Assignment of a mortgage on an apartment: what is it, risks, taxes

Hello, in this article we will try to answer the question “How to buy an apartment with a mortgage through assignment.” You can also consult with lawyers online for free directly on the website.

If you buy an apartment before the house is commissioned or during construction, you may regret it dearly later. It is not known which migrants, how they built it, all this later comes out sideways when they don’t understand anything about construction. The walls are cracking, the floors are the same, there are no corners, there will always be air blowing from the slopes if they are not redone.

When paying off a mortgage, the buyer should play it safe and, together with the seller, sign a preliminary purchase and sale agreement. This is directly related to the fact that the client, in addition to searching for housing, must simultaneously prepare documents for a loan.

Documents for obtaining a mortgage

Next, you need to clarify the amount of your mortgage debt to the bank. To do this, you can contact the office of the credit institution for the appropriate certificate. Each bank sets its own requirements for documents in order to consider your application. And this list can vary greatly. But some points are the same for all banks.

By the way, contractors who work for the developer can also act as sellers of apartments for assignment. Alexander Ginovker tells how to assess risks if the contract is issued to the contractor as a legal entity. It is important that the contractor fulfills his obligations to the developer and that all documents are available. But our desires do not always coincide with our possibilities. However, material problems, in this case, can be solved. If you do not have the required amount on hand, you can always purchase an apartment in a new building under a mortgage assignment agreement. Since many banks will be happy to provide you with this opportunity. And the number of such banks lending for the purchase of housing upon assignment of the right of claim is growing.

Transfer of ownership rights to an apartment, i.e. a transaction for the purchase and sale of an apartment before the construction of a house is completed is called a cession. The assignor (a person who bought an apartment in a new building directly from the Developer, most often an investor) sells, i.e. transfers to the assignee (buyer) the right to receive a new apartment for a higher fee than he purchased from the construction company. The assignment of rights to a mortgage in ordinary cases refers to a certain system in which a client in need of housing buys real estate that is under a mortgage.

It is dangerous to encounter such problems when transferring shares, such as:

The developer is almost bankrupt. The house may never be built, and you will have to run through the courts to at least get your money back.
The apartment building was not built according to the design. It will be good if the layout of the apartments is better and it is put into operation, but if not, you will have to be content with what you have.
Housing takes a long time to build. Long waits are not good for anyone.
Will meet with double reassignment. Unscrupulous developers may sell the same apartment to several buyers.
The contract may be invalidated if the developer is not aware that the share has been assigned.
The main risk is to be left without real estate and without money if the house is never built. For example, the construction committee will prohibit the operation of the facility.
The developer is fake. The risks when buying an apartment by assignment are high, just like with a construction organization, so you should check licenses and other documents before purchasing.

This is important to know: Persons who have the right to demand that a marriage be declared invalid

Despite the fact that the procedure for completing such transactions is simple and quite transparent, there are still certain nuances and associated risks that must be taken into account. The main one is if the house has not yet been completed. You can never be sure that the project will not be frozen and a person will not lose the money invested.

When a scheme for the assignment of rights to a mortgage is carried out, it should be remembered that any lender does not conclude a document that will indicate the assignment, but concludes an additional document for the new borrower.

My brother entered into a contract of agreement for the construction of an apartment in his name. Currently, the house has been rented out, but the developer has not yet issued the keys and documents for the apartment. What can be done to register an apartment in the name of his mother, a disabled person of the 2nd group?

Real estate expert at Advex Corporation. Real Estate" Anna Deloverova assures that the risk of double sales when purchasing apartments by assignment is practically eliminated today: "There are isolated cases of cases being considered in court on the recognition of the priority right to a built apartment, but these construction projects are ten years ago. Now, under equity participation agreements, Rosreestr keeps strict records of old shareholders and new ones. Housing cooperative agreements are not registered with Rosreestr. Here, all responsibility lies with the developer - it is the developer who draws up assignment agreements on his own terms (sometimes this means payment from 50 thousand rubles to 10% of the price of the property).” The next step is to pay off the debt to the bank using the buyer’s funds. This usually happens in the presence of both parties to the transaction, so that the buyer is convinced that his funds are being spent on purpose.

