Instructions: how to buy an inherited apartment

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Buying an apartment is a responsible, long-awaited event for many, and it should not be carried out spontaneously or thoughtlessly. This is especially true for the acquisition of inherited living space, the history of which can be rich not only with interesting facts, but also with unresolved inheritance disputes, debts and deferred claims of belated heirs.

But is it worth refusing to buy a home you like just because it was received by the owner by inheritance? There is no single correct answer to this question. The decision depends on the circumstances surrounding each specific situation. But in any case, it should be based on a careful study of the documentation and taking into account the potential risks typical for such transactions.

Briefly about inheritance law

Awareness of the order of inheritance will help the future buyer to correctly assess the risks:

• After the death of the testator, his property passes to the heirs on one of two grounds - by law or by will.
• By law, only relatives or family members of the deceased owner, who are called upon to inherit in turn, can take possession of an apartment.
• In total, the law provides for eight stages and, if the first for some reason did not accept the right to property, then this opportunity passes to the second and so on.
• If the testator is not satisfied with the established distribution of property, he can leave instructions regarding the future owners of the apartment.
• According to a will, living space can go to any person or organization, regardless of their relationship with the deceased.
• The previous owner of the apartment has the right to order the appointment of a testamentary refusal. As a result of its completion, the specified person gets the opportunity to live in the apartment for a certain period of time or for life, and this right is retained by the legatee even in the event of the sale of the living space.
• A will cannot revoke the right to an obligatory share that disabled close relatives and dependents of the deceased have.
• The period established for entering into inheritance is 6 months.
• The legislation provides for the possibility of accepting inherited property after the specified period if there are good reasons for missing it.
• The heir may be declared unworthy even after he has received a certificate of right to inheritance.
• The owner of the apartment has the right to draw up several wills, but only the last one will have legal force, in full or in separate contradictory provisions.

Inheritance law is regulated by Chapter V of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation).

Mandatory share in inheritance

If there is no will, the inheritance is divided according to law, equally between the heirs in the same line. When there is a will, the order of inheritance does not matter - the property is received by those indicated in the document.

There is an exception - the category of “obligatory heirs”, which is regulated by Art. 1148 and Art. 1149 of the Civil Code of the Russian Federation. They receive their share of the inheritance, even if they are not specified in the will:

• Minor children of the deceased.
• Disabled children, parents or spouse.
• Dependents of the deceased who have such status for at least a year before death, and who are heirs of any order by law.
• Dependents who are not legal heirs, but who lived with the deceased and have such status and have been disabled for at least a year.

All these people have the right to inheritance - no less than half of the share if the inheritance were distributed according to the law.

Ask the real estate seller if they have any compulsory heirs on their record. Check his words - ask the same question to your neighbors or the local police officer.

Risks of buying an apartment by inheritance less than 3 years old

Based on the above, we can highlight the main risks that await the purchaser of an inherited apartment:

1. A few years after the purchase, heirs who have not accepted the rights to housing within 6 months may appear and file a claim to restore the period for entering into inheritance.
2. A similar situation threatens to happen to the legal holders of the compulsory share who did not learn about the opening of the inheritance in a timely manner.
3. Unscrupulous sellers may try to hide the existence of orders from the deceased owner regarding the legatee who has the right to reside in the apartment.
4. There is a possibility that the heir to the apartment will be recognized as unworthy after its sale.
5. When registering, the marital share was not allocated from the inheritance.
6. The will may be declared invalid.

The occurrence of at least one of the listed circumstances may entail unpleasant consequences for the new owner of the living space, including challenging his ownership of the purchased apartment.

During the first three years after the opening of the inheritance (death of the previous home owner), the risks accompanying the purchase and sale transaction are the highest. This is explained by the existence of statutory deadlines for accepting an inheritance, testamentary refusal, and also a statute of limitations.

