Agreement for the assignment of the right to claim under a share participation agreement free of charge

Gratuitous assignment agreement - between individuals or legal entities

If rights are assigned for a specific price (fee), then the agreement will be considered a paid assignment of rights, and if without charging a fee, then this agreement should be recognized as a type of gratuitous assignment.
(a gratuitous assignment agreement (assignment of claims) can be found here). Thus, the Presidium of the Supreme Arbitration Court of the Russian Federation (the Supreme Arbitration Court) expressed the position that if the court establishes the fact of concluding an assignment agreement on a gratuitous basis, then this transaction will be qualified as a gift agreement. A similar position of the Supreme Arbitration Court of the Russian Federation was stated in the Ruling dated October 25, 2013, issued following the consideration of case No. A 53 – 37142 /12.

Select an object

The buyer (assignee), who decides to enter into an assignment agreement, must understand that he is not acquiring housing, but the right to claim it, as well as all the risks that the equity holder bears. There is no need to hope that the person who assigned the assignor (object) to you has already checked everything and is convinced of the guarantees of the relationship with this developer.

If we are talking about standard housing, the buyer selects an object with the parameters he is interested in on the developer’s website, and then filters all similar offers by price.

Agreement on the assignment of the right to claim under an agreement on shared participation in construction (I

— Information about the obligation from which the right of claim arises. Since the right of claim arises from the agreement for participation in shared construction, all details of the said agreement (number and date of conclusion, as well as other information that allows us to establish the scope of the assigned claims) must be indicated in the assignment agreement.

Under an agreement for the assignment of rights (claims) under an agreement for participation in shared construction, one party, the assignor (seller), undertakes to assign its rights of claim that it has under the agreement for shared participation for a certain fee to the other party, the assignee (buyer).

Free assignment of rights between individuals

Unfortunately, among other lists of required papers, the legislator does not oblige to attach a certificate of absence of debts for the donated object.
In practice, this gap causes problems. It often happens that the person who received the gift, having no idea about any debt, is left alone with a difficult situation. So, along with the living space, the recipient can also receive debts for utilities. In this regard, the legal norms of the Russian Federation say the following:

clause 5, part 2, art. 153
Important
The Housing Code (Housing Code) of the Russian Federation imposes the obligation to pay for utilities on a person from the moment ownership arises;
Part 2 Art. 223 of the Civil Code of the Russian Federation states that such a right arises after state registration.

The debt belongs to the owner, not to the property. The gift agreement cannot contain a clause on payment of debts on the donated property, because

The donation should be made only after careful study of this clause, since it will likely require agreement with the developer or written notification within a certain period. Experts advise obtaining written consent to donate rights under the DDU from both the developer and the donee, which allows the donor to protect himself from possible disputes in the future.

Attention

If the donation of rights under the DDU is made in favor of a married person, then in the event of a divorce, the apartment acquired in this way is not subject to division and goes exclusively to the spouse to whom it was donated. This is explicitly stated in Art. 36 of the Family Code of the Russian Federation.

Conclusion Thus, donation can be made in relation to claims against third parties under various transactions and agreements.

Speaking about the assignment on a free basis, individuals are free to enter into this type of transaction. In any case, such a prohibition is not contained in the Civil Code.

Indeed, an agreement on the assignment of rights concluded between individuals, including assignments under the DDU, may be gratuitous. This right is enshrined in paragraph 3 of Article 576 of the Civil Code of the Russian Federation.

However, the gratuitous assignment of rights in this case is an agreement of a mixed nature and when drawing it up, one should be guided by the rules on assignment established in Chapter 24 of the Civil Code of the Russian Federation and the rules on donation provided for by Chapter 32 of the Civil Code of the Russian Federation. This follows from paragraph 1 of Article 572 of the Civil Code of the Russian Federation, which indicates the signs of a gift in a gratuitous transaction for the transfer of the right of claim.

For example, an essential condition of an assignment agreement is the condition of the transferred right of claim, and an essential condition of a gift agreement is the condition of the gratuitous transfer of rights.