They also pay attention to the registration period, which can reach up to two months. But there are developers who, immediately after drawing up an assignment agreement, hand over the keys to the apartment if the house is already being occupied, without waiting for registration.

For example, many banks issue a mortgage using two documents: a passport and another identification document. For example, a driver's license.

Also in such cases, the buyer is obliged to pay the seller some funds to cover the amounts of various duties for previous periods. The amount of this amount is agreed upon by the seller and the buyer.

The next point is taxes. As part of the Tax Code, the seller transfers a fee of 13% of the difference in value assigned in the DDU agreement and the assignment agreement. In standard cases, in order not to overpay extra funds, sellers insist that the documents indicate an amount less than the actual amount. In the case of mortgage lending, banks do not make such concessions, and you will have to pay tax in accordance with the amount actually received.

Divorce resolution options

During a divorce, spouses are often forced to resolve issues of dividing acquired property and find compromises regarding their loan obligations. When applying for a mortgage, a marriage partner always acts as a co-borrower, which imposes certain obligations on him. If the main borrower cannot make payments on time, the bank has the right to demand repayment from another party to the mortgage agreement.

In a situation of divorce, the spouses come to mutual agreements, including the fate of the loan. They describe in detail the sequence of actions, and the assignment of rights is one of the options for solving problems with mortgage payments.

Possible ways to solve the problem are also:

Early closure of remaining debt;
Repayment of the loan in equal shares;
Payment in accordance with the court decision;
Finding a buyer and selling real estate with the consent of the bank;
Refusal of payments and putting the apartment up for auction.

The assignment of rights without a mortgage can only be carried out with the consent of both spouses and the bank. In such a situation, the credit institution does not care which of the former partners will repay the loan in the future, but the requirements for sufficiency of income and compliance with the requirements remain. Resolving the issue of credit obligations without the participation of the creditor is possible only upon receipt of a court ruling, which will serve as the basis for re-issuing documents and changing the essential terms of the agreement.

How to sell and buy an apartment by assignment: instructions

Thus, when purchasing such housing, in addition to the living space, the client is assigned all responsibilities for mortgage lending. If we talk about mortgage lending by transfer of housing that was taken out on credit, then in practice this scheme is almost unrealistic. Typical loan programs do not consider such transactions, and only a few banks can agree to such conditions.

The list of federal banks that can easily lend to such forms of transactions already includes: Sberbank, VTB24, Bank of Moscow, Promsvyazbank, DeltaCredit and others, which are among the top most reliable banks in Russia. At the moment, smaller ones are also being connected. Vladimir Sparak, Deputy General Director of the ARIN real estate agency, says that often an investor who sells an apartment by assignment has not yet fully paid the developer and offers the new shareholder to pay off his debts to the developer. The developer believes that the assignment is possible only after the original shareholder has fulfilled its obligations. That is, on behalf of the seller they offer to pay the buyer, which puts the latter in a precarious position.

Positions of two large banks of the country regarding the procedure

If the initiator of the assignment is an individual, then not every bank will meet halfway and approve the client’s wishes. So, Sberbank will not give an agreement without compelling reasons. For example, spouses, when applying for a loan and there is no marriage contract, are required to do so with the borrowers. And in the event of their divorce, demands are made on one of the spouses in full.

VTB24 also does not agree to carry out the procedure and in most cases suggests considering the following options:

sell real estate;
pay off debts to the bank.

We renegotiate the equity participation agreement

If, after repaying the mortgage and removing the encumbrance, the seller refuses to enter into a transaction within the time period specified in the preliminary agreement, the potential buyer has the right to go to court and demand a double refund of the deposit or force the potential seller to enter into a purchase and sale transaction. If, after reading the article “On Assignments” (link), you are convinced that buying an apartment by assignment of rights of claim is a legal, uncomplicated and profitable transaction, then perhaps you might have a desire to purchase such real estate.