The most “dangerous” is the first year after the seller receives the inheritance. The process of succession and registration of housing may extend over this period even for punctual heirs. The main reasons for this: restoration of lost documents, litigation on the division of property, ignorance of the death of the heir due to departure or illness. But even after 12 months, the risks remain relevant, although as they move away from the critical period, the likelihood of their materialization decreases.

Risks when buying an apartment by inheritance for more than 3 years

Focusing on judicial practice in inheritance cases, experts note a reduction in the described risks in cases of purchasing real estate inherited more than 3 years ago. This is exactly the period of limitation for inheritance cases in accordance with Art. 196 of the Civil Code of the Russian Federation. The beginning of its course is considered to be the moment when the plaintiff learned about the offense or the circumstances preventing entry into the inheritance no longer exist.

The three-year period also includes the ability of the legatee to apply for a material benefit or service provided at the expense of the apartment.

The deadline for filing a claim for the award of inherited housing or challenging the ownership of it is 10 years after the death of the testator or the commission of an unlawful act that is the cause of the claim. And this moment practically equalizes the probability of losing the purchased living space, which was inherited less than 3 years ago or more.

But in any case, purchasing an apartment 1-3 years after its inheritance significantly reduces the likelihood of unpleasant surprises from its potential owners.

Difficulties when buying an inherited apartment

The new edition of Part 3 of the Civil Code of the Russian Federation has significantly expanded the list of persons who are allowed to be called to inherit. It now includes not only immediate relatives, but also children of siblings (nephews), as well as disabled dependents of the testator.

According to the inheritance law of the Civil Code of the Russian Federation, inheritance is divided into two types: by will and by law.

Buying an inherited apartment is a risky business because none of the methods of inheritance guarantee clarity in the inheritance case. Often, apartment sellers hide information about relatives with whom they did not want to share the inheritance.

It happens that the sellers themselves do not know about the existence of these relatives, for example, about children from a first marriage.

Sometimes problems arise in connection with transactions that were carried out with property before it was inherited:

• There are frequent facts of infringement of the rights of relatives due to their drunkenness;
• deprivation of a share of property in the process of privatization.

Attention! Any of the deprived heirs can go to court.

Contrary to popular belief, a will also does not protect the buyer from risk. There may be an heir with a different will, drawn up later. The later version will be valid. Other heirs of the deceased may challenge the will in court.

Notaries do not always have the opportunity to check the full circle of heirs and issue a certificate of the right to inheritance to persons who appear at the notary's office. An heir whose rights have been violated may, through the court, invalidate such a certificate.

The limitation period specified in the legislation (3 years) cannot be taken literally. The countdown of 3 years begins from the moment when the person learned or should have learned about the infringement of his rights. A person can live in another state and for many years not suspect that he is an heir.

In practice, there is no statute of limitations for inheritance. The newly emerged heir must present to the court a valid reason why he was unable to enter into the inheritance in a timely manner.

Risks under a will

Special mention should be made of the troubles that threaten the buyer of an apartment inherited by will.

Some people are confident (mainly due to the assurances of unscrupulous or insufficiently knowledgeable sellers in inheritance matters) that a will provides high guarantees to the purchaser of inherited property. On the one hand, this is true. Some wills narrow the circle of possible successors, distribute the inheritance among designated persons, significantly reducing the time required to register property and eliminating the cause for inheritance disputes.

The act of last will of the previous owner of the property does not always contain clear instructions regarding the heirs and the amount of shares due to them. Sometimes its subject is only the exclusion of certain persons from the circle of legal successors or other orders that are not essential for the buyer. Thus, the presence of a will does not increase the reliability of the transaction, but, as practice shows, on the contrary, it gives additional reason to doubt the purchase of inherited real estate.

