Concept

If we consider the issue from a legal point of view, we may be surprised to note that the terms of donation or sale do not exist as such. All these legal relations are called alienation of a share or property.

This term refers to a legal transaction or agreement, as a result of which the owner transfers the right to something to another person.

The alienator can be either a legal entity or an individual. This status can also be acquired by a municipal or territorial body.

Capable citizens of our country or legal entities conducting non-profit or commercial activities can acquire a share or property.

Tools for alienation

Alienation of a share can occur in several ways. This:

1. Through a gift agreement. The owner of property or a share has the right, through an agreement, to give his property to any person, and he will not receive material compensation. In legal language, this is called voluntary alienation without receiving material benefits.
2. Through a purchase and sale agreement. The owner of property sells it to someone for a fee. This method also falls under the concept of voluntary alienation.
3. Through free transfer. This item includes confiscation or other actions by the state in which the owner of the property does not receive any benefits.
4. Through exchange. In this case, the property is transferred to another person or society, and in return the former owner receives something. This can be a material good, for example, a car or jewelry, or any other thing.

Simply put, alienation of a share or property is the process of transferring ownership rights to this property to another person on gratuitous or compensated terms.

In fact, the transfer of property from one person to another takes place after official state registration has been carried out and the fact of the transfer is reflected in a special register.

Agreements on the alienation of real estate (donation, purchase and sale, exchange)

Under a real estate purchase and sale agreement (real estate sale agreement), the seller undertakes to transfer ownership of a land plot, building, structure, apartment or other real estate to the buyer, and the buyer undertakes to accept it and pay a certain amount of money for it.

Under a real estate exchange agreement, each party undertakes to transfer any property into the ownership of the other party, and real estate must be the subject of transfer by at least one of the parties.

Under a gift agreement, the donor transfers or undertakes to transfer the ownership of real estate to the donee free of charge.

In notarial practice, transactions with housing are most often carried out: residential buildings, apartments, rooms in apartments. A special piece of real estate is an apartment in an apartment building. A distinctive feature of such an apartment is that its owner, along with the premises occupied as an apartment, also owns a share in the ownership of the common property of the house: common premises of the house, load-bearing structures of the house, mechanical, electrical, sanitary and other equipment for outside or inside an apartment, serving more than one apartment. The owner of an apartment does not have the right to alienate his share in the ownership of the common property of a residential building, as well as perform other actions entailing the transfer of this share separately from the ownership of the apartment.

A contract for the purchase and sale of real estate acquired by spouses during marriage and which is the common joint property of the spouses is certified with the consent of the spouse of the seller of the real estate for the sale (exchange) of this property. In accordance with paragraph 3 of Art. 35 IC such consent must be notarized. If such consent is absent or the form of its expression is violated, the transaction may be declared invalid. The consent of a spouse is not required for the sale of real estate that is separate property of the spouses. To the property of each spouse in accordance with Art. 256 of the Civil Code includes property that belonged to each of the spouses before marriage, as well as property received by one of the spouses during marriage as a gift or by inheritance. Article 36 of the Family Code adds another type of basis for the emergence of separate ownership of spouses for property acquired at least during the marriage: receipt by one of the spouses of property under other gratuitous transactions. The most common type of gratuitous transactions currently is the transfer of residential premises into the ownership of one of them as a result of privatization. There is no need for the spouse's consent to the sale of real estate acquired during the marriage with joint funds, if in relation to this property the spouses entered into a marriage contract, in accordance with which the legal regime of this property has changed and a regime has been established that is different from the regime of common joint property. Moreover, if the marriage contract establishes the separate ownership of one of the spouses for property that is currently the object of alienation, then any consent of the second spouse is not required to complete the transaction. If one of the spouses alienates a share in the right of common ownership of property in respect of which the marriage contract establishes common shared ownership of this property, the spouse’s consent to the alienation of the share is also not required, however, the transaction for the alienation of property is drawn up in compliance with the requirements of Art. 250 of the Civil Code on the pre-emptive right to purchase the co-owner of the alienated share. In the event that the legal regime of the spouses' property is changed by a marriage contract, a copy of this contract or a corresponding extract from it must be left in the notary's files. If, as evidence confirming the ownership of the alienated real estate, the notary is presented with documents from which it is impossible to establish the grounds or time of acquisition of the property (for example, a registration certificate), the notary, as a general rule, must seek the consent of the second spouse for the alienation of such property. If the owner of the property claims that the ownership of the property belongs to him alone, he must confirm his statement with some additional document that indisputably testifies to the specified circumstances. For example, in relation to apartments that were previously located in housing cooperative buildings, for which citizens subsequently acquired ownership rights by force of law, such an additional document may be a certificate from a housing construction cooperative containing information that the entire amount of share savings was contributed by the owner of the apartment before joining marriage. Obtaining notarized consent to complete a transaction is necessary not only from the spouse of the person carrying out the alienation of real estate, but also from the spouse of the buyer (or the person to whom the property is transferred under an exchange agreement). This requirement is also contained in paragraph 3 of Art. 35 of the SK, and it is easily explained: after all, the money with which real estate is purchased is also the common joint property of the spouses, and therefore its disposal must be made by mutual consent of the spouses. This legal requirement does not apply to the donee’s spouse due to the fact that the donee’s property is transferred into ownership free of charge. When certifying an agreement on behalf of a person who does not have a spouse (single, widowed), a corresponding written application from the person alienating the property is submitted to the notary. The contents of the application are communicated to the purchaser of the property, who, in confirmation that he is aware of this circumstance, signs the said application.