It is important to understand that the bank, by issuing you a loan on such terms, is taking a risk. Because it doesn’t check your employment and income, and banks don’t like to take risks. The only thing that makes them give up their beliefs is profit. Therefore, your required down payment on your mortgage should be up to 50%, depending on the bank. And also, according to this scheme, you are guaranteed an increased percentage of 0.5 points or more.

Before selling an apartment under an equity participation agreement, the Seller is obliged to pay the Developer the entire amount of debt for the apartment, or the remaining amount of debt can be transferred to the Buyer. For this purpose, an Agreement is drawn up for the transfer of debt to the new owner. This type of apartment sale can be carried out repeatedly, but only until the house is put into operation and the owner receives a transfer deed for the apartment. The sale of an apartment under an equity participation agreement requires mandatory registration with the Federal Registration Service.

This is important to know: What is the difference between joint ownership and shared ownership?

Risks and benefits for the new owner

For a new participant in legal relations, the procedure has both positive and negative aspects.

The advantages of the situation include:

It’s easier to collect documentation from the list for a loan. There is no need to provide papers related to real estate valuation. Since the services of appraisers are not cheap, this will save you a lot.
A decision on assignment can be obtained much earlier, since, again, the bank no longer checks the documentation for assessing the cost of square meters.
Almost always you get legally clean living space (without third party rights or debts).
You may be pleased with the price of the apartment. In any case, it will be less than the value on the real estate market.

Along with all the advantages, there are also significant disadvantages to choosing to purchase an apartment this way.

Every advantage has its own “but”, which can completely cross it out and devalue it in the eyes of a potential borrower:

a full solvency check cannot be avoided;
you must provide all documents required for loan approval;
accrued sanctions can significantly increase the final cost of purchased housing. It is necessary to clarify and negotiate the transfer of such obligations on an individual basis;
An additional agreement to an existing contract is not drawn up, but a new one is concluded. This is also fraught with changed lending conditions - an increase in the interest rate, a reduction in the liquidation period, and the addition of various commission fees. All these measures accordingly increase the size of the monthly payment;
the organization's requirement to enter into new insurance agreements;
in case of debt formation, the bank has the right to sell the property through an auction or transfer the prerogative again to another person;
there is a risk of refusal to evict the original borrower. Then you will have to resort to the help of the Department of Internal Affairs;
the former owner also has the right to challenge the validity of the transaction. The court will take his side if the latter proves the existence of obviously unfavorable conditions for him in the transaction.

Assignment of rights under a Sberbank mortgage

The transfer of rights to collect the mortgage debt requires the signing of a separate document drawn up in the form of the main obligation. The bank can only approve this transaction if the new borrower meets all the requirements of the credit committee. The assignment of a mortgage from Sberbank can also be carried out by the financial institution itself. Transferring a pool of mortgages to a third-party bank helps replenish working capital and quickly increase assets.

Assignment at the initiative of the lender

The creditor also has the right to initiate a change of persons. But in this case, the borrower’s consent is not required. For example, one bank resells mortgage loans to another. The second becomes an active creditor and acquires the prerogative of demanding the return of funds from debtors. The example most clearly explains what an assignment of mortgage is.

However, it is imperative to inform the person in writing about the completion of the transformation. The person must provide the following information:

To transfer payments, the recipient's coordinates (details).
Frequency and payment methods.
Changes in preferences and obligations of participants.

If the client does not receive such a notification, the new creditor has no right to demand timely fulfillment of the obligation and impose penalties.

Assignment of mortgage to a new borrower

Not all people are able to repay their obligations. The causes of financial problems may vary. Someone is laid off at work, and someone loses their ability to work. In this case, the borrower can transfer the responsibility for repaying the debt to another person (by agreement with Sberbank). The agreement can be signed only after checking the applicant.

It must meet the following requirements:

Stable financial situation and employment;
Absence of criminal and administrative crimes;
Positive credit history;
Low debt load;
Availability of additional sources of income;
Age from 21 to 65 years;
Availability of a life and health insurance policy.

Mortgage department employees are usually reluctant to re-issue a loan. The assignment of a mortgage from Sberbank is carried out as a last resort when the client faces serious life troubles.

