Transfer of rights to an apartment
According to the Tax Code of the Russian Federation, any income received by a Russian citizen must be taxed. Including if it was received from the sale of an apartment under an assignment agreement. Thus, regardless of whether the sale of an apartment owned or the sale of shared ownership is carried out, the income is subject to tax. However, the tax base itself can be reduced by the amount of expenses incurred. In fact, the tax must be paid only on the difference between the amount of sale under the assignment agreement and the amount of purchase of the “addition” from the developer.
About 25% of real estate transactions are carried out under assignment of rights agreements. They are quite safe and are approved by banks in case of purchasing an apartment through a mortgage. The risks that assignment transactions carry are more likely associated with the risks of shared-equity construction itself, because even when the apartment is built and ready, it is not a fact that the house will be accepted by the regulatory authorities and put into operation. Therefore, when purchasing an apartment by assignment of rights, in addition to the seller, you must carefully check the developer himself.
Taxation nuances
The primary buyer of an apartment receives a certain income from the sale of his share and his rights.
Therefore, he must pay the state a tax on this income - 13% of the amount received.
The buyer of the share has the right to a property deduction, according to Art. 220 Tax Code of the Russian Federation.
In addition, if he attracted borrowed funds from the bank to purchase this share and took out a mortgage loan, then he can receive a deduction from all interest paid on the loan. This is also stated in Art. 220 Tax Code of the Russian Federation.
The seller of the share must independently fill out a declaration in Form 3-NDFL and submit it to the tax office at the place of his permanent registration.
This must be done before April 30 of the following year after the year in which the income was received.
Documents for obtaining a property deduction are also drawn up independently and submitted to the tax office by April 30 of the next year.
Only those citizens who are officially employed and pay income tax to the budget have the right to deduction.
Tax on assignment of rights under DDU
When completing the transaction, the buyer must receive documents according to which he would see his debt to the developer. If the new contract for the assignment of rights is incorrectly drawn up, it will be impossible to oblige the buyer to pay the remaining amount.
As construction nears completion, home prices become higher. In the agreement on the assignment of rights, the price of the apartment will differ from its original cost. There is receipt of income, therefore, income from the transaction of assignment of rights is subject to taxation. It is necessary to submit an income tax return to the tax office.
The procedure for registering the assignment of rights to claim an apartment
Starting from 2021, in many cities you can only apply for registration at the MFC. Then the MFC employees themselves transfer the documents to the Registration Chamber. Those. The Registration Chambers no longer accept citizens directly, but only through an intermediary in the form of the MFC. If in your locality you can submit documents directly to Reg. Chamber, then it’s better to do so.
You can obtain consent at the company office. Most often, the Developer requires 5% for the procedure for assigning the right of claim and issuing consent to the transaction. Most often, the Seller sells the apartment at a higher price than purchased from the Developer. The percentage of payment to the Construction Company is calculated from the amount sold by the Seller. For example: an apartment was purchased from the Developer for 1.5 million rubles, and is sold for 2 million rubles, then 2 million * 5% = 100 thousand rubles. — this amount is deposited into the personal bank account of the construction company.
We recommend reading: Purchase and sale agreement for a dacha plot of land
Assignment of rights to an apartment in a new building - what is it?
And in any case, when buying an apartment in a new building not from the Developer, but from a third-party individual or legal entity for the assignment of rights , you must always coordinate this matter with the Developer himself, and obtain written permission from him for such a transaction. This eliminates the risk of possible adverse consequences caused by the assignment of rights (clause 3 of Article 382 of the Civil Code of the Russian Federation).
It happens that the reason for selling an apartment by assignment of rights is, for example, the Developer delaying the delivery of the house, poor quality of construction, or even the pre-bankruptcy state of the Developer himself. The initial co-investor (shareholder), having become disillusioned with the project, can withdraw from it by selling his claims to the apartment to a new shareholder. Therefore, the Buyer here should, before making a decision, thoroughly study the construction project itself, its current state (construction progress) and prospects for its completion, as well as the reputation of the Developer, so as not to buy a pig in a poke, flattered by an attractive price. How to do this - see the links to the corresponding steps in our INSTRUCTIONS.
What it is
An assignment is a legal transaction of a civil nature, the essence of which is that one person cedes certain rights to another person, while also transferring a certain amount of responsibilities.
As a rule, rights and obligations to real estate are assigned. In this case, a written agreement must be concluded, which must be registered with Rosreestr.
Under an assignment agreement, one party - that is, the seller of rights, for a certain amount of money can assign to another person - that is, the buyer, certain rights to the property, while transferring to him part (or all) of the responsibilities.
Under an assignment agreement, you can assign:
- The right to demand the transfer of living space into ownership.
- The right to rent non-residential premises.
- Other rights.
