Contract for the exchange of residential buildings with additional payment

Find out on our website about the features of exchanging privatized and municipal apartments, how to exchange old apartments for a new building, and also whether it is possible to exchange a mortgaged apartment.

Concept

By agreement, a person exchanges the housing he owns for another housing or other things (garage, land, car).

If the exchange is unequal, one of the participants pays the difference in value in money .

In the text of the contract, the cost of the apartments is indicated only in rubles, even if one party actually transfers currency to the other.

Such an agreement is concluded only in relation to an apartment owned . When exchanging non-privatized housing, when it comes to exchanging the rights to conclude a rental agreement, the transaction is governed by other legal norms.

The rules governing exchange relations are contained in Chapter 31 of the Civil Code of the Russian Federation. According to Article 567 of the Civil Code of the Russian Federation, the rules of Chapter 30 are applied to this agreement, which do not contradict Chapter 31 and the essence of the exchange action. In this case, it is considered that the parties to the agreement are both the seller and the buyer.

An overview of judicial practice in this area is given in the letter of the Presidium of the Supreme Arbitration Court of the Russian Federation No. 69 dated September 24, 2002.

You can learn about how to exchange a three-room or two-room apartment, how to change a room in a communal apartment or dormitory, as well as in what cases a forced exchange is carried out through the court from our articles.

What is it needed for?

Why is it necessary to conclude an apartment exchange contract with an additional payment?

One party enters into an agreement to improve living conditions with minimal costs and inconvenience.

The second side sees the benefit from it in the opportunity to receive a significant amount of money at a time and reduce utility bills when living in a smaller apartment.

There are pros and cons to the acquisition/sale of housing by concluding such a contract, instead of a purchase and sale transaction.

Find out what documents are required to exchange an apartment, as well as whether it is possible to exchange a room for a house and land, from our articles.

pros

Reducing the risk of fraud on both sides. Under such an agreement, the participants immediately receive what they want with a guarantee; whereas in case of counter purchase and sale, the terms of registration of transactions do not coincide, which is successfully used by swindlers.

There are a number of fraudulent schemes, as a result of which a person is left without an apartment and without money. This happens especially often when citizens, in order to save money, ignore the services of realtors and try to make transactions on their own.

When a person sells an apartment to another person and intends to buy from a third person, this is also associated with risk . Money is subject to inflation, and in recent decades we have encountered cases where it was sudden and rapid.

In the nineties, in 2008, 2014, we had situations where, shortly after the sale, it was impossible to buy housing of the required quality with the proceeds from a previously sold apartment.

On the other hand, apartments during a crisis are difficult to sell for an acceptable amount, since buyers do not have enough cash for this.

When moving, a person is faced with the problem of adequately assessing the purchased housing : he does not know enough about the features of life in another city. If you rely on prices published in newspapers, you may get a different situation on the spot.

Creditors with the help of bailiffs and debt collectors can claim the money received from a purchase and sale transaction: tracking such a transaction is not difficult, while the only home a person cannot legally take away .

Finally, there is a category of citizens for whom it is simply impossible to resist spending cash when it is already in their hands. An exchange agreement with an additional payment allows you to “settle” the listed problems.

Tax benefit . If a party sells housing purchased less than three years ago, he is obliged to include income from the sale in the year-end declaration and pay income tax on the declared amount.

In an exchange transaction, tax is paid only on the additional payment, which, by agreement of the participants, can not be indicated in the document or written down in the text in a symbolic amount, but the real amount can be transferred from hand to hand.

Such an agreement is an ideal solution to housing problems between relatives . With age, the parental family has shrunk to two people; she no longer needs a large apartment, for which she also has to pay ever-increasing utility costs. Children got married, grandchildren appeared, but for now young families live in a modest two-room apartment or studio.

The difficulties of relocation and temporary residence are eliminated. For citizens with a family or valuable property, the sale of apartments threatens the prospect of temporary rental housing while they search for a suitable purchase option. If the search drags on, this will lead to a long-term deterioration in the standard of living. The barter agreement eliminates this problem.