Assignment of a mortgage to a third party (without a registered mortgage)

According to current legislation, the mortgagee may assign the mortgage debt to a third party if this action does not violate the legitimate interests of citizens. The new lender receives the right to satisfy his claims at the expense of the value of the collateral property. The mortgagee to whom the right of claim has been assigned is obliged to maintain trade secrets and not disclose the borrower’s personal data (in accordance with 152-FZ). Disclosure of confidential information is punishable by law. The assignment of a mortgage from Sberbank involves the conclusion of an assignment agreement.

This document must contain the following information:

Date and place of signing;
Details of the parties;
Mortgage agreement number;
The amount of principal and accrued interest;
Deadlines for transfer of documents;
Debt payment schedule;
Conditions for termination of the transaction;
Signatures of counterparties.

The debtor is notified in writing of the transfer of the right of claim. If this operation requires financial expenses, the pledgee is obliged to reimburse the costs at his own expense. The assignment of a mortgage from Sberbank is registered with government agencies.

Registration procedure

The procedure involves a clearly demarcated order of actions:

A debtor who wants to relieve himself of the burden of credit obligations and sell an apartment finds a suitable applicant for such a purchase.
The seller and buyer apply to the banking institution for approval of the transfer of preferences.
The bank checks the potential client and makes a conclusion about the possibility or impossibility of concluding a transaction with him.
A newly created mortgage agreement and related agreements are signed between the lender and the buyer.
The prerogative of ownership is being re-registered.
A settlement is made between the buyer and the seller (the difference from the amount paid on the mortgage).
The new participant in the legal relationship liquidates the loan on the agreed basis.

Assignment of a mortgage to a third-party financial organization (with a registered mortgage)

A mortgage is a security (CS) certifying the rights of the mortgagee. A mortgage allows the lender to place a lien on the collateral. It also makes it possible to demand the fulfillment of debt obligations. The transfer of rights under a security is carried out by indicating the new owner of the debt (the corresponding mark is placed in the mortgage). If the transfer record is made by a citizen acting on behalf of the pledgee, then the security must contain information about the power of attorney.

If the Central Bank is registered as a depository, then the assignment of the mortgage from Sberbank is carried out by making an entry in an electronic account. The credit record certifies the rights of the new mortgagee and does not require additional notes to be made to the Central Bank. After the debtor repays the loan, he can take the mortgage back from the lender. If the latter refuses to provide the document, the borrower can go to court.

In the banking business, mortgages are used to securitize assets. Sberbank is actively buying mortgages from AHML and issuing mortgage securities worth hundreds of billions of rubles. This credit policy allows the bank to constantly increase its loan portfolio. German Gref (head of Sberbank) intends to increase the net profit of his organization to 1 trillion rubles by 2021 (mortgage securities will become a key element of the long-term business plan).

Assignment of mortgage under DDU

Purchasing real estate in a house under construction involves signing an equity participation agreement (DPA). The rights under this agreement may be assigned to a new investor. This procedure requires mandatory registration with Rosreestr. The assignment can be made before the building is put into operation. If the buyer has signed an apartment acceptance certificate, then he will no longer be able to assign the rights to the residential premises.

The assignor is not obliged to coordinate his actions with the construction company, but he must notify it of the assignment within the established time frame (this provision does not apply in the case where housing in a new building is not fully paid for). The notice must be in simple written form. The document must indicate the details of the assignor and assignee. A copy of the assignment agreement should also be attached to the notification.

To carry out a mortgage assignment transaction, the following documents will be required from Sberbank (original and copy provided):

Receipts confirming payment for the property;
The developer’s consent to the assignment of debt (if there is debt);
Consent of the buyer’s spouse to enter into an assignment agreement (notarization required);
The bank's consent to carry out the transaction (if there is a mortgage);
DDU;
Written approval of the agreement by the guardianship authorities (relevant for operations affecting the interests of minors and incapacitated citizens);
Extract from the Unified State Register.