Legal advice: it should be clear from the contract that the parties intend to make a free transaction to transfer the right to the property.

If the contract does not contain a condition regarding the price of the assigned right, this does not clearly indicate that the contract is gratuitous. The content of the agreement must contain clear wording that the assignor transfers the right of claim to the assignee free of charge.

The absence of an obvious intention in the contract may subsequently lead to the fact that the transaction will be recognized as compensated and the assignor will have the right to demand payment of the right of claim assigned under the contract.

When concluding a gift agreement, you should remember that this type of transaction has a negative nuance related to taxes.

For example, a participant in shared construction who has received the right under such an agreement is deprived of the opportunity to receive a tax deduction upon purchase, because there are no grounds for this, in case of sale it will not be able to reduce income for expenses incurred, because there are no expenses.

Info

Therefore, when drawing up a gratuitous assignment agreement, you should include in the agreement the essential (mandatory) conditions provided for by civil law for both types of agreements: assignment and donation. For example, an essential condition of an assignment agreement is the condition of the transferred right of claim, and an essential condition of a gift agreement is the condition of the gratuitous transfer of rights.

In addition, you can read about some of the features and risks of assigning rights to an apartment (from the perspective of the Buyer of a new building) at the link.

And for the Seller, the sequence of actions for selling an apartment on the assignment of rights is described in detail in a separate note at the link provided.

The assignment of claims may also be free of charge. For example, in the case when a shareholder wants to donate an apartment that has not yet been built to his relative. The specifics of this deal can be found at the link.

Transaction support by an experienced lawyer ALWAYS reduces risks (especially for the Buyer of an apartment). The services of specialized real estate lawyers can be found HERE.

A detailed algorithm of actions when buying and selling an apartment is presented on the interactive map STEP-BY-STEP INSTRUCTIONS (will open in a pop-up window).

According to Art. 576 of the Civil Code of the Russian Federation (Civil Code of the Russian Federation), the transfer as a gift of the right of claim to a third party can be carried out in compliance with the norms enshrined in paragraph 1 of Chapter. 24 of the Civil Code of the Russian Federation to regulate legal relations regarding the transfer of the rights of the creditor to other persons.

A claim that belongs to the donor as a creditor under any transaction may be transferred as a gift as part of an assignment of the claim (cession). At the same time, it will have certain features:

To transfer the rights of the creditor-donor to the donee, there is no need to obtain the consent of the debtor (if this does not contradict the agreement or the law). If an agreement between a creditor and a third party stipulates a prohibition of assignment, but the donor, despite this, donates his existing right of claim to his counterparty, then the gift can be declared invalid after the debtor files a claim in court only if it is proven that that the donee knew or should have known about the existing prohibition. It should be especially noted that, by virtue of clause 4 of Art. 388 of the Civil Code of the Russian Federation, the donor may, without the consent of the debtor in a transaction, assign (donate) the right to receive unreliable performance, if this does not make the fulfillment of the obligation significantly more burdensome for the obligated person.
After the transfer of rights from the donor to the donee, it is necessary to notify the debtor in writing that the transfer of the rights of the creditor has taken place. The risk of adverse consequences associated with failure to notify the debtor is borne by the new creditor. In particular, the debtor may fulfill an obligation to the original creditor before receiving notice of the transfer of the right of claim to a new person, which will be the basis for termination of the debtor’s obligations. According to Art. 385 of the Civil Code of the Russian Federation, notification can be sent by both the donor and the donee. The only difference in who will send the notification is the following: if the notification is sent to the debtor by the donee as a new creditor, then the debtor has the right not to fulfill the obligation assigned to him in favor of the donee until he receives evidence of the transfer of the right of claim.
If the donation of the right of claim took place without the consent of the debtor and entailed certain expenses for the debtor-individual, then the donor and the donee are obliged to jointly reimburse such expenses.
It is important to take into account that, as a general rule, the right of claim of the donor passes to the donee to the extent and under the conditions that existed at the time of the donation. In this case, those rights that ensure the fulfillment of the obligation and those that are closely related to the claim (for example, receiving interest) are transferred to the donee. In addition, by virtue of paragraph 3 of Art. 385 of the Civil Code of the Russian Federation, the donor is obliged to transfer to the donee all documents that certify the right, as well as provide all information that is important for its implementation.