You can also cede not only rights, but also responsibilities. For example, debt obligations to pay a certain amount of money under an agreement.
But you should not think that the assignment transaction is concluded by force. It benefits both parties, which is why it is so popular.
The most common subject of a transaction is rights to real estate, especially an apartment.
Under the agreement for the assignment of the right to an apartment, the new buyer of the apartment undertakes to pay funds for this apartment, in accordance with the provisions of an existing agreement between the seller of the apartment and its buyer.
For example, citizen A. buys an apartment in a new building and pays a certain amount of money for it every month.
Suddenly, A.’s circumstances change for the worse, and he can no longer pay this amount every month.
He finds citizen B., who agrees to pay the remaining funds for this apartment, but by purchasing this apartment as his own. This is where the contract of assignment of the right of claim is concluded.
All parties are satisfied - the new buyer that he is purchasing an apartment, the old buyer that he does not need to take out a bank loan or get out in any other way, the developer that the shareholder did not go bankrupt.
This is the meaning of the assignment of rights transaction. In exactly the same way, you can assign your share in a housing or construction cooperative.
What to check
But, before concluding a deal and signing an assignment agreement, you need to check several nuances. This:
| As a shareholder | the counterparty had previously settled with the developer |
| How much money does a new shareholder need to deposit? | so that the developer issues written permission to change the payer. As practice shows, this is approximately from 1% to 5% of the initial cost of the share |
| It is necessary to find out additional circumstances | which will inevitably emerge:
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By finding out these nuances in advance, you can protect yourself from undesirable and unpleasant consequences of concluding a transaction for the assignment of a share.
The legislative framework
Regardless of the subject of the agreement, the assignment is a legal transaction of a civil nature.
The norms and parameters for concluding a transaction are regulated by civil law - Art. 388-390 of the Civil Code of the Russian Federation.
Since we are talking about a housing construction cooperative, it is worth relying on the norms of Section 5 of the Housing Code of the Russian Federation.
Registration of the assignment agreement occurs in accordance with the provisions of Art. 164 Civil Code of the Russian Federation. The assignment of the right to a share is formalized in accordance with the Federal Law of December 30, 2004 No. 214-FZ “On DDU”.
Sale of an apartment by assignment
In the absence of these conditions in the DDU, it is sufficient to notify the developer in writing about the transfer of rights to the property to another person. It is necessary to obtain written consent only if the housing was purchased in installments and not paid in full. If the apartment was purchased with a mortgage, the bank's consent is required for the assignment.
The greatest benefit can be obtained when selling housing through the assignment of a completed and rented house. The main thing is to be in time before signing the deeds and taking ownership. In this case, you can win up to 10-15% in price compared to selling an apartment in a finished but not commissioned building.
Procedure for drawing up an agreement
An agreement on the assignment of a share in real estate to another person is drawn up in writing and signed by both parties to the transaction.
The procedure for drawing up the assignment agreement will depend on whether the share is fully paid.
If the share is paid in full, then there is no need to ask permission from the construction company, since the apartment is already the property of the buyer.
In this case, you can formalize any other legal transaction for the alienation of ownership rights - purchase and sale, donation or other. Here there is only a transfer of rights, duties are not transferred.
If the share is not paid in full, then the new buyer assumes not only the right to demand delivery of the apartment on time, but also the obligation to pay the share for this apartment. In this case, there is a transfer of both rights and obligations.
When debt obligations are assigned, it is necessary to obtain written consent from the developer to change the debtor.
And if the share is paid using borrowed loan funds, then the consent of the bank that issued the loan.
In any case, the construction company must be notified of the assignment of rights. This must be done in writing. It is the primary buyer who must take care of this.
In addition, he must be sure that the developer has received notice. Therefore, it is recommended to send it by mail with acknowledgment of receipt.
The notice, signed by the accepting construction company employee, should be retained as evidence in the event that the developer claims that he was not properly notified of the assignment.
The developer's consent to the assignment of rights must be in writing and certified by the signature of the head of the company, as well as a seal.
The algorithm for drawing up an agreement on the assignment of a share is as follows:
| Both parties prepare the necessary documents | and the seller transfers all the documents to the buyer. An act on this is drawn up, which is signed by both the seller and the buyer |
| A preliminary assignment agreement is drawn up | under such an agreement there is no need to pay anything, this agreement only needs to be discussed and the necessary adjustments made to it. If the parties are satisfied with everything, then on the basis of the preliminary agreement a main agreement is drawn up, which is signed by the parties, and then the agreement is registered in Rosreestr |
It is imperative to clarify whether there are any arrears in payment due to the primary buyer.
To do this, he must submit a certificate from the construction company. This is an important point, since a decent amount of penalties may accrue on the amount of delay.