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In accordance with Art. 250 of the Civil Code, when one of the co-owners sells a share in the right of common ownership to an outsider, the remaining participants in shared ownership have the preemptive right to purchase the sold share at the price for which it is sold and on other equal conditions, except in cases of sale at public auction. The seller of a share is obliged to notify in writing the other participants in shared ownership of his intention to sell his share to an outsider, indicating the price and other conditions under which he sells it. If the remaining participants in shared ownership refuse to purchase or do not acquire the sold share in the ownership of real estate within a month, the seller has the right to sell his share to any person. When executing a transaction for the sale of a share in the right of common ownership of real estate, the notary must ensure that this requirement is met. Evidence of notification of participants in common shared ownership of the upcoming sale of a share in common ownership of real estate can serve as a certificate of transfer of the seller’s application in accordance with Art. 86 Fundamentals of the legislation of the Russian Federation on notaries or statements of the remaining participants in the common property about refusal to exercise the pre-emptive right to purchase the share being sold. A similar rule in accordance with paragraph 5 of Art. 250 of the Civil Code also applies when concluding an agreement for the exchange of a share in the right of common ownership of any property or property right. As a rule, co-owners of the person alienating their share voluntarily submit to the notary a statement of waiver of the right of preemptive acquisition of this share. Cases arise when obtaining such consent becomes difficult: the co-owner of the seller of the alienated share in the right of common ownership of the property avoids appearing before the notary to sign the relevant document. In this case, it is possible to formalize the transfer of a statement to him, which the seller officially uses. These rules on the pre-emptive right to acquire a share in common property do not apply to agreements on the donation of a share in common shared ownership of an apartment.

Transactions related to the alienation or acquisition of real estate of minors under fourteen years of age can be made with the consent of their legal representatives; real estate transactions on behalf of minors are executed by their legal representatives. According to the law, it is impossible to sell an apartment belonging to a minor citizen, for whom his mother acts, to the mother’s parents or other close relatives. Donation of real estate on behalf of minor children under fourteen years of age and citizens declared incompetent, in accordance with Art. 575 of the Civil Code is prohibited.

The contract for the sale of real estate must stipulate the price of this property. The price in a real estate sale agreement is one of its essential terms. If the contract does not contain a condition agreed in writing on the price of the real estate, the contract for its sale is considered not concluded. The procedure for paying the purchase price is determined by agreement of the parties. At the request of the parties to the transaction, the amount due for payment can be transferred to the seller before signing the contract or after its signing, as well as before the transfer of real estate or after its transfer. In the case where payment for the sold real estate is made by the parties after the transfer of the real estate to the buyer (sale on credit), the buyer must make payment within the period stipulated by the contract. Unless otherwise provided by the purchase and sale agreement, from the moment of transfer of real estate to the buyer and until payment, property sold on credit (in installments) is recognized as being pledged by the seller to ensure the buyer fulfills his obligation to pay for real estate (clause 5 of Art. 488 and paragraph 3 of Article 489 of the Civil Code), i.e. a lien arises by force of law. When drawing up an exchange agreement, the object of which is real estate, the amount of additional monetary payment made by either party for the property being exchanged may also be stipulated. Unless otherwise follows from the exchange agreement, the property to be exchanged is assumed to be of equal value. If, in accordance with the exchange agreement, the exchanged types of real estate are recognized as unequal, the party obligated to transfer property, the price of which is lower than the property provided in exchange, must pay the difference in prices before or after fulfilling its obligation to transfer the goods. The settlement procedure is similar to the settlement procedure for the sale of real estate.