Remember that you cannot grant rights of claim that are inextricably linked with the identity of the creditor, such as, for example, the right to receive alimony or compensation for harm to life and health (according to Article 383 of the Civil Code of the Russian Federation).

Example

Ivanov A. decided to give his daughter Ivanova S. the right to claim under an apartment lease agreement for a two-year period, according to which he was a tenant. The deed of gift was drawn up in simple written form, but was challenged by S. Ivanova’s stepmother, since in the situation under consideration it was necessary to carry out state registration of the gift, according to

clause 2 art. 609 Civil Code of the Russian Federation

Thus, the type of donation in question is always made in writing, but in certain cases it may require notarization or state registration of the assignment of rights.

The question of the relationship between the gift agreement and the assignment of the right of claim (assignment) arose when the Civil Code of the Russian Federation established the possibility of donating not only property, but also property rights. It is important to know that when making such a donation, not only the norms of the law regarding the assignment of rights must be observed, but also the norms of civil law concerning the institution of donation. A comparison of the institutions under consideration allows us to conclude that:

the right of claim can be assigned only in relation to a third party, while the right of claim can also be given in relation to the donor himself;
a donation is always gratuitous, while an assignment can be both compensated and gratuitous; however, to assert that gratuitous assignment and donation are identical, because certain restrictions are established for the transfer of a gift (for example, such an agreement cannot be concluded between commercial organizations);
the rights and obligations of the parties under donation and assignment agreements are similar, as indicated by clause 3 of Art. 576 of the Civil Code of the Russian Federation.

Agreement for the assignment of the right to claim under a share participation agreement free of charge

All disputes arising during the execution of this agreement are resolved with mandatory compliance with the pre-trial claim procedure. The period for consideration of a claim is 15 days from the date of receipt of the claim. If a party does not receive a claim sent to the address specified in this agreement, the pre-trial dispute settlement procedure is considered to be complied with from the moment the party sending the claim receives the returned correspondence.

— In the event that the actual total area of the Property, based on the results of BTI measurements, differs from the design one in a smaller direction, the Developer returns the money for the difference, based on the cost of construction of 1 square meter of area __________ (___________________) rubles within 90 days from the date of signing by the Shareholder - 2 acts of acceptance and transfer of the Object.

Assignment in a built house

If the house is built, then from the moment the keys are handed over to the shareholder, it is no longer possible to assign your rights.

From the moment the last brick is laid, flights of stairs are installed, elevators are installed, entrance areas are equipped, several months pass before the commissioning certificate is signed.

The term is often determined by the reputation of the developer, previously commissioned objects and the presence of deficiencies in them. The commission is obliged to check the actual area and other parameters with those declared in the project documentation.

If the owner does not plan to use the purchased property for personal needs, this period of time can be used for sale by assignment. He receives a smaller amount, but is not spent on furnishings or repairs.

Agreement on assignment of rights (assignment) under an agreement for participation in shared construction

a notarized copy of the Equity Participation Agreement, with all appendices, additional agreements and other documents that are an integral part of the said agreement;
a certificate from the Developer confirming payment of the property rights of the Assignor to require the Developer to transfer ownership of the Object to him.

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Agreement for the assignment of the right to claim under an equity participation agreement: sample

The developer has the right not to return the funds transferred by the Investor if the Investor fails to provide reliable documents confirming the solvency of the new investor. In this case, the funds are returned to the Investor within a reasonable time after the Developer finds a new investor.

1.2. The amount of construction financing by the Investor is ____________ rubles (___% of the total amount of financing for the construction of the entire house), which corresponds to the cost of construction of one apartment located in the specified residential building. The amount of financing specified in this paragraph includes the cost of construction of an apartment, communications and other engineering structures, landscaping of the adjacent territory, the cost of environmental and other necessary work provided for in the design estimates and permitting documentation, as well as the Developer’s remuneration.