Risks of purchasing a bequeathed apartment:

1. Contestability of a will. An act of posthumous expression of will of a citizen may be declared invalid* in court at the initiative of any successor from the current line of inheritance by law.
2. Availability of additional orders of the testator. The most unpleasant thing for a new owner of a living space is a testamentary refusal. It is expressed in granting a certain person the right to reside in an inherited apartment for a certain period of time or for life. Moreover, this right is not canceled upon alienation of property, that is, the new owner may have an unwanted neighbor in the purchased housing.
3. The existence of legal holders of an obligatory share of inheritance. This category of successors cannot be deprived of inherited property even by will - they have the right to claim half of what they could have received by law in any case (unless they are declared unworthy heirs). These may be disabled father, mother, spouse, children and dependents of the testator who, for good reasons, were unable to timely declare their rights to the apartment.

* - a will is invalid if the testator at the time of its preparation:

• was deprived of legal capacity;
• was in a state of short-term loss of the sense of reality of what was happening (due to intoxication with chemicals, severe stress, affect);
• was under psychological and/or physical pressure.

Among the risks that are practically impossible for a potential buyer to analyze is the possibility of recognizing the heir as unworthy. Even a successor who was appointed by the testator himself may be deprived of his rights; according to the law, he does not have any advantages over the successor.

The grounds for declaring an heir unworthy may be as follows:

• incriminating him of illegal actions in relation to the testator, his expression of will, as well as other heirs in order to increase the inherited profit;
• failure to fulfill alimony obligations in relation to the now deceased (in cases established by law).

Fraudulent schemes

An unscrupulous seller can use some tricks to pull off a fraudulent scheme, as a result of which the buyer will be left at a severe disadvantage or even lose money without receiving anything in return.

Example. "Concealment of legatees." According to the will, the beneficiary, along with the apartment, also inherited its resident - a friend of the deceased, who has the right to live in the living space for life. By prior agreement with the latter, the successor put the apartment up for sale, and the legatee postponed the registration of his right until the end of the established period (3 years from the date of death of the testator).

The heir sells the apartment and a year later the new owner receives a legatee indicating the registered right of residence in the apartment. He demands a significant amount of compensation from the acquirers, and after refusal, he legally moves in with them. The inconvenience caused by the tenant forces the owners to pay him for a notarized waiver of the rights to reside in the living space.

Example. "Cancellation of power of attorney." The owner of the home issues a power of attorney to sell it to a friend, who then acts on his behalf. When buyers ask questions about the owner of the apartment, the representative informs about his urgent departure abroad. Trusting buyers sign a purchase and sale agreement and transfer money to the attacker. Immediately after this, the real owner of the living space revokes the power of attorney, and the entire transaction is considered invalid due to the lack of authority of the representative.

Then the attacker hides, and the owner calls himself a victim of deception.

Example. "Conspiracy with the heir." The situation unfolds according to a scheme similar to an agreement with the legatee, who in this case is replaced by the priority heir or the legal holder of the compulsory share.

One of the priority successors registers the living space in his own name and after 3 years finds buyers for it. At this time, the accomplice, under the cover of good reasons, allegedly does not know about the opening of the inheritance, and several years later appears in court to restore inheritance rights in court. And, since the statute of limitations begins to count only from the moment when the testator learned or should have learned about the death of the testator, he achieves success in court.

With a court decision to restore the deadline for accepting the inheritance, the fraudster registers his part of the apartment and makes demands for payment of compensation to the new owner of the inherited living space. According to the attackers, buyers had to pay for the apartment twice. But timely contacting a lawyer saved them from unnecessary expenses. The specialist explained to them the position of the law regarding the rights of a bona fide purchaser, according to which all property claims of the emerging heir must be directed to the seller.

Example. "Black realtor." Not only buyers, but also homeowners risk becoming victims of this scheme. Only the last two consequences are much more deplorable. Criminals, the so-called black realtors, fraudulently, under the influence of physical or moral pressure, force the testator to bequeath an apartment to them, and then kill him. The received inheritance is registered and then sold by them according to all the rules.

The consequences of an illegal transaction for buyers occur if the legal successors of the deceased owner of the apartment have doubts. If they can prove a criminal act against a relative, the sale transaction will be invalidated due to the lack of legal force of the will.

Is it worth buying an apartment received as an inheritance?