In accordance with Art. 56 Fundamentals of the legislation of the Russian Federation on notaries, certification of contracts for the alienation of a residential building, apartment, dacha, garden house, garage, as well as a land plot is carried out at the location of the specified property. A contract for the exchange of real estate for movable property must be certified at the location of the real estate. An agreement to exchange real estate for other real estate can be certified at the location of any of the real estate objects subject to exchange independently.

The execution of various contracts for the alienation of real estate has certain features. In particular, the execution of a real estate purchase and sale agreement is regulated by Art. 556 Civil Code. The transfer of the sold property by the seller and its acceptance by the buyer must be formalized by a transfer deed or other document signed by both parties. Until the actual transfer of the sold real estate to the buyer and the signing of the transfer deed by the parties, the contract for the sale of real estate cannot be considered fulfilled. Moreover, the evasion of one of the parties from transferring property or signing a transfer deed is considered as a refusal to execute the purchase and sale agreement. The transfer deed must be drawn up in writing. The transfer deed can be drawn up by the parties directly when they sign the contract for the purchase and sale of real estate, as well as at any time after its signing, including after registration of the notarized agreement in a justice institution.

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The requirements for the need to draw up a transfer deed or other transfer document also apply to an exchange agreement, the subject of which is real estate, since, according to Art. 567 of the Civil Code, the rules on purchase and sale are applied to the exchange agreement accordingly. In this case, each of the parties is recognized as the seller of real estate, which it undertakes to transfer, and the buyer of other real estate, which it undertakes to accept in exchange. In accordance with Art. 585 of the Civil Code, in the case where the annuity agreement provides for the transfer of property against the payment of rent for a fee, the rules on purchase and sale apply to the relations of the parties regarding the transfer and payment of property. Therefore, in cases where real estate is transferred into the ownership of the rent payer for a fee, the execution of the contract must also be accompanied by the drawing up of a transfer deed or other document evidencing the transfer. For property donation agreements, the legislation provides for a different, more simplified procedure for their execution. The transfer of a gift (no exception is made for cases when real estate is transferred as a gift) is carried out through its delivery, symbolic transfer (handing over keys), etc.

Types of alienation

Transactions on the alienation of shares can be of different types. The law provides for both voluntary and forced alienation. Both methods have the same legal nature and differ only in the method of transfer of rights.

Voluntary alienation is the action of both an individual and a legal entity, and government bodies, that meets the internal desire of the owner to transfer ownership rights to property from one person to another. This can happen either free of charge or for a benefit. If a person wants to part with property and does not want to receive anything for it, then a deed of gift is drawn up.

Forced alienation refers to the actions of authorized bodies that carry out requisition on legal grounds. The reason may be a court decision or a decision of another competent authority. Everything related to requisition is reflected in the Constitution of our country. The law also establishes cases when requisition is carried out legally.

What taxes are paid when buying and selling a share in an apartment?

When selling a share in an apartment to another owner, the standard personal income tax is paid, set at 13% of the transaction price. The owner who has owned this share for more than three years and whose price does not exceed the cost of purchasing part of the apartment is exempt from tax. Also, a transaction for the alienation of a share of an apartment worth less than 1,000,000 rubles is not subject to tax.

Compliance with the above instructions for alienating a share of an apartment to another owner will help avoid possible problems associated with concluding such a transaction.

Deal Features

Alienation of an interest in the right presents some problems. And the point is not even in the laws that regulate this procedure, but in a certain complexity of registration.

Shared ownership is a situation where one property has several owners. Each owner owns his own part. These points are regulated by the Civil Code of our country and federal laws.

According to the law, the remaining property owners have the right to acquire shares first.

As for the alienation of a share in an LLC, the same principle is observed. That is, other founders of the company have a preemptive right to acquire a share. And only if they refuse, the owner can transfer the share to an outsider.

It turns out that in both cases the owner must first offer his share to the other owners, and only after that he has the right to transfer his property to another person if the other owners refuse.

No matter who the deal is concluded with, it must be notarized. To ensure that the notary does not doubt the legality of the transaction, care must be taken to comply with the following points:

1. To alienate a share in an LLC or real estate, you need to bring to the notary written statements from the owners of other shares that they are not against the sale in favor of a third party. Each application must be accompanied by a photocopy of your passport. This is necessary in order to conduct a comparative analysis of signatures.
2. In order not to suffer with applications and other nuances, you can invite all owners to the notary. The latter will certify the refusal and begin to formalize the deal.