When developers can meet halfway

Often developers do not want to make changes to the DDU. But in some cases they are more willing to cooperate than in others, experts say.

According to realtor Irina Lysenko, one of the important factors is price. The expert says that during the entire period of her work, only the developer Legenda agreed to change the conditions of the pre-employment agreement. The company sells apartments much more expensive than the average market price, so it is interested in every transaction and tries in every possible way to retain the client. When it is not possible to convince a potential buyer, the developer is ready to change the clauses of the contract. But Lysenko notes that the mass market does not want to do this. At the same time, developers say that they will buy the apartment anyway – they say “if you don’t like it, don’t take it.”

Competition also plays into the hands of the buyer. According to director Natalya Shatalina, the most popular way to persuade a developer to change contractual terms is to refer to his direct competitors, note the legality of the terms of their contract and declare his intention to buy an apartment in their project.

If the buyer wants to achieve changes in the clauses of the contract, he needs to substantiate his demands as fully as possible, referring to legislation and judicial practice, Shatalina continues. In this case, she is referring to situations where the DDU option proposed by the developer is contrary to the law. To speed up the agreement on terms, the shareholder needs to draw up a protocol of disagreements to the agreement and send it to the developer.

Basically, developers agree to change the terms of the contract at the start of sales or if we are talking about an expensive property, Shatalina notes.

General Director Vladimir Kashirtsev confirms that at the start of sales, companies can be too short, and in such situations, shareholders often ask for clarification of certain clauses of the contract. Developers often accommodate buyers halfway. At the same time, it is not expected that the text of the DDU will change significantly - in fact, the developer will only more fully describe its individual points.

Kashirtsev also notes that the company is most likely to listen to the buyer’s requests to change the terms of the contract if it is strongly interested in it - for example, if a person intends to buy several apartments at once.

City apartment

— The original creditor who assigned the claim is liable to the new creditor for the invalidity of the claim transferred to him, but is not responsible for the failure of the debtor to fulfill this requirement, except in the case where the original creditor assumed guarantee for the debtor to the new creditor.

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If the participant (assignor) is an individual, then in practice, rights are most often transferred if the agreement between the shareholder and the developer is an equity participation agreement (EPA) or a preliminary agreement (equity participation or purchase and sale). Needless to say, when transferring rights under preliminary agreements, the risks must be squared.

Assignment with equity participation

Federal Law No. 214, which regulates shared participation in construction, allows the owner to sell his right without waiting for a certificate of ownership to be received.

A buyer who acquires real estate by assignment effectively becomes a new shareholder. He receives not only ownership rights, but also all the risks inherent in shared construction.

In order not to subsequently join the ranks of defrauded equity holders, the buyer must perform the following actions:

Check the reputation of the developer and the availability of previously completed properties.
Check project documentation, construction permits, and intended use of the land plot.
Check whether the shareholder has repaid his debt to the developer by the time of sale. The buyer receives not only square meters, but also the obligations of the shareholder.
Pay attention to the defect of the shareholder-seller. If the property was paid for during marriage, you must obtain the consent of the seller's spouse to the transaction.
Pay attention to the mental health of the seller-shareholder, check whether he is deprived of legal capacity.
If the seller-shareholder is a legal entity, you need to obtain confirmation that the transaction is not large or interested party, or obtain approval for the transaction from all necessary persons.

Registration of an agreement for the assignment of rights of claim under an agreement for participation in shared construction

Legal examination of the documents submitted by the Customer for registration of the agreement for the assignment of the right of claim under the agreement for participation in shared construction
Formation of a package of documents required for state registration of an agreement for the assignment of the right of claim under an agreement for participation in shared construction
Submission of documents to the Federal Registration Service, support of state registration of the contract, receipt of the registered contract and its transfer to the Customer

— An extract from the register of legal entities confirming the absence of changes in the constituent documents, certified by the Ministry of Taxes.