The decision to purchase inherited living space should be made taking into account all existing risks and you should think twice if:

1. Less than three years have passed since the death of the previous owner (this clause does not exclude the possibility of challenging the transaction due to circumstances unforeseen for the buyer and seller, but significantly reduces the risks associated with the latter’s dishonesty).
2. There is no personal contact with the property owner. This is an extremely alarming circumstance, especially considering the unreliable legal status of the power of attorney under which the intermediary will carry out the sale.
3. The heir did not have time to deregister the previously living persons, including himself, from the registration of the living space.
4. An elderly seller (over 70 years old) refuses to provide a certificate of his own legal capacity (a common reason for cancellation of transactions is the presence of senile dementia on one of the parties, which completely or partially deprives the patient of legal capacity).
5. The owner of the apartment refuses to provide the potential purchaser with documents that can confirm the transparency of the agreement.

In other cases, the buyer can consider the recommendations below and, in the complete absence of suspicions regarding the documents and the good faith of the seller, decide to draw up a purchase and sale agreement. After all, many of the apartments for sale are inherited and it is not always advisable to refuse the desired option without clear grounds.

How to safely complete a transaction

The rights of the new owner of the living space are protected by the Decree of the Constitutional Court of the Russian Federation dated April 21, 2003. According to its instructions, a person who considers himself the owner of a sold item does not have the right to reclaim it from a bona fide buyer. And paragraph 42 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated May 29, 2012 No. 9 “On judicial practice in inheritance cases” states that if the inheritance is accepted after 6 months, the successor can only count on monetary compensation from the seller of the apartment.

The main task of the buyer in this case is to ensure the status of a bona fide one, that is:

1. Purchase real estate for a fee.
2. Be sure that the property was sold if the seller had the authority to do so.

In accordance with the second point, you can protect yourself from an unsuccessful purchase by following the following instructions:

1. Ask the owner for title deeds for housing, an extract from the Unified State Register of Real Estate, a house register and a passport.
2. Carefully check the documents for authenticity and consistency with each other.
3. Study information about the number of residents registered in a given living space and transactions carried out with its participation.
4. Review the certificate confirming the absence of debt obligations on the purchased property.
5. Find out about the basis on which the seller received ownership of the apartment (if by will, then ask to provide the document).
6. Examine the contents of the will for the presence of instructions regarding testamentary refusal.
7. Make sure that the purchase and sale agreement contains a reliable and current price for housing.*

* - a very important nuance that warns against indicating an undervalued value in the document: in addition to reducing the seller’s expenses, this entails possible financial losses for the buyer if the transaction is terminated.

A transaction through a representative requires careful verification of the power of attorney and the apartment owner’s awareness of it. In addition, you should protect yourself in case the owner decides to revoke the legal force of the power of attorney immediately after payment.

As for the moment of payment, you can adopt several methods of transferring the agreed amount to the seller:

1. Immediately after signing the purchase and sale agreement. It is recommended to do this in front of witnesses, requesting a receipt from the seller about the amount of funds received by him (include the passport details of the parties to the transaction and the signatures of witnesses in the receipt).
2. By placing it in a bank cell. The buyer places the money for the apartment in a specialized bank safe and orders the release of funds to the seller only if there is a certificate of registration of the apartment in the name of the buyer.

And it is important to understand that even if all precautions are taken, it is impossible to achieve a 100% guarantee of safety when purchasing an inherited living space, but you can increase it to the maximum with the help of an experienced lawyer.

How to safely buy an inherited apartment

The purchase and sale agreement must indicate the full cost of the property being purchased. In the event of termination of the contract, it is the cost recorded in documents that will be subject to payment, and the buyer will be recognized by the court as being in good faith.

Attention! Indicating an incomplete cost of the apartment in the title document may turn against the purchaser.

Purchasing with a mortgage can provide additional security. Until the cost of the apartment is paid in full, it is pledged to the bank. If an unfavorable situation arises, the bank will participate in the legal proceedings using all its resources.

