A new legal risk has appeared when purchasing apartments

Home / Real estate / Purchasing real estate / Buying an apartment

Back

Published: 12/05/2017

Reading time: 5 min

814

Many legal entities purchase real estate as an investment. Registration of the transfer of ownership of an apartment will be no different from cases when it is acquired by an individual. However, there are a number of features that need to be taken into account, including in tax matters.

Restrictions when buying an apartment
Taxes
Documentation
Nuances of registration of shared ownership

Can an LLC buy an apartment?

Legal entities with forms of ownership - LLC, JSC, CJSC can buy residential real estate. There are no prohibitions on such operations. There are 2 transaction options:

The apartment is purchased from an individual. faces;
The apartment is purchased from a legal entity. faces.

Living space can be purchased for the following purposes:

for use in commercial activities - property is purchased for the needs of the company and acts as a fixed asset for which appropriate accounting is kept;
for use in investment activities - for example, for subsequent resale and profit; in this case, the premises will not be considered a fixed asset.

Purchase Features

Expert opinion

Dmitry Nosikov

Lawyer. Specialization: family and housing law.

If the cost of an apartment exceeds 25% of the size of the company’s assets, then such a transaction is considered large, and permission from the co-owners and shareholders of the company will be required to complete it. Consent is not required if the sole founder of the LLC is its manager. The permission is issued in writing. The form of the document depends on the type of ownership of the organization. This could be the minutes of a meeting of founders, a meeting of shareholders, or a decision of the board of directors.

Organizations that buy real estate from citizens, as a rule, carefully check all title documents, the history of resales and the presence of persons registered in the living space, including minors.

Often companies and organizations buy apartments from individuals. persons to change their status and open an office. In such cases, representatives of companies carefully analyze whether the premises have been redeveloped and how legal it is.

The purchasing company pays a state fee of 22 thousand rubles for registering ownership rights. The seller, if the property has been in his possession for less than 3-5 years, is obliged to pay income tax - 13% of the cost (Article 333.33 of the Tax Code of the Russian Federation).

Individuals and legal entities have different taxation procedures. The amount of taxes for enterprises is affected by the status of real estate: residential or non-residential.

Living space purchased by a company whose founders are two or more people will be in shared ownership. The amount of equity participation is established in accordance with the amount of investment in the authorized capital of the enterprise. There are no restrictions on legal capacity in such situations. Other options for the distribution of shares and the right to further dispose of property are adopted by separate decisions of the company’s shareholders.

If a decision is made to purchase an apartment on behalf of a legal entity. persons, it is desirable that the owner be the sole founder and have the right to carry out all necessary operations with the organization’s property. The optimal legal form for such cases is LLC.

Purchase stages

Real estate transactions are carried out according to the following algorithm:

Formation of all terms of the future agreement.
Drawing up and signing a preliminary agreement (if necessary).
Drawing up and signing the main purchase and sale agreement (BSA).
Completing the state registration procedure for the transfer of ownership.
Settlement of the transaction.
Signing the transfer and acceptance certificate.

Documentation

To purchase real estate, a legal entity will need:

A copy of the charter.
Extract from the Unified State Register of Legal Entities.
A document confirming the consent of the founders and shareholders to carry out a transaction or a paper confirming that the transaction is not major for the company (signed by the director and chief accountant).
Power of attorney to represent interests on behalf of the organization, if the manager is not involved in the transaction.
A document confirming the identity of the company's authorized representative or its director.

The seller must provide a standard package of documents to conclude an agreement:

Passport or constituent papers of the enterprise.
An extract from the register confirming the absence of encumbrances.
An extract from the house register indicating the absence of registered persons in the living space.
Papers confirming ownership of the living space.
Title documents on the basis of which the seller received ownership.
Technical plan and a certificate from the BTI stating that there are no illegal redevelopments.
An extract from the financial and personal account confirming the absence of debts on utility bills.
Consent of the spouses to the transaction if the property is jointly acquired.
Consent of the guardianship authorities, if some of the owners are minors.
Power of attorney to represent interests.

The key document when registering real estate transactions is the DCP. It is prepared taking into account the requirements of Chapter 30 of the Civil Code of the Russian Federation. The contract must clearly identify the subject of the transaction - the real estate object, and contain all significant terms of the agreement indicating the cost. In addition, the DCP reflects the list of persons registered in the premises, the rights and obligations of the parties, the presence of encumbrances and debts for utilities, conditions for terminating the transaction, etc.

