How to allocate a share to a child in a mortgaged apartment: procedure for allocating a share in an apartment?

A mortgage for a share of an apartment in Sberbank involves taking out a loan to purchase not the entire living space, but a part (for example, a separate room). The presence of several owners of one residential premises does not contradict Russian legislation. In this case, the owners do not necessarily have to be related or married.

At Sberbank, such a housing loan can be taken out exclusively under the “Purchase of Finished Housing” program. In this case, the borrower must provide collateral in the form of other real estate or obtain the consent of other owners for the encumbrance. Due to the low liquidity of substandard housing, the bank thoroughly checks the applicant so that later there will be no difficulties in repaying the loan.

Mortgage loan for the last share

The last share means the part of the apartment that the borrower wants to buy in order to become the full owner. The bank treats such applicants more loyally, and refusals rarely occur.

In this situation, the consent of all shareholders is not required. If the borrower refuses to fulfill his debt obligations, the bank will be able to sell the loaned living space.

Mortgage for a share for two

When registering a mortgage in this way, the bank attracts an additional co-borrower who bears the same debt obligations. Usually the second payer is a close relative.

Expert opinion

Irina Bogdanova

Expert in the field of mortgage lending.

Ownership of the housing being registered is determined by shared participation. If members of the same family participate in the transaction, a joint form of ownership is provided.

Distribution of shares between co-borrowers

The co-borrower spouse automatically becomes a co-owner of a share of the purchased property. If a related or other person is involved in the transaction, a special agreement must be drawn up.

When the relationship is built on trust, in the future it is possible to reclaim the due part of the property through the court. It is enough to provide receipts for mortgage payments.

Buying out shares from relatives

The rules for purchasing a share of real estate from a relative are not regulated by law. But in practice, Sberbank often refuses borrowers such registration. The reason is suspicion of fraud. Participants in the transaction can divide the money received and hide so as not to pay the bank for this share of the apartment.

Buying a room in a communal apartment

The bank is more loyal to mortgage borrowers who want to buy out the last share in a communal apartment. But the lender also allows the option of purchasing a separate room under certain conditions:

• there is other property in the property for collateral;
• the purchased living space complies with all sanitary and technical standards;
• communications are in good working order: sewerage, ventilation, heating system, electricity supply, bathroom;
• room area more than 12 sq. m;
• construction without wooden floors;
• The building was erected no later than 1970.

Only in this case will the bank consider an application for a mortgage in a communal apartment.

Difficulties

In mortgage relationships, especially if they involve minors, there are a lot of difficulties:

1. Often, parents forget about the rights of minor children and do not provide them with a mandatory share. If funds under MS are involved in the purchase, then the Pension Fund and guardianship authorities will, of course, remind you of the need to allocate the child’s share, but when buying an apartment without using MS, this does not always happen.
2. The sale of a real estate property, if the co-owner is a child, is possible only with the consent of the PLO and the approval of the credit institution.
3. Often, the minor’s share in the new mortgaged apartment turns out to be less than in the previous residential premises, and this is unacceptable.
4. A parent's failure to make future mortgage payments could result in the entire family being evicted, even if the child has an ownership interest in the home.

Therefore, everything will depend on the bank’s decision. Of course, there are some ways potential borrowers can use to make a small impact on being more likely to be approved for a mortgage:

1. Find a more loyal lender . But there are some pitfalls here: a bank that is more loyal to borrowers takes a greater risk, therefore, loans from such credit institutions are often given at a higher interest rate than usual.
2. Check your credit history in advance . If the borrower accidentally forgot that he already had difficulties repaying a loan from this or other banks, then he may face a refusal to issue a mortgage loan.
3. Transfer another property to the bank as collateral . In this case, parents will be able to freely allocate their children's share.
4. Allocate the share of minors in another residential area . To do this, you can use the apartments of close relatives, for example, a grandmother will allocate a share in her apartment for her grandson, to whom she was already going to inherit the living space.

In this case, the likelihood of mortgage approval increases significantly. Of course, if the borrower has a permanent official job and has a good credit history.

Example

The Zinoviev couple lived for about ten years in an old two-room apartment, which the wife inherited from her grandmother. But a year after the birth of the child, they decided to improve their living conditions and turned to the bank to apply for a mortgage loan. They offered the bank an old apartment as collateral. The bank agreed with the collateral and approved a loan for Zinoviev to purchase a new residential property. The spouses transferred the children's share in the old apartment to a new one, purchased on credit, and the old one remained as collateral in case of any difficulties with repaying the mortgage.