Cons of the deal

The search for a suitable exchange option can take a long time, unlike the purchase and sale option. First of all, this concerns foreign exchange. In this case, the likelihood that someone will want to move to your city is extremely low.
It is difficult for both parties to agree on the amount of the surcharge. After all, the surcharge in most cases is influenced by non-market factors, such as the need for an urgent move. Of course, it is difficult to establish an adequate market value for the exchanged apartment, since advertisements for the sale of real estate indicate, as a rule, not the real value, but the desire of the seller.
Exchange of apartments, unlike purchase and sale, narrows the choice. Thus, you will be forced to move not to the area where you would like to live, but to the one where exchange will be offered. When purchasing real estate, you can receive a tax deduction in the amount of the transaction cost. When exchanging an apartment, a deduction can only be obtained from the cost of the additional payment, and only if it is specified in the document.
When concluding an exchange agreement, both parties have the right to change their minds and cancel the agreement within three years from the date of conclusion of the transaction and reimburse their expenses.

Minuses

The exchange option takes much longer to search for than the purchase and sale option. This is especially true for non-resident exchanges: the probability that a resident of the locality you need needs to move to your city is in some cases close to zero.

to agree on the amount of additional payment for participants.

In some cases, it is influenced by non-market factors, for example, the need for an urgent move.

It is difficult to establish an adequate market value of the exchanged apartments: published advertisements for the sale of similar housing express only the desires of sellers and buyers. The prices of real transactions remain behind the scenes.

Exchange, compared to buying and selling, narrows the choice . The parties have to move not to the optimal area of the city from their point of view, but to the one where the exchange is offered.

If a participant purchases housing for the first time, the purchase allows her to make a tax deduction of the personal income tax base in the amount of the transaction amount. In the option under consideration, she will receive such a deduction only from the amount of the additional payment.

An exchange agreement gives both participants additional rights compared to the sale and purchase. Within three years after its conclusion, any of the parties can change their mind and make claims against the counterparty, seeking not only its cancellation, but also reimbursement of their expenses.

After weighing all the pros and cons, make a decision.

Sample exchange agreement

Many people confuse the concepts of barter and exchange. They seem exactly the same. But there is an important difference: exchange involves the transfer of non-privatized property, and exchange is possible only in transactions with property that is private.

Pros and cons of the deal

Any type of transaction has both advantages and disadvantages.

Barter agreement and its advantages:

All participants receive their housing immediately. You don’t need to urgently look for a new property, just move to a ready-made apartment.
Both citizens can receive a tax deduction, which is required by law.
If at least one person is not satisfied with something in the contract, then they can terminate it and remain with their previous property.

Disadvantages of an exchange agreement:

It is impossible to exchange privatized real estate for non-privatized (municipal) real estate.
There is little choice from the existing apartment options. You will have to put in a lot of time to find the right one for you personally.
It will be necessary to pay income tax in accordance with Articles 38 and 39 of the Tax Code of the Russian Federation, since this type of transaction is a sale.

Change of apartment. What are the main conditions for the deal?

The main condition for drawing up an exchange agreement is that the real estate must be owned by one type (exchange of private property for private or municipal for municipal). You can change housing in any city/region. You do not have to look for housing in the area where you previously lived; this is stated in article number 72 of the Housing Code of the Russian Federation.

Expert opinion

Mikhailov Evgeniy Alexandrovich

Teacher of civil law. Lawyer with 20 years of experience

Another significant condition is that all parties must be the owners of their apartments. If the apartment has several full owners, then each of them must obtain a notarized permission. If one of the owners is a child, then provide written consent from the guardianship and trusteeship authorities.

It is also important that there are no utility debts for the apartment and other other encumbrances. If there are debts, the transaction will not take place, and the injured party has every right to terminate the contract.

The question arises: is it necessary to indicate the value of real estate in the contract? Be sure to indicate this, because thanks to this, personal income tax and the property deduction that you will want to receive later will be correctly calculated. If the contract does not indicate the cost of the apartments, then this type of transaction will be considered equivalent (Article number 568 of the Civil Code of the Russian Federation).

This is important to know: What does a mortgage on an apartment look like?

Documents required to exchange for privatized apartments:

A document proving your identity (passport).
Certificates confirming that you are the owner of the apartment.
Papers on the basis of which you purchased real estate (purchase and sale agreement, gift agreement, etc.).
Extracts from the Unified State Register of Real Estate.
Extracts from the house register, which will display the actual number of registered people, including children.
Notarized consent of other property owners.

Documents for exchange of municipal property:

Documents confirming your identity (passport).
Social rental agreements.
Mandatory permission from the authorities that provided you with housing.
Extracts from the Unified State Register of Real Estate.
Extracts from the house register to see the real number of people registered in the apartment, including children.
Notarized permission from the owners.