In certain situations, a construction company may reject an application for the assignment of a mortgage from Sberbank. The assignment agreement is canceled and state registration of the transaction is suspended.

Tax situation

Often the assignment agreement is fixed in the hope of avoiding additional tax expenses. When signing a purchase and sale agreement, the former owner undertakes to pay a fee to the state treasury upon the sale of the property, if he has been the owner for less than three years.

There are actually effective methods for reducing the tax levy:

registration of a deduction for interest with a limit of 3 million rubles and for the principal debt - 2 million. That is, it is realistic to take 390 and 260 thousand maximum;
The amount subject to taxation is the amount between the amount for purchase and sale. If the property was sold for the same price as it was purchased, then no tax is charged.

Mortgage assignment: main risks

Up to 20% of apartments in new buildings are purchased under an assignment agreement. Lawyers highlight the following risks of such transactions:

Bankruptcy of the developer company. Shared construction in Russia is somewhat reminiscent of roulette. There are always stories in the news about defrauded investors organizing pickets and storming bank branches. The reason for the assignment of a mortgage from Sberbank may be due to a violation of building codes or the impending bankruptcy of the organization. The assignor is not liable to the assignee for actions committed by the management of the construction company (in the absence of a guarantee agreement). The new mortgagee faces a grueling trial with the developer;
Invalidity of the assignment agreement. The assignment is considered illegal if the shareholder has not paid for the new housing in full and has not received consent to complete the transaction (issued by the developer). After termination of the agreement, the seller is obliged to return the money for the residential premises and reimburse other material expenses;
Multiple assignment of mortgage from Sberbank. An unscrupulous investor may assign the mortgage to a large number of citizens. To “transfer rights”, so-called “investment memorandums” are used, which do not need to be registered with government agencies. Lawyers advise agreeing to an assignment only if there is a DDU and transferring funds only after registering the transaction with Rosreestr;
Challenging the contract. The assignment of a mortgage may be considered illegal if a new apartment is purchased at too low a price. If the premises were purchased less than a year before the bankruptcy of the construction company, the transaction is considered invalid. In this case, the assignment agreement will be terminated.

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A shareholder who wants to avoid these problems must conduct a thorough check of the developer’s business before signing the LDU. You should pay attention to the financial indicators and credit load of the organization. You should also go to the FSSP website and check the developer for outstanding debts.

Carefully study the reviews of citizens who bought apartments in a new building. Pay attention to the personalities of the company's managers and owners. It is necessary to enter the full names of the directors into the Yandex search engine and collect as much information as possible about these people. Take your time with your choice and enter into transactions only with reliable counterparties.

Assignment of mortgage and everything connected with it

Permission from the credit institution

Having concluded an agreement with a banking organization, it will not be possible to resolve issues relating to the subject of collateral alone. The only legal case of disposing of such property is the transfer of rights upon death and, accordingly, according to a will to the heir. All other manipulations with the collateral real estate at the time of its disposal can be carried out only after obtaining the approval of the bank (in fact, until the loan is repaid by the real owner of the living space).

IMPORTANT !!! Therefore, you must first notify the bank of your intentions in writing by sending an application indicating the request. Lending organizations treat this kind of request with extreme caution and skepticism, and therefore approve the request quite rarely.

If the borrower still manages to complete the transaction without the knowledge of the bank, the latter has the right to:

declare the transaction invalid in court;
demand early repayment of the loan with payment of all applied penalties subsequent to the fact of unilateral violation of the concluded agreements;
recover property that is pledged.

Purchase of real estate by assignment

Some real estate buyers are interested in the question of what is the transfer of an apartment in a new building using a mortgage, and how does it differ from the transfer of secondary housing.

The assignment of an apartment in a new building is the conclusion of an agreement on the transfer of one’s rights and obligations regarding real estate until the signing of the act of acceptance and transfer.

That is, the property has not yet been built, and the future apartment is purchased by assignment under the DDU - this is a fairly common option in the primary housing market.

If the rights under the DDU are not encumbered by the mortgage of the former owner, you must independently choose a financial institution with the most favorable conditions. The developer must be accredited by the bank. Such a transaction does not cause any difficulties for the credit institution.