Subsequently, after repaying the loan, when the lien on the old apartment was removed, the couple sold both residential premises and were able to buy a spacious three-room residential premises with an improved layout.

Benefits for young families

Sberbank currently cannot offer targeted preferential shares for the purchase of a share in an apartment. But potential applicants can take advantage of the “Young Family” program, which operates as part of mortgage lending for the purchase of secondary housing.

Terms of a mortgage loan from Sberbank for a share of an apartment for young borrowers:

• for a family of two people there should be 42 sq. m of total area, of three - 18 sq. m for each;
• the occupied living space does not meet established sanitary and technical standards;
• the borrower's family lives together with a person suffering from a serious illness (the latter is supposed to live separately);
• spouses must not be older than 35 years (each).

If all these requirements are met, the applicant can count on a subsidy from the state in the amount of up to 40% of the cost of the purchased object. The amount of the benefit is determined on an individual basis.

Features of shared mortgage

Expert opinion
Irina Bogdanova

Expert in the field of mortgage lending.

Applications for a mortgage for a share in an apartment (house) are checked more carefully by the bank. You must document your solvency. The form should be filled out carefully, without errors.

The procedure for lending funds to purchase a share of housing is almost identical to the standard one, with the exception of a number of features:

• it is possible to buy part of the property only with the consent of all co-owners that an encumbrance be placed on the apartment;
• another living space owned by the potential borrower is provided as collateral.

Expert opinion

Irina Bogdanova

Expert in the field of mortgage lending.

Since the bank takes a lot of risk in such a transaction, attention is focused on the personality of the borrower and his financial reliability. If your income does not meet the requirements, your mortgage will be denied.

Possible reasons for refusal to apply for a shared mortgage

Theoretically, it is possible to obtain consent from Sberbank to issue mortgage funds to buy out a share in an apartment, but in practice, borrowers often encounter difficulties.

The main reason for refusing a mortgage for the purchase of a share in an apartment is that the person already owns part of the property being purchased , but even after the transaction it will not become his full possession. The bank runs the risk of not getting its money back if the borrower loses its solvency, since it will be difficult to sell the collateral due to low liquidity.

Expert opinion

Irina Bogdanova

Expert in the field of mortgage lending.

In such a situation, Sberbank requires the provision of collateral in the form of a full-fledged apartment, which the applicant already owns.

Alternative options for purchasing a share of housing

To begin with, you can consider the offers of other banks, for example:

If Sberbank refused to issue a mortgage to buy out a share in the apartment, you can take out a consumer loan and purchase part of the living space for cash. There is no need to confirm the purpose of receiving the loan. The downside is the high interest rate (from 9.9%) and the short installment period (up to 5 years).

Since the procedure for obtaining a mortgage for the purchase of part of an apartment is quite labor-intensive, most financial institutions do not approve the transaction. The exception is Sberbank, in which it is possible to buy a share of real estate under the “Purchase of Finished Housing” program. The main thing is that all apartment owners are not against the imposition of an encumbrance. An alternative would be to provide another valuable object as collateral.

The bank's rights to a mortgaged apartment upon divorce

In the event of an upcoming divorce, the married couple must first notify the bank where the mortgage was taken out to purchase the apartment. There it is advisable to provide a ready-made solution to overcome the current situation.

The bank has every right to demand full or partial payment of the debt both from all borrowers together (if provided for in the agreement) and individually. The distribution of debt obligations for a loan and interest payments among co-borrowers goes against the legal rights of the bank and may cause changes in the terms of the loan agreement. Therefore, requirements regarding the division of mortgage debt without the approval of a credit institution violate Art. 322 and 391 of the Civil Code of the Russian Federation.

If a conflict arises between divorcing spouses regarding the division of a mortgaged apartment, this is not a reason to change the loan agreement. It also does not eliminate the responsibility of one or both spouses to repay the debt. Based on this, the requirement to divide the mortgage debt equally between husband and wife is, in essence, the need to amend a previously drawn up agreement. And this is clearly unprofitable for the bank, and it rarely makes such concessions.