Legal entities submit documents confirming the authority of the person who signed the pledge agreement for the right to lease a land plot on behalf of the legal entity:

Within the framework of the civil legislation of the Russian Federation, the assignment of the right of claim represents the opportunity of one person, on a paid or gratuitous basis, to assign to another person his rights (claims) arising from any agreement (Clause 1 of Article 382 of the Civil Code of the Russian Federation).

The assignment carried out under a shared participation agreement is also regulated by Federal Law No. 214-FZ of December 30, 2004 “On participation in shared-equity construction of apartment buildings and other real estate and on amendments to certain legislative acts of the Russian Federation” (hereinafter referred to as Federal Law No. 214-FZ). By acquiring the right to claim under an agreement of shared participation in construction, a citizen becomes a new participant in the shared construction of a particular property, and not only the rights, but also the corresponding obligations, as well as all the risks associated with participation in shared construction, are transferred to him in full. What should be specified in the contract? - an agreement under which the right is assigned; — content of the assigned right; — terms, price of concession; — documents that must be transferred to the person acquiring the right of claim; - other conditions, if they differ from the conditions established under the primary contract. In other words, a citizen who acquires the right to claim under a share participation agreement in construction will be obliged to fulfill all the terms of the primary agreement to the developer. It is also necessary to keep in mind that if a share participation agreement is declared invalid, a citizen who has received rights under an assignment agreement can make claims only to the person who assigned him the invalid right of claim, but not to the developer (Article 390 of the Civil Code of the Russian Federation). In addition, Article 11 of Federal Law No. 214-FZ provides for the requirements imposed by the legislator for the assignment of the right of claim under an equity participation agreement, namely: The assignment is allowed only after the participant in shared construction has paid the entire price under the agreement, otherwise the citizen acquiring the right of claim among other things, the debts of the person under the agreement for shared participation in construction who assigned his right will also be transferred; An assignment is possible from the moment of state registration of the agreement for shared participation in construction and only until the parties sign a transfer deed or other document indicating the transfer of the shared construction project. In the absence of registration of an agreement for shared participation in construction, such an agreement is considered not concluded and, therefore, does not entail legal consequences for the parties. When drawing up a transfer deed, the developer’s obligation to the shared construction participant under the shared construction agreement is considered fulfilled, which means there is nothing left to concede in this case. A participant in shared construction, after registering documents on the ownership of the apartment, can sell it under a purchase and sale agreement. The assignment agreement, as well as the agreement on shared participation in construction in respect of which the assignment is made, must undergo state registration (otherwise the assignment agreement will not be concluded). In accordance with Federal Law No. 214-FZ, the developer’s consent to the assignment of the right of claim under an agreement for shared participation in construction is not required, except in the case where the assignment is carried out with the transfer of debt. However, notifying the developer is in the direct interest of the person acquiring the right of claim, since in this case the developer will know exactly to whom he must fulfill his obligations to transfer the apartment. It is also necessary to contact the developer, as well as Rosreestr, the body that carries out state registration of the share participation agreement in construction, in order to make sure that the apartment has not been assigned to anyone other than the person acquiring the right to claim it. Often, a participant in shared construction cedes his right of claim for a price greater than the price under the shared participation agreement that he himself had previously paid to the developer. Thus, the money contributed by citizens acquiring rights of claim under an agreement of shared participation in construction is a payment for the acquired right, but not for the apartment itself. If it becomes necessary to terminate the agreement for shared participation in construction, the new participant in shared construction bears the risk of non-return of his funds, especially in the part exceeding the price of the agreement for participation in shared construction. This is due to the fact that the previous participant in shared construction is not responsible to the new participant for the developer’s failure to fulfill the transferred right of claim, which follows from Article 390 of the Civil Code of the Russian Federation. The developer, in turn, in accordance with the provisions of Federal Law No. 214-FZ, is obliged to return only those funds that were paid towards the price of the shared construction agreement, while interest for the use of other people's funds is payable by the developer to the participant in shared construction , will also be accrued only for the specified amount. The issue of the penalty, which the developer, in case of violation of the deadline for the transfer of a shared construction project, is obliged to pay to a participant in shared construction, will be resolved in a similar way - it will be calculated based on the price of the contract for shared participation in construction, and not on the amount paid for the assignment of the right of claim.

