Real estate that does not exist: how to purchase it?

What are the features of registering a deed of gift for real estate to a close relative? What is the procedure for registering property rights? How to register real estate by inheritance?

Good afternoon, dear readers of HeatherBeaver magazine! This is Valery Chemakin, a legal consultant.

Imagine a situation that happened to one of your friends. He never had his own home, and he decided to take out an apartment on a mortgage. The bank approved the loan, he quickly found a suitable option and agreed on a price.

And then he suddenly realized that he didn’t know how to proceed further - where to go, what documents to collect and where to even start processing the deal! Read about how real estate is registered as a property in this article.

At the end of the article, I will review companies that will provide real estate registration services on acceptable terms.

What are the features of real estate registration?

Any legal real estate in Russia is subject to registration in the Unified State Register of Real Estate (USRN). This database is maintained by Rosreestr, so for registration you need to contact this department. With the advent of Multifunctional Centers (MFC), this process has become much easier.

To register real estate acquired as a result of a simple transaction (the owner was alone, without a spouse or children), it is enough to provide the registrar with a regular purchase and sale agreement signed by both parties, identification documents, title documents for the property and a transfer deed.

If there are several owners of an apartment, house or land plot, then registration of real estate transactions in this case takes place at the notary, who certifies them. The purchase and sale agreement is printed on a special form. This procedure guarantees the purity of the transaction, since the notary makes all the necessary inquiries before you sign the contract.

If the seller has a spouse, then his consent, certified by a notary, is required to conclude the transaction. If you have children, you must obtain permission from the guardianship authorities.

Example

I recently sold a plot of land and bought an apartment. The plot was jointly owned by me, my wife and two minor children. Everyone has a share. The apartment also belonged to two persons. Both transactions took place in front of a notary.

At the same time, to sell the plot, I took permission from the guardianship authorities, which was given to me only after opening bank accounts for the children. After settlement, the money was transferred there - in an amount proportional to the existing share in the property right.

If housing was purchased on the primary market, but the house has not yet been put into operation, then a special procedure for registering ownership of an apartment in a new building is applied. You can read about this in detail in our feature article. I will only say that registration of rights to an unfinished construction project is possible in court.

Housing is not always bought. There are cases when it is inherited or received as a gift from relatives. In the first case, the basis for registering property rights is a certificate of inheritance, which is issued by a notary, and in the second case, a deed of gift.

The deed of gift must be drawn up in accordance with all the rules with a description of the object being donated. It is not necessary to register it with a notary. In the case of a gift, it is important to notify the tax office before April 30 of the following year that the property was donated to a relative and attach documents confirming the relationship.

Registration of ownership of real estate accepted as a gift is carried out according to general rules. Keep in mind that the right to use the object arises from the moment of signing the contract and the transfer act, and the right of ownership with the possibility of disposal - from the moment of registration in the Unified State Register.

Why is registration of property rights carried out?

From the beginning of 2021, the procedure for registering property rights is regulated by a new federal law. His number is 218, and he was accepted on July 1, 2021.

This law establishes that any ownership of real estate is subject to registration in the Unified State Register of Real Estate (USRN), maintained by Rosreestr.

Only an object registered in the prescribed manner can be donated, sold, left as an inheritance, that is, disposed of at your own discretion. A sales contract, deed of gift, certificate of inheritance and other similar documents only record the fact of transfer of property from one owner to another.

This is why official registration of real estate is so important. I recommend reading a detailed article about this term on our website. In addition, a right formalized in accordance with the established procedure can only be challenged through court. This guarantees the integrity of your property

How to submit documents for real estate registration - 3 proven methods

Registration of real estate rights in Rosreestr has always been a troublesome matter. The fact is that previously contracts were also subject to registration, so strict requirements were imposed on their content, especially if any government subsidies were used in the calculations.

Today, the registration procedure is extremely simplified.

It is especially easy to register real estate (even commercial) if there is an MFC in your locality. There are 3 legally permitted methods for submitting documents to Rosreestr.

Method 1. Do it yourself

This is the most budget-friendly method, since you only need to pay a state fee. However, when contacting in person you will have to spend a lot of time and nerves. What you need to independently submit documents for real estate registration will be discussed in the next section.

Method 2. Through a representative

A third party can also register ownership of real estate on your behalf if there is a notarized power of attorney for the right to perform such actions. Any acquaintance of yours or a lawyer engaged in similar activities on a professional basis can act as such an assistant.