Both parties are required to provide the same package of documents. On their basis, registration of property rights will take place. In addition to this list, you need to bring the exchange agreement itself, the acceptance certificate and receipts for payment of the duty in the amount of two pieces. Each participant must pay the fee.

Barter agreement. How to compose?

This agreement is drawn up in any form and in a single copy. Once it is completed, you sign it. If you wish, you can involve a notary in this. Then the transaction is registered at the state level. The fact of its commission is reflected in Rosreestr. The corresponding stamp is placed in the exchange agreement itself.

Form of real estate exchange agreement

Completed sample exchange agreement

Agreement for the exchange of an apartment without additional payment.

Mena. Invalidation of the transaction

Situations often arise when the contract is invalid from the very beginning and does not have any legal force. In this case, there is no need to contact a court to declare it void.

There are cases when a transaction can be considered voidable, but for this it is necessary to go to court. Until the court makes an appropriate decision, all participants must comply with the terms of the agreement.

When is a transaction invalid?

If one party is an incapacitated person.
If the contract was signed by a person who was not sensibly aware of his actions (an elderly person, a person with a disease).
The transaction was concluded with deception of one of the parties, with blackmail or other illegal actions.
The agreement was not concluded in accordance with the laws of the Russian Federation.
The agreement was signed without the consent of the other property owners.
The transaction is considered imaginary or feigned. (A sham transaction is a transaction that is made only for show, without the purpose of creating legal consequences for it. A sham transaction is a transaction that is created to cover up another transaction).

To declare a transaction invalid, absolutely any person interested in its termination (the victim or a representative of any organization) can apply to a judicial institution. After the contract is declared void, the violator will be obliged to pay compensation to all injured parties for all their expenses, including moral damage.

Form requirements

The housing exchange agreement is drawn up in writing. Notarization is carried out at the request of the participants.

How to draw up an exchange agreement with additional payment for an apartment

Minor children;
Those who are in a socially dangerous situation or require state guardianship, former family members of the owner of the property;
Current or former family members who are incompetent or recognized by the court as partially incompetent;
Or assigning real estate to orphans or children left without parental care.

State registration in Rosreestr of an exchange transaction with additional payment for housing is mandatory for its completion. After registering the apartment, the rights to the new property are transferred to the other party to the transaction, which is entered into the Rosreestr. Without registration, exchange is considered illegal.

Rights and obligations of the parties

In this case, each participant is the seller of the apartment and is obliged to transfer it, and the buyer of the apartment is obliged to accept it. Each participant is obliged :

Transfer the apartment(s): free from the rights of other persons; with all equipment, documents; in the quantity specified in the agreement; exactly the one specified in the agreement; acceptable quality; with door, glazed windows and keys; in the agreed configuration.
Report any violation of the terms of the agreement within a reasonable time.
Accept the transferred housing.

Features and nuances

The ownership right passes after both participants fulfill their obligations for the mutual transfer of apartments (things), unless otherwise stated in the agreement or law.

When the party to the contract is married, and the apartments and other items of the agreement are, by law, the common property of the spouses (acquired by one of them during marriage for compensation), the consent of the other spouse, certified by a notary, is required to conclude the contract.

The conclusion of the agreement is carried out in the following sequence: The parties inspect the exchanged apartments and things, making sure of their suitability for use. Participants, with the help of a lawyer, draw up the text of the contract.

Participants register the agreement in Rosreestr.

Participants pay/accept additional payment and move. Each party registers its ownership of the housing purchased under the contract with Rosreestr.

If a party does not take steps to re-register property rights as specified in the registered exchange agreement, the injured participant has the right to demand re-registration through the court .

Apartment exchange agreement with additional payment

1. I, Full Name_1, CHANGE apartment No. 1 (one), which belongs to me by right of ownership, in house No. ____(_____) on _____ street in the city of Kiev, to apartment No. 2 (two), in house No. ____(_____) on _____ street in the city Kiev, and we, Full Name_1, Full Name_2 CHANGE apartment No. 2 (two), in house No. ____(_____) on _____ street in the city of Kiev, due to us by right of ownership, to apartment No. 1 (one), in house No. ____(_____) on _____ street in the city of Kiev, in equal shares to each.

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In case of violation of this clause of the agreement, the other party has the right to compensation for material damage caused to him, and after state registration of this agreement, each of the parties has the right to unhindered access to his own apartment, is not responsible for things left in it by the other party and in if there are obstacles to all the rights of the owner, she has the right to compensation for moral damage caused to her