Agreement for assignment of rights of claim under an equity participation agreement sample

Also pay attention to the need to notify the developer and whether the property being sold is pledged; The legislation clearly defines the period by which assignment transactions can be completed - this is the period from the moment the agreement is concluded until the moment the property is transferred into ownership on the basis of the transfer and acceptance certificate; You should pay close attention to the item where the price is stated.

In this case, the assignor bears responsibility in case of invalidity of the rights transferred to him. However, the assignor will not be responsible for the actions of the developer (freeze of construction, bankruptcy). “Assignment” can be issued only until the moment the assignor’s rights to housing are realized.

The essence of assignment

The assignment of rights implies that the seller confirms his rights to the property after its construction with an agreement on shared participation, which must be registered. So, the owner of these rights (the seller) assigns his rights and obligations under the equity participation agreement to another person, who, after the delivery of the house, will receive the property.

Important: this provision is valid only until the house is put into operation.

If the transfer and acceptance certificate is signed, the shareholder is obliged to wait for the registration of his right in Rosreestr (Extract from the Unified State Register of Real Estate). The period between the transfer of the apartment under the deed and the receipt of property is called the “dead period”, since during this period no transactions can be made either with rights or with property.

The assignment agreement must be registered, so under no circumstances give the money before registration with Rosreestr

Otherwise, there is a risk of being left without money and with double or triple assignments

The assignment can be formalized by a bilateral or tripartite (with the participation of the developer) agreement in simple written form. An agreement can be called either simply an agreement or an assignment agreement, or an assignment agreement.

Important: The assignment agreement must be registered, so under no circumstances give away the money before this agreement is registered with Rosreestr. Otherwise, there is a risk of being left without money, and with double, triple, and so on assignments.

The shareholder is obliged to notify the developer of the transaction. Officially, there is no such requirement in the legislative framework, but the developer is a party to the equity participation agreement. Subsequently, he has the right to challenge the transaction. An exception is if the Participation Agreement specifies consent as mandatory.

Articles 382 clause 2 and 388 clause 4 paragraph 2 of the Civil Code of the Russian Federation tell us that if the agreement states that “consent is required”, then it cannot be assigned without the consent of the developer.

Agreement on assignment of rights and transfer under the agreement of participation in shared construction

In accordance with Art. 382 of the Civil Code of the Russian Federation, the subject of an assignment transaction is the right of claim belonging to the creditor on the basis of an obligation. As follows from Art. 307 of the Civil Code of the Russian Federation, by virtue of an obligation, one person (debtor) is obliged to perform a certain action in favor of another person (creditor), such as: transfer property, perform work, pay money, etc. – or to refrain from a certain action, and the creditor has the right to demand that the debtor fulfill his obligation.

Judicial practice specifies these general cases of prohibitions, including, for example, a ban on the transfer of rights under a simple partnership agreement without the consent of the remaining partners, unless the agreement has not terminated at the time of assignment (Regulation of the FAS UO dated November 22, 2005 No. F09-3804 /05-С4, FAS North Caucasus Region dated September 14, 2005 No. F08-2528/2005). These are also cases when the contract was concluded at auction - during a competition or auction.

Make calculations

All payments between the assignee and the assignor are made after the return of documentation from the registering authorities. Moreover, the algorithm of actions of the parties is the same as during a transaction for the purchase and sale of housing. Payment is made by transferring the required amount to the account, also through a bank letter of credit or, by far the most common option, through a safe deposit box.

The transaction under the assignment agreement is considered completed after the assignor receives the money.

ATTENTION!

Due to recent changes in legislation, the information in this article may be out of date!
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