Only after all formalities have been completed will the procedure for alienation of a share in the company or real estate begin. If the refusal procedure is not followed, then the other owner will be able to challenge the transfer of property in court, and, most likely, the court will side with the plaintiff. The court will decide to consider the deal invalid, and the procedure will have to be repeated so that everything returns to its original place. That is, the former owner will receive the property, and the buyer will get his money back.

There is another important point - in the event of a long sale, the share may rise or fall in price. In the first case, it is necessary to notify the remaining owners, but in the second, this is not at all necessary. And even if the price has increased, repeated consent from the other co-owners is not required.

Alienation of a share in an apartment under a gift agreement

A deed of gift often disguises a purchase and sale transaction due to the legislative advantages provided for the transfer of a share free of charge:

• compliance with the right of first refusal is not required;
• exempts the owner from paying personal income tax regardless of the period of ownership when selling to relatives.

If the gift agreement has signs of sham, i.e. covers up the sale in order to minimize the tax burden and ignore the rights of priority buyers, then the transaction is declared void in court. The consequences are equivalent to the real actual transaction that they tried to cover up.

Sample share donation agreement

: Sample agreement for the donation of a share in an apartment (36.5 KiB, 50 hits)

Alienation of a share in an apartment under a gift agreement on a microscopic scale is considered difficult to prove in the courts. The purpose of the transfer is to include the desired buyer among the co-owners with the further sale of the entire share belonging to the owner. Splitting allows a legal way to bypass pre-emption requirements.

Consent to the procedure

In addition to the fact that the owner may be faced with the nuances of getting rid of a share, it is possible that it is quite difficult to obtain consent to alienate a share in a company or real estate. For example, we may be talking about the sale of property that belongs to minors, or they are in shares.

It would be useful to recall that children’s rights are clearly regulated by law, and their observance is monitored by many bodies. The same guardianship council monitors transactions involving the alienation of property owned by minors, partially or completely. It is this body that allows or prohibits the procedure.

To avoid problems with various organs, you need to observe the following nuances:

1. Before selling real estate, guardians or parents are required to find equivalent housing that is not inferior to the one being sold. It can only get better.
2. If the documents do not reflect that you bought something in return, then the authority will not allow you to sell the property. If the deal does go through, the guardianship council will challenge its legality in court.
3. Children who have reached the age of fourteen must appear in person at the authority and confirm their consent. In this case, consent must be recorded in writing. If for some reason the child does not want to write a statement, the guardianship council will refuse to formalize the transaction.
4. When looking for other real estate, parents or guardians should take into account not only the degree of infrastructure development, but also the distance from the educational institutions where the child is currently studying. Again, if the conditions are unsuitable for a minor, the authority will refuse the transaction.

Alienation of a share in an apartment of a minor

If a minor is involved in the transaction, then it requires official written permission from the guardianship and trusteeship authorities. The Board of Trustees checks:

• availability of parental consent;
• provision of alternative housing that is superior in size to the alienated part and is not inferior in social infrastructure;
• the pursued goal, excluding enrichment by infringing on the interests of the child.

Alienation of a share in an apartment is possible only through sale; concluding a gift agreement on behalf of a minor is prohibited, since a gift, by definition, cannot improve the financial situation of the donor.

Required documents

In order to alienate a share of property, you need to know what documents are required to be submitted to the notary's office.

The owner of the property must have with him a paper that confirms his ownership. Such papers include a privatization certificate, a gift agreement, a purchase and sale agreement, an inheritance act and other documents.

When the property is owned by several owners, the consent of the latter will be required. This is a very important point; without compliance with it, the contract for the alienation of shares simply will not be drawn up.

Next, you need documents from the housing office, passport office or migration service. They must indicate all persons registered in the house or apartment. This does not apply to commercial real estate.

If at the time of alienation not all people are deregistered from the property being sold, the buyer will encounter difficulties. They will consist in the fact that people will have to be discharged. Most likely, this will need to be done through the courts.

An important document is a certificate of absence of debts for utilities. The paper doesn’t seem to affect anything, but if you remember that real estate can be seized or taken to court, then everything falls into place.

The last document will be an extract from the register. She must confirm that at the time of the transaction the housing is not for rent, and there is no ban on alienation or seizure.

When the alienation of a share is notarized, the authorized employee is obliged to check all the points himself.

After the transaction is completed, the new owner is required to register it in a specialized register. As soon as registration is completed, ownership will pass to the new owner.

Agreement for the exchange of a residential building for an apartment

Since the subject of this agreement is independent real estate objects - a residential building and an apartment, when concluding an agreement it is necessary to take into account that when the owner of the property is a minor who has not reached 14 years of age, or an incapacitated citizen, an agreement is concluded on his behalf by guardians, parents, adoptive parents.