Attention

In the event that the conflict situation in a divorcing couple drags on, despite the fact that loan payments stop, the bank has the right to repossess the apartment. Then he sells it at auction and thereby gets his money back (Article 50 of the Federal Law “On Mortgage”).

Marriage agreement to resolve the situation

Concluding a prenuptial agreement prevents many controversial issues during a divorce with a mortgaged apartment. You can make appropriate points, additions or changes to it by indicating:

1. Who becomes the borrower, co-borrower on the loan.
2. Who becomes the owner of the home during a divorce? What share belongs separately to the husband and separately to the wife if the spouses own housing as common property.
3. Who makes the mandatory monthly payments. Which party repays the loan and interest?
4. Sources of income used for mortgage payments (salary, income from business, payment for services).
5. Liability for refusal to continue to repay the mortgage or unauthorized withdrawal of assigned obligations.
6. How to divide a mortgaged apartment during a divorce.
7. Under what circumstances are changes made to the marriage contract?

Additionally, you can provide the following information in the text:

• information about real estate: type of housing, its technical characteristics, area, availability of land, cadastral number of the plot and intended purpose, presence of other buildings and structures;
• name of the bank, its address;
• information about the mortgage: total amount, amount of monthly payments, repayment plan for financial obligations.

General scheme for obtaining a mortgage for a share in an apartment

The procedure for obtaining a mortgage loan against a share in an apartment:

1. Filing an application. This can be done at a bank branch or on the official DomClick online platform.
2. Waiting for a response from the bank. The approval received is preliminary. If during the verification process the lender reveals fraudulent activity or false information, the loan may be denied.
3. Inspection and evaluation of the purchased object. The appraiser's services are paid and fall entirely on the borrower. You can select an appraisal company (Sberbank partner) on the DomClick portal in the section “class=”aligncenter” width=”1380″ height=”649″[/img]
4. Signing an agreement with the seller.
5. Concluding a transaction with the bank regarding the issuance of a loan and making a down payment.
6. Registration of the purchased object in Rosreestr. Electronic registration is possible through the DomClick service (section “).

Purchase of real estate under an equity participation agreement

Family capital is used to pay off loan payments or make a down payment for participation in construction.

The rights to housing cannot be immediately formalized during the transaction, so the procedure is delayed. An agreement on participation in construction is signed with the husband or wife.

You cannot divide the rights to an apartment right away. Documents are made for the husband or wife. After the construction of the facility is completed, the parts of all family members are determined.

The signature on the obligation is placed by the citizen who approved the construction, or the owner of the reconstructed object.

Documents required for shared mortgage

To apply for a shared mortgage, you must provide the bank with a certain package of documents:

• Russian passport with a mark of registration at a specific address;
• any second document confirming the identity of the applicant (SNILS, Taxpayer Identification Number, foreign passport, driver’s license);
• birth and marriage certificates (if available);
• certificate 2-NDFL (for the previous six months) or according to the form of a banking institution;
• copies of pages from the work book.

After receiving a positive decision on the mortgage application, you must submit a real estate insurance and purchase and sale agreement, a bank account statement confirming the availability of a sufficient amount for the down payment.

Divorce and mortgage debt

Loan without refusal Loan with arrearsUrgently with your passportLoans at 0%Work in Yandex.TaxiYandex.Food courier up to 3,400 rubles/day!

There is no need to postpone the matter until later, since the bank is not interested in family squabbles. And while the spouses divide the children, decide where they will live and other issues, the housing debt can grow significantly. And it is unlikely that the creditor will make concessions later.

Let's consider all the options:

1. Civil marriage

If there was no marriage contract, then the property will be given to the person to whom the loan was issued. When the second spouse has physical evidence on hand (checks, cavitations), there are witnesses, then it is possible to prove mutual participation in repaying the debt. This rule also applies to the repair of mortgaged housing and/or the purchase of expensive equipment.

We have collected original reviews on this topic here, reviews from real people, many comments, worth reading.

1. Marriage agreement

With this option, all the nuances will be specified in the contract. If the loans and the procedure for their repayment were not spelled out, then legal proceedings will have to be initiated.

1. Loan before marriage

Before family ties, a purchased home or car is considered personal, so it is not divided during a divorce. But payments from the general budget spoil the picture. It is more difficult with new buildings, where ownership is issued only after the residential complex is put into operation.

And here are two scenarios:

• When a person is in an official relationship, the judge will order the property to be divided.