Title insurance (risk of loss of title) can significantly help in the event of contract termination. However, you need to foresee that the insurance company will also take into account the risks, so such insurance will not be cheap.

Full certification of the purchase and sale transaction by a notary and settlement through his deposit provide certain guarantees. In this case, the notary independently obtains the necessary certificates from the registers, ensures the legal purity of the transaction, and submits documents for registration to Rosreestr electronically.

The registration period for rights is only one day. For all his actions, the notary bears full property responsibility, guaranteeing compensation for losses to citizens if damage was caused to the parties to the transaction through his fault.

Finally, if it comes to trial, this does not mean that the decision will affect the buyer of the apartment. In paragraphs 41 and 42 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated May 29, 2012 No. 9, by virtue of paragraph 1 of Article 1155 of the Civil Code of the Russian Federation, it is stated that if the deadlines for inheritance were missed, and the property included in the inheritance is no longer the property of the heir, promptly who accepted it, the newly emerged heir can only claim monetary compensation.

Read more: Cassation appeal against the decision of the regional court

Step-by-step instructions for buying an apartment received by inheritance

After completing the steps indicated here (see “How to securely complete a transaction”), the acquirer should adhere to the following action plan:

1. Agree with the seller on the place and time of the transaction.
2. Select a payment method and notify the apartment owner about it.
3. To make an agreement.*
4. Place the money in a safe deposit box (if you choose this payment method) or find witnesses who can confirm cash payment “from hand to hand”.
5. Together with the seller, go to the selected notary at the location of the apartment (the only possible way to certify the transaction for the alienation of an apartment after amendments to Article 42 of Federal Law No. 218-FZ).
6. Pay the state fee (0.5% of the cost of the apartment, but within the range of 300–20,000 rubles, according to clause 5, clause 1, article 333.24 of the Tax Code of the Russian Federation) and notary services of a legal and technical nature (established by the notary chamber of the subject).
7. Sign the contract.
8. Make a settlement with the seller.
9. With a notarized agreement, go to the nearest Rosreestr office or branch of a multifunctional center to register the transfer of ownership.

* - the purchase and sale agreement must contain:

• technical characteristics of the living space;
• data on the location of the apartment;
• transaction price;
• the date of entry into force of the agreement;
• distribution of costs for processing a transaction;
• details of the parties.

When completing a transaction, the seller must provide the following documents:

• passport;
• certificate of inheritance;
• extract from the unified state register of real estate;
• explication;
• floor plan.

The buyer only needs a passport.

It is possible and necessary to get around the rough edges when buying inherited real estate, especially if this apartment is exactly what you have been looking for for so long. But taking into account the magnitude of the risks, doing this yourself, without special knowledge, is extremely unreliable.

To increase the security of the transaction, you can seek professional help from the lawyers of the website ros-nasledstvo.ru, who are ready to answer your question free of charge at any time convenient for you.

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Request documents

Extract from the Unified State Register of Real Estate.

In it you will find out who is the current owner of the apartment and on what basis. If the apartment was inherited, it will be written so. The same certificate should contain a history of the transfer of rights - you will find out how often the apartment was sold or given away. Compare the information from the certificate and the seller’s story about the property. Using the extract, you can find out whether there is an encumbrance on the apartment, for example, a mortgage, arrest or the right to use the apartment.

Certificate of right to inheritance.

Check that the technical description of the apartment completely matches the real property - the same area, the same number of rooms. The data may differ if, after inheriting, the new owners remodeled the housing, for example, adding a loggia to the rooms - in this case, ask for a document approving the redevelopment from the local BTI authorities or housing inspectorate - depending on what rules are adopted in your region.

Certificate from the bank regarding loan repayment.

Needed if the apartment was purchased with a mortgage. Data on the bank's encumbrance should also be in the extract from the Unified State Register of Real Estate, but the database has been formed since 1998, and old entries may not be in it. If the mortgage has not yet been paid, the heir must pay off the debt.

Technical plan or equivalents.

Check the data from this document with the data in the extract from the Unified State Register. The area, floor, and layout must match.