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When the parties to the agreement are minor citizens aged 14 to 18 years or limited in legal capacity based on a court decision, then the exchange agreement, in accordance with paragraph 1 of Article 26, paragraph 1 of Article 30 of the Civil Code of the Russian Federation, is concluded independently by them, however, written consent is required trustees, parents, adoptive parents for the execution of the transaction.

Alienation in LLC

The procedure for completing a transaction is certainly similar to that adopted for real estate. But nevertheless, this issue has its own nuances that cannot be ignored.

As stated above, the owner of the share must first offer it to the remaining founders and only then sell it if they refuse. If this is not done, then the alienation of the share by a company participant may be challenged by other founders.

By law, other owners can only receive that share that does not exceed what they already have.

Sometimes it happens that the rules of the organization from the very beginning prohibit the sale of shares to strangers. In this case, if other founders do not want to acquire it, the company itself does so. This rule is aimed at protecting the founder who wants to leave the company, but cannot alienate his share in the authorized capital in any other way.

Alienation of a share in an apartment without a notary

Since July 31, 2019, a simplified procedure has been established in Russia for processing transactions with real estate properties that have several owners. Any agreement providing for the transfer of ownership rights is exempt from mandatory certification by a notary representative, provided that the transaction is carried out simultaneously by all co-owners. From 2021 to July 2019 inclusive, the following rule was in effect:

• if the real estate belongs to one owner, then contracts for the transfer of ownership rights are drawn up in simple written form;
• If several co-owners have rights to the alienated property, then the alienation of a share in the apartment without a notary is prohibited.

According to the adopted innovations, contracts for the transfer of parts of an entire object can be concluded without notarization if signed by all co-owners without a single exception. If someone from the list of co-owners, regardless of the size of the part owned, refuses to participate in the transaction, then the remaining participants will have to use the services of a notary.

The innovation provided the right to independently decide the issue of notarization. Indeed, in most cases, the co-owners of real estate are biological relatives, who do not need to confirm the legality of the transaction between themselves when alienating residential premises, a plot of land, a country house or other separate individual object. Living in different regions of the country complicates the procedure, and the certificate requires additional time and money.

What is contained in the charter

This internal document may specify issues related to alienation. These include:

1. The price below which the owner has no right to alienate the share. The procedure for changing the price is also specified in the charter.
2. Other owners have the pre-emptive right to purchase upon alienation of a share of the authorized capital, but only a certain part of it. The remainder can be sold to a third party.
3. The priority right of purchase by other shareholders is indicated.
4. The right to acquire a share without observing proportions to the existing share.

Drawing up an offer

An offer is an offer to purchase a share of the authorized capital of an LLC during alienation. This document, among other things, contains the main points of the purchase and sale agreement. For example, this could be the price, description of the subject of the transaction, and other conditions.

There is no single form for drawing up an offer, but it is known for certain that the paper must indicate:

1. Seller information. This includes passport data, first name, last name, patronymic, INN or OGRN (when the seller is a legal entity).
2. Information about the enterprise, the share of the alienated property, its size and nominal value.
3. Information about the proposed buyer. It is filled out in the same way as the column about the seller.
4. Conditions of a possible transaction and its subject.
5. The procedure in which the value of a share is calculated.
6. The period during which the transaction must be accepted. As a rule, the deadline is no more than one month.
7. Seller's signature and date.

How to submit an offer

The document can be sent to the company itself. There are several ways to do this:

1. Personal delivery to the authorized person of the enterprise. The latter is required to sign the receipt document.
2. Send through a notary.
3. Send from the post office by registered mail. In this case, you will have to make an inventory of the investment and attach a receipt.

The law does not require sending a copy of the offer to each founder, but it is better to do so. After all, they have a month to accept the offer.

If the seller wants to formalize a transaction with a third party, and other share owners do not object, then they can send the seller a statement of consent to the procedure.

If the offer is not accepted within a month, then the other founders of the enterprise no longer have a priority right to receive a share.

What documents are needed

The law defines the documents that must be provided to notarize a transaction. Among them:

1. Agreement for the alienation of a share of the authorized capital in the amount of three pieces.
2. Documents confirming the seller’s right to dispose of the property. This could be a memorandum of association, a certificate of inheritance, or an agreement to purchase a share.
3. Extract from the unified state register of registration of legal entities.
4. Papers that confirm payment of the share.
5. Charter of the company.
6. Memorandum of association.
7. Documents that confirm the consent of the remaining founders with the sale of the share.

At his discretion, the notary has the right to request additional papers. This could be, for example, written consent to the sale from the seller’s spouse.