Loan without refusal Loan with arrearsUrgently with your passportLoans at 0%Work in Yandex.TaxiYandex.Food courier up to 3,400 rubles/day!

• Divorce before the certificate is issued. Then the court will force the other party to pay compensation, since the loan was paid through joint efforts.

In such situations, you cannot do without a good lawyer.

1. Married couple - mortgage co-borrowers

It is advisable to resolve everything peacefully, for example:

• continue to repay the debt;
• give up one of the family members from real estate and debt in favor of the second;
• sell the meters with the consent of the banking institution, and then divide the funds;
• repay the loan in full, and then put the property up for sale, and distribute the received rubles among themselves.

The last option for dividing real estate is the easiest in terms of coordination and preparation of papers, since it does not require lengthy proceedings. But in reality, not all couples manage to resolve the issue in this way.

02/16/2018 Information about the authors | Category: Mortgage

The influence of maternity capital on the division of housing

Reference! The judicial authority has the legal right to deviate from the principle of equality of marital shares. Property may be divided into unequal shares. A large share will go to the person with whom the children live. However, financial obligations will remain the same.

Maternity capital is often used to pay off a mortgage. Then the child has the right to receive his share of the property , and this makes the division of the mortgaged apartment during a divorce even more unequal.

The process can happen as follows:

1. The apartment remains with the spouse and children. The spouse agrees to pay part of the loan payments, and not the full amount paid by the other party. The balance of the debt will be paid by the actual owner of the property.
2. The spouses undertake to sell the apartment. The funds received are transferred to a bank account to pay off the mortgage. The remainder of the funds is transferred to the spouse with whom the minors remain. This option is only permissible with the consent of the lender.
3. The apartment is re-registered to the spouse with whom the children remain. The owner of the apartment must transfer financial compensation to the second person. In this case, previously listed payments may be included in this amount.

What property is never divided during a divorce?

The legislation of the Russian Federation establishes a list of objects that are never divided during a divorce:

• property acquired by the husband/wife before marriage;
• property received through gratuitous transactions - by inheritance, gift;
• objects of individual property - personal hygiene items, shoes, clothing, professional tools, sports equipment;
• personal awards, patents, inventions and other results of scientific, intellectual, and sports activities;
• property acquired from the moment of the actual termination of marital relations, when the husband and wife began to live in different territories and maintain a separate household;
• departmental, service housing;
• property of minors - it goes to the spouse, who takes the children for himself.

Distribution of shares by agreement of spouses

In fact, the law does not require mandatory certification of an agreement on the division of property by a notary, but an agreement drawn up in simple written form is very easy to question and invalidate.

Therefore, it is best to have such an agreement certified by a notary. This specialist is empowered to check the legal capacity of citizens when concluding a transaction, as well as the voluntary expression of will.

An agreement drawn up in accordance with all the rules is almost impossible to challenge. Therefore, if the spouses have come to a consensus on the issue of payment of the outstanding mortgage and the division of jointly acquired property, the easiest way is to register this expression of will by a notary.

The property division agreement must contain:

• Full name of the spouses, their passport details;
• Information about marriage (and about divorce, if the marriage was terminated at the time of signing the agreement);
• The exact address of the real estate property and its characteristics, including cadastral number, etc.;
• How the property will be distributed as a result of the agreement;
• How are mortgage payments redistributed between spouses?
• The current market value of the property is indicated.

Redistribution of property rights and debt payment obligations is subject to mandatory registration with the Rosreestr Office. The contract can be drawn up both during marriage and three years after its dissolution.

An agreement concluded by a notary may be invalidated in the following (rather rare) cases:

• the document is drawn up incorrectly (does not have all the required information);
• the document does not take into account the moral side of the issue (what the moral side is is not indicated anywhere; apparently the measure of morality is the personality of a particular judge);
• A transaction is recognized as imaginary or feigned - when the parties hid their actual intentions, and the transaction was completed for selfish reasons;
• If one of the parties is still incapacitated (although the notary is empowered to check the legal capacity of the applicant - that is, to determine whether the party to the contract understands what will happen as a result of signing the document);
• If threats, violence were used to sign the agreement, or the party was misled;
• If the drawn up agreement contradicts the rights and interests of third parties (minor children or creditors).

The last paragraph directly indicates that if the apartment was purchased with a mortgage, then you can take any action with it only with the consent of the bank.