Documents are submitted to the MFC or to the regional office of Rosreestr for registration. Based on the results of the legal procedure. the person receives an extract from the Unified State Register of Real Estate, which confirms the legal status of the owner of the living space

Fraud schemes and ways to avoid them

The gray schemes used by scammers in the real estate sales market are implemented through shell companies and shell directors. As a result, cases may be identified:

Receipt of money under a preliminary purchase and sale agreement in the full amount of the cost of housing, with the immediate disappearance of the intruders.
Receiving money under the PDKP issued for one property and several buyers, with the disappearance of the scammers before the conclusion of the main contract.
Concluding an agreement using forged documents or for housing that does not belong to criminals, with disappearance on the way to the MFC.
Substitution of an apartment when drawing up a contract by entering a different address into the DCP.

After the fraud, such companies disappear, and if the fraudsters disappear, it is impossible to recover from them what they received under the transaction. The transaction is considered void and does not come into force, and it is almost impossible to return the lost money. Therefore, you can avoid falling into the trap of scammers only by first checking the legal capacity of the seller and the object; for this it is advisable to use the following recommendations:

find information about the company in the Yandex search engine;
on the Rosreestr website find information about the owner of the object;
check the prepared constituent documentation;
check the documentation package for the apartment;
the title document must be an original and not a copy;
check all essential provisions of the contract before signing;
be vigilant at every stage of the transaction.

IMPORTANT : The authenticity of the representative’s general power of attorney can be verified by the notary who issued the document.

In addition, you need to check the availability of an extract from the Unified State Register and identify all the information included in it. And also - never agree to a problematic transaction with a disproportionate reduction in the value of the property.

Don't have savings to buy your own home? Don’t be upset, there are ways that will help you become the owner of real estate without initial capital or with a minimum amount of money, buy an apartment cheaper than its real price, without a down payment and even with installment payments. On our Internet portal you will also find articles about whether you can save on the services of a notary and realtor if you do everything yourself.

pros

Purchase and subsequent registration of an apartment on a legal basis. face provides the following benefits:

Registration of real estate for a company is beneficial if it follows the simplified taxation system (STS).
The risk of losing an apartment as a result of family disputes, division of property, lawsuits over debt obligations, etc. is reduced.
Minimum risks in the process of mutual settlements - the transfer of funds is carried out according to established rules and is documented with the appropriate accounting documents.
The founder is liable for the property for claims of creditors only within the limits of his share of the authorized capital.
Owning a commercial property is a good opportunity to replenish the company’s working capital by an impressive amount.
When purchasing a legal entity. a person has a living space loan with an interest rate lower than for consumer lending. The agreement is concluded for a long term – up to 15 years. A convenient payment schedule is being developed. Legal individuals can increase the expenditure side of working capital by including all payments related to processing and servicing a loan, which will reduce taxes.
The ability to arrange an installment plan if a company buys premises from a developer, provided that the first payment is more than 50% of the total cost. The validity period of such agreements is 3 years. In addition, the buyer saves on registration of collateral, property valuation and insurance costs.

Minuses

In addition to the positive aspects, the acquisition of legal living space. face entails certain disadvantages:

There is a high probability of losing real estate if the company is closed. The apartment can be put up for auction if the company is declared bankrupt and its property is sold. As a result of auctions, property is usually sold for less than its actual market value.
To register a transaction, you need to prepare a more voluminous package of documents than for standard real estate transactions between private individuals.
A higher tax rate on a purchased apartment that is planned to be used for investment purposes.
When purchasing premises in installments from a developer, ownership rights remain with the seller until the debt is fully repaid.

To avoid negative phenomena when purchasing real estate and reduce any risks associated with the alienation of apartments, it is advisable to use the services of qualified lawyers.

Aftermarket Features

In this case, the risks are significantly reduced compared to the risks with the above option. The main rule that must be observed when purchasing on the secondary market is an adequate assessment of real estate, for which you can invite a real estate agent and a detailed check of documents and ownership rights. Having verified the authenticity of the documents and agreed on the price, you can safely proceed to the usual and appropriate procedure for collecting the necessary documents and legally registering the purchase of a home.

Taxes

Expert opinion

Semyon Frolov

Lawyer. 7 years of experience. Specialization: family, inheritance, housing law.