When assigning ownership rights to a future apartment, the seller (that is, the one who assigns the rights) is released from liability for possible failure to fulfill the developer’s obligations to the buyer. But bears full responsibility for the invalidity of the transferred rights and obligations.

In what cases may it be necessary

The debtor is allowed to transfer the preference of ownership of the mortgaged living space to third parties, as well as all obligations associated with the housing loan.

The need for the procedure arises due to the occurrence of a variety of circumstances in human life:

After a divorce, one of the ex-spouses renounces his share in favor of the other. Accordingly, the entire burden of repaying the loan falls on the shoulders of one, but subsequently he becomes the full owner of the entire property.
The sale of property is urgently required. The debtor has a tight deadline to cancel the loan and sell the property. Here it is possible to take advantage of the transfer of preferences for living space. Typically, the process requires much less time than liquidating the loan in advance, removing the restriction on the home, and finally selling it.
Receipt within the framework of the inheritance mass. The inherited person acquires not only the prerogative of ownership, but also the obligation to cancel the mortgage to the banking institution.
The debtor wishes to liquidate the loan due to the lack of possibility of further repayment on his own.
The mortgage holder cedes the prerogative to claim borrowed funds to another legal entity based on the sale of the mortgage portfolio or if the borrower fails to fulfill obligations to make payments - to a collector.

Assignment from an individual

Based on Articles 391 and 382 of the Civil Code of the Russian Federation, any of the parties - both the bank and the borrower - can assign their right to receive a benefit or obligation.

A mortgage by assignment from an individual is issued very simply, with a minimum package of documents from the seller. In essence, in such a transaction we are talking about transferring debt along with the purchase of housing.

In this case, the buyer must provide:

passport of a citizen of the Russian Federation;
application form for the bank;
documents confirming income;
employment information.

The main disadvantage of the assignment for the first borrower, but at the same time an advantage for the buyer, is a significant reduction in the cost of the property offered to the buyer.

Like any other transaction, an assignment agreement has many subtleties that should be taken into account when concluding it. Before drawing up a contract, it is better for inexperienced buyers to contact a lawyer who will accompany the conclusion of the transaction.

Conditions for the assignment

Payment of the contract price

The assignment is permitted only after the shareholder has paid the entire contract price. This is confirmed by the Reconciliation Certificate received from the developer.

Below we will address two main questions:

1) Buying a “clean” apartment, without the encumbrance of a mortgage. But at the same time using a mortgage when purchasing.

2) And the purchase of an apartment that is pledged to the bank.

In both of these cases, the condition for payment of the entire contract price is fulfilled. Namely: in the first case, the apartment is just “clean”. The current shareholder, who wants to transfer his rights to the apartment to you, at one time purchased it with his own funds. Before the transaction, he must prove this to you with documents:

confirmation of payment (for example, opening a letter of credit or a cash receipt order with the seal of the developer, if he deposited his money at the cash desk);
a reconciliation report received from the developer.

In the second case, the first investor purchased an apartment using a mortgage, that is, he took money from the bank to purchase a loan. And the bank, in turn, transferred this money to the developer. Our seller doesn't owe anything to the construction company - he owes the bank. Therefore, the condition for full payment of the DDU amount has been categorically fulfilled. This will also be confirmed by a reconciliation report with the developer and a payment document from the bank, most likely, again, a letter of credit.

The only acceptable case when the DDU will not be fully paid is when the seller bought his apartment by borrowing money from the developer, that is, in installments. In this case, assignment is also possible, but it will have to be agreed upon with the installment plan.

Developer's consent

To purchase an apartment through assignment of a mortgage, the buyer will need formalized consent from the developer, if required by the contract.

Let us remind you that neither the civil code nor federal law 214 provides for such consent. However, developers usually strive to include this condition in the contract. There were cases when the court declared the transaction invalid due to non-compliance with this condition of the contract.

Coordination with the bank

Also, when assigning rights under a mortgage, approval from the borrowing bank will be required if the apartment was purchased with a mortgage loan.