction takes place. Such rules do not apply to other incapacitated citizens.

Starting from 2021, in some cases a document subject to mandatory submission to the guardianship authorities is called a request from a notary. It seems that such a requirement is not entirely correct - the notary certifies the transaction after the guardianship authority issues permission and in the absence of such a purchase and sale will not take place. After reviewing the package of documents by the head of the municipal authority (in this case, the personal presence of both parents is required), permission is issued to dispose of the minor’s property... In practice, it is not always possible to fulfill such conditions. For example, sometimes the order indicates the need to simultaneously purchase another residential property, which means, in essence, the preliminary purchase of a new home before the sale of the existing one. For many families, this condition is impossible. If you believe that the conditions set in the permit are illegal, you can appeal it in court (as well as the refusal to issue a permit).

Marmalade

https://www.detkityumen.ru/forum/thread/686676/

How to draw up a purchase and sale agreement

The sale of an apartment is formalized by a civil contract. It is drawn up by the parties to the transaction. If a minor is not the owner of the object or its share, then information about him is not included in the subject of the agreement, as well as in other provisions.

The purchase and sale agreement is generally drawn up in a standard form

I strongly recommend introducing additional conditions for the discharge of the mother and child into the provisions of the policy, which will provide a significant guarantee to the buyer of real estate . To do this, you can formulate the following points:

• in the provision on the liability of the parties;
• in the provision on the reasons for termination of the contract.

In addition, it is permissible to establish penalties for violation of these conditions. When formulating these points, it is best to set deadlines for deregistration so that if they are violated, the new owner of the property can go to court. If such deadlines are not specified, the delay in the extract can be stated as a violation only one year after the document is drawn up. When concluding PrEP, you need to foresee all the risks and nuances that may be followed by the refusal of parents to sign out themselves and deregister their children.

The DCP is drawn up in triplicate. Then everything will depend on whether you need to contact a notary. If a minor is the owner, this is mandatory; if he is only registered, it is optional. An agreement without notarization is signed by the parties to the transaction, after which it is registered with Rosreestr.

The notary office is contacted at the location of the property with a full package of documents. The agreement is printed, but not signed. The signing procedure must take place in the presence of a notary. He will make sure that the document was signed by the proper persons who are parties to the contract or representatives acting in their interests. After this, he makes an identification note and puts his signature, which he seals.

If there is a minor among the owners of the apartment, the DCP is certified by a notary

Transaction registration procedure

After the agreement is signed, the transaction must be registered with Rosreestr - information about the transfer of ownership of the apartment must be entered into its information bank.

To carry out the procedure, the parties contact the multifunctional center (MFC) with a package of documentation, which includes:

• passports of the parties;
• title and title documents;
• PrEP in 3 copies;
• consent of the spouse (if housing is acquired jointly);
• permission from the guardianship and trusteeship authorities (if the minor is the owner);
• power of attorney, if the documents are submitted by an attorney.

The registrar accepts the package of documentation against signature. When the contract is certified by a notary, registration is free. If you sign the contract yourself, the fee is 2,000 rubles. The registration period depends on the conditions:

• 3 working days - if the parties to the transaction come together and submit a notarial agreement;
• 10 days - if they come together, but the contract was not certified by a notary;
• month - when the buyer and seller each submitted documents at their own time.

After registration, certified copies of contracts are issued for the buyer and seller - one for each. The buyer receives an extract from the Unified State Register of Real Estate (USRN), which confirms the transferred ownership of the property.

How to purchase such real estate: step-by-step instructions

If a child lives in the apartment, then the transaction itself retains the basic legal requirements, but nuances are added to them.

Children under 14 years of age may live and be registered only with their mother. Sometimes it is allowed to place them in the father’s apartment. But without parents, their registration with grandparents and other relatives is not allowed.

Inspection of the premises

During the inspection procedure, if the property satisfies the buyer’s claims, he should ask for a package of documentation for the apartment. Based on the initial examination of the documents, you should pay attention to:

• whether the child is the owner of the apartment or share;
• whether the seller has minors living under his or her wards.

If these facts are discovered, permission from the guardianship authorities will be required to sell the home.

Obtaining permission from the guardianship authorities

For children of the owner who live with their parents, guardianship permission for sale is not required. An exception is cases when a minor has property, including in the form of a share in the right, regardless of its volume. The same applies to cases of registration of guardianship - the child under guardianship must have a guarantee of living in a living space together with a guardian.

The seller is obliged to contact the territorial office with an application. He must indicate that the interests of the minor are not violated by the transaction and provide justification. For example:

1. An apartment of a similar area will be purchased while maintaining the minor’s share in the right to the same extent.
2. The child’s money will be deposited into his personal account.
3. The new housing purchased in return will be more spacious and will allow the ward to have a separate room.

The buyer should note that the promises made by the seller will require fulfillment. If he does not fulfill them, the transaction will have to be declared void, that is, not entered into force.

Deregistration and their registration in a new place

extremely important that all registered citizens are deregistered before the sale of the apartment. This can be done immediately after the conclusion of the preliminary policy agreement. They can check out:

• at the new place of residence where they plan to live after the transaction;
• “to nowhere” if they are adults and do not have children.

It is critically important that mothers and children are discharged before the transaction is concluded. They can register with their parents temporarily while the sale and purchase takes place. After deregistration, the seller must take an extract from the apartment register and present it to the buyer.

Conclusion of a purchase and sale agreement

After preparing the property for the transaction, the parties draw up and sign an agreement. On behalf of minor owners or wards, their legal representatives act:

1. parents (adoptive parents);
2. guardians.

To confirm the right of representation, they present:

• your passports;
• children's birth certificates;
• guardian's certificate;
• a court decision on adoption, if this information is not included in the birth certificate.

Important: if wards live in the apartment or the child is the owner of the apartment or share, the deed of sale is signed on his behalf by legal representatives. In this case, the contract should be concluded with a notary.

In other cases, the transaction occurs as standard. If the parties draw up an agreement independently, then the seller should include language in the provision on the subject of the agreement stating that this transaction does not violate the rights of third parties. This wording relieves the buyer from responsibility for the subsequent fate of the children of the former owner of the apartment.

Registration of a transaction

After signing the agreement, the parties should contact the MFC to register it. Legal representatives approach the MFC on behalf of minors. If such a transaction was concluded and certified by a notary, registration takes place within 3 days. No fee is paid.

The process can take from 10 days to one month. The buyer will need to pay a fee for registration services in the amount of 2 thousand rubles. If during the registration procedure the owner does not check out himself or the children, the buyer has the right to write to Rosreestr an application to suspend the procedure for 1 month. If after this the deregistration does not occur, he should file a claim in court and submit information about the initiation of legal proceedings to Rosreestr.

Note: suspension of registration during legal proceedings is allowed for up to 3 months. By court decision, registration will be carried out or canceled, depending on the decision made.