The purchase of an apartment is not grounds for payment of VAT by the legal entity. persons, since such an operation does not provide for tax profit (Article 149 of the Tax Code of the Russian Federation). At the same time, the taxpayer can independently waive the right to be exempt from VAT (clause 5 of Article 149 of the Tax Code of the Russian Federation). To do this, at the territorial branch of the Federal Tax Service, an authorized representative of the company writes a corresponding application, but no later than the 1st day of the period from which it became necessary to refuse the exemption of VAT payments. This means that the acquisition of living space by an enterprise will be taxed only if members of the company wish to pay VAT.

If property is purchased for resale, the company must pay income tax. Under the general taxation system (OSNO), income tax and VAT are charged on revenue. The amount is based on the difference between the purchase and sale prices of the property. Under the simplified tax system, the taxable base is considered to be revenue (taxed at a rate of 6%) or the difference between income and expenses (at a rate of 15% or in the amount established in the region of the transaction).

Living space is taxed if it is not on the company’s balance sheet as property classified as fixed assets (Article 378.2 of the Tax Code of the Russian Federation). This is most often encountered by legal entities. persons engaged in transactions with residential real estate. Property is treated like a product, not a fixed asset, and is subject to taxation, which applies to the sale of products.

An additional expense item is the payment of enterprise property tax. This is a regional fee that is charged to all legal entities. persons registered in the country (Article 374 of the Tax Code of the Russian Federation). The amount of tax collection is no more than 2% of the cadastral value of the premises on the balance sheet of the enterprise.

Property tax applies to the purchase of real estate by enterprises using the general tax regime. The final rate is set at the municipal level.

It is advisable to convert the purchased residential space into commercial space, especially if the company owns other similar properties. Because It is possible to take advantage of a benefit or exemption from real estate tax only for one object of a certain type. In addition, an apartment removed from the housing stock can be rented out at a minimum price. This way, the amount of tax payments will decrease several times.

The transfer of property from residential to non-residential is carried out within the framework of the current legislation (clause 3 of Article 288 of the Civil Code of the Russian Federation). Living space is considered the main asset if it was purchased for the needs of the enterprise.

The purchase of an apartment by a legal entity is not very different from a similar transaction that is carried out between individuals. persons. But, as with any property transaction, it has its own nuances, advantages and disadvantages. Therefore, it is advisable to carry out such transactions with legal support. You can also ask our lawyers your questions. What are the features of buying and selling an apartment in your particular case? How to properly register property so as not to violate tax laws and avoid paying extra taxes? Is it worth removing the apartment from the housing stock? You will receive complete answers to these and other questions.

for free.
Attention!

Due to frequent changes in legislation, information sometimes becomes outdated faster than we can update it on the website.
All cases are very individual and depend on many factors. Basic information does not guarantee a solution to your specific problems.

That's why FREE expert consultants work for you around the clock!

via the form (below), or via online chat
Call the hotline:
St. Petersburg and region

- FREE for a lawyer!

By submitting data you agree to the Consent to PD Processing, PD Processing Policy and User Agreement.

Anonymously

Information about you will not be disclosed

Fast

Fill out the form and a lawyer will contact you within 5 minutes

Tell your friends

Rate ( 1 ratings, average: 5.00 out of 5)

Author of the article

Maxim Privalov

Lawyer. 2 years of experience. I specialize in civil disputes in the field of housing and family law.

Author's rating

Articles written

Possible risks

Of course, as with any expensive transaction, the buyer’s risks are present in this situation, and, of course, they are higher than under any other conditions.

IMPORTANT !!! The percentage of risk increases due to the likelihood of a transaction being carried out using forged documents, as well as due to the likelihood of the transaction being canceled by the organization itself, through going to court, possible overvaluation, and the like.

However, the risks can be easily reduced to a minimum and the pitfalls of such an agreement can be completely eliminated by increasing the responsibility shown to the transaction. It is worth paying special attention to the verification of documents, requiring for this as much time as is necessary for their actual study, without overestimating, but also not underestimating its volume. It would not be superfluous to involve a real estate agent or realtor in the transaction, who have considerable experience in this area and will take on most of the analytical work. Thanks to the help of a specialist, an individual will be able not only to reduce possible risks, but also to speed up the process of studying the provided documentation. The specialist will also be able to advise and explain those points that seem incomprehensible to the buyer.