In addition, if the primary buyer has not paid contributions for several months, the developer may refuse to fulfill his obligations. Then the buyer of the share will suffer.
Securities that are required
All three parties to the agreement must collect a certain package of documents. It includes:
| Documentation | confirming the identity of the primary and secondary buyer |
| Documents from the construction company confirming the legality of this construction process | these include:
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| Written consent to assignment of rights | and a certificate stating that the primary buyer has no debt to the developer for payment of the share |
| Documents on membership in the housing cooperative | and payment documents confirming payment of membership and entrance fees to the housing cooperative |
| Positive decision to accept a new member into the cooperative | and document acceptance certificate |
| If the primary and secondary buyer are legally married | then the notarized consent of the spouse to complete the transaction |
| Other documents | which may be requested by Rosreestr employees during state registration of the agreement |
Sample document
The same conditions apply to a contract of assignment of rights as to any other civil contract.
Therefore, it must be drawn up in writing, signed by both parties to the transaction, and contain the following information:
| About the parties to the transaction | and about the subject of the transaction |
| On the rights and obligations of each party to the transaction, both in relation to each other and the subject of the transaction | the amount of the monthly fee, the procedure for its payment and frequency |
| Responsibility of each party for violations of the terms of the agreement | pre-trial procedure for resolving conflict situations |
| Cases of unilateral termination of the agreement | and cases of filing a lawsuit |
| Details of each party | other information, depending on the details of the transaction |
The procedure for drawing up an assignment agreement in a new building
Assignment is possible only before the transfer of rights to housing from the construction company to the participant in shared construction. That is, the assignment of the rights of the shareholder is possible only until these rights to the housing under construction have been realized. When the rights to the constructed apartment are transferred to the shareholder, that is, after the execution of the transfer and acceptance certificate of housing, it will no longer be possible to draw up an assignment agreement.
By selling his unfinished apartment through an assignment agreement, the shareholder can not only return the funds paid in full, but also make a certain profit, since apartments in a building under construction usually increase in price from the start of the sale until the end of construction work.
Property tax deduction upon transfer.If the apartment was purchased under a share participation agreement and an assignment agreement (cession), and one part of the payments was made by the previous shareholder, and the other part was paid by the new shareholder. Who in this case can receive a property tax deduction and in what amount?
The right to receive a property tax deduction provided for in paragraph 2 of Art. 220 of the Tax Code of the Russian Federation, have individuals who purchase housing not only under sales and purchase agreements, but also who built it themselves, entered into an agreement for shared participation in construction, or received rights under such an agreement as a result of the assignment of the right of claim.
When assigning rights, the previous shareholder cedes all his rights under the agreement, and the new shareholder acquires.
In this case, the person who assigned his rights loses the right to receive a property tax deduction for the costs of purchasing housing. According to paragraph 2 of Art. 38 of the Tax Code of the Russian Federation, property for tax purposes means types of objects of civil rights other than property rights. Under an equity participation agreement, the shareholder has the right to claim the property, which he acquires under the transfer and acceptance certificate. Upon assignment, the previous shareholder loses the right to claim; therefore, he does not acquire the property under the contract. Consequently, he does not have the right to a property tax deduction for expenses for the purchase of housing (provided for in paragraph 2 of Article 220 of the Tax Code of the Russian Federation).
On the other hand, the new shareholder, to whom the rights under the contract have been assigned, acquires the right to claim the property and, subsequently, the property itself under the transfer and acceptance certificate. From this moment on, he has the right to receive a property tax deduction for the costs of purchasing housing.
However, a person who has assigned his rights under a shared construction agreement, an investment agreement for shared construction or another agreement related to shared construction may apply a property tax deduction for personal income tax in relation to income received from the assignment of the right of claim under the agreement.
This provision was introduced into Article 220 of the Tax Code of the Russian Federation by Federal Law No. 216-FZ of July 24, 2007, according to which, under legal relations that arose from January 1, 2007, a taxpayer can take advantage of a property tax deduction when assigning rights of claim under a shared construction agreement (agreement investment in shared construction or other agreement related to shared construction). However, it does not apply to legal relations that arose in 2003 - 2006.
Ask your question about current legislation and company activities.
The main risks when buying an apartment by assigning rights in a house under construction and commissioned
As is clear from the above, the assignment agreement is concluded with an individual/legal entity to purchase an apartment from him in a building that is under construction. A purchase under this document can be completed until the house is put into operation.
The practice of concluding such agreements before the actual delivery of the house is common because such objects are purchased by investors at the stage of digging a foundation pit, at a lower price, but it makes no sense for them to register ownership of the apartment. They are trying to implement it up to this point. In addition, no one wants to deal with that time period, possibly a long one, when the registration of ownership of housing takes place. During this period, it is impossible to sell the object, and the result is an incomprehensible state.