I would like to note that today many law firms provide similar services for a moderate fee. I'll talk about some of them later. The advantage of this method is not only that you do not waste your time, but also in the quality of collecting documents, which eliminates the possibility of refusal of registration.

Method 3. By registered mail

The law allows you to send documents by registered mail. In this case, you need to be very careful and make a complete inventory of all attached documents.

Since in this case the time frame for registering real estate increases, and the risk of refusal of registration due to errors in paperwork increases, it is rarely used, only when it is impossible to use other methods.

Who offers services for registration of property rights - review of the TOP 3 legal companies

Since Russian legislation is considered one of the most complex in the world, and there is nothing to say about administrative procedures, a large number of offers of legal services are born on this basis. Specialists in various fields are ready to take on your worries for a fee.

Everyone’s appetites are different, as is the quality of service, so I suggest paying attention to 3 companies, which will be discussed below.

1) Ground

For those who know English at least within the limits of the school course, the name of the company says a lot. Yes, this company is entirely engaged in land issues. If you decide to purchase a plot of land, contact them, because they know everything about land.

They will help you, from geodetic surveys to registration of land ownership. It is very difficult to understand all these nuances on your own, so it is better to turn to specialists.

:

• cadastral;
• cartographic;
• geodetic;
• legal;
• evaluative;
• expert.

You can read more about the company on its website.

2) Legal guarantee

This company provides a wide range of legal services. Among other things, specialists are ready to help register ownership of any objects, even industrial ones. The company has offices in Moscow and Omsk, but consulting services can also be obtained through the website.

In addition to ordinary lawyers, Legal Guaranty employs lawyers who will help defend your interests in courts of any instance, including disputes related to real estate.

3) TerraLex

The firm provides services in various legal fields, but they have especially rich experience in the field of land relations, housing law and construction. If you have started building your own country house, you can’t even imagine how many problems you will have to solve at the preparatory stage.

The company's lawyers will assist in the privatization, division or merger of land plots, in obtaining a building permit and, finally, in registering ownership of the house. How complicated this procedure is - read in our special article. The company also provides assistance to municipal authorities, for example, in registering ownership of linear objects.

At the end of the review, I suggest you watch a thematic video, after which I will tell you how to simplify the procedure for registering real estate.

How to register real estate as a property - step-by-step instructions for beginners

If you decide not to use outside help in registering real estate, then before proceeding to action, I recommend that you familiarize yourself with some rules.

What will make it easier and faster to receive documents:

• contacting the MFC instead of Rosreestr;
• preliminary consultation with a lawyer;
• independent preliminary inspection of the purchased object for encumbrances and seizure.

Next, I give an example of registering ownership of an apartment (read about this concept in our separate article), which previously belonged to two owners.

Step 1. We collect documents and contact the registration authority at the location of the object

Since the apartment is owned by two persons at once, to conclude an agreement you need to contact a notary. On the appointed day, you must bring him documents that allow you to check the legal purity of the transaction.

Documents for a notary:

• passports of all parties to the transaction;
• documents on the ownership of the object or extracts from the Unified State Register certified by the blue seal of Rosreestr (now issued instead of a certificate);
• cadastral passport of the property;
• permission from the guardianship authority if the seller has children under 18 years of age.

The notary accepts the documents and within a few days checks the property for seizure or restrictions on alienation. On the appointed day, you come to him again together with the sellers and sign an agreement printed on a special form.

I warn you, the cost of notary services is quite high. For example, for a contract for an apartment worth 2.5 million rubles, sellers will have to pay about 20 thousand rubles. Do not forget to immediately formalize the consent of the spouses so as not to go twice.

Attention! If the apartment belongs to one person, then a trip to the notary is not necessary.

We take the previously listed documents and the agreement signed by the notary, which he has already numbered, sewn and sealed, after which we go to Rosreestr or, better yet, to the MFC.

Step 2. Compose an application according to the proposed sample

If you contact Rosreestr, you will have to independently write an application for registration according to the proposed sample and submit it to a specialist along with the previously listed list of documents for registering real estate.

When you contact the MFC, the application will be printed out on a computer and given to you to sign. The documents will be carefully checked and any shortcomings will be pointed out if any.

Step 3. Pay the state duty

A state fee is charged for registration actions, which can be paid either at the bank or directly at the MFC through the terminal. The amount depends on the type of property and varies from 500 to 2000 rubles. A copy of the receipt for payment of the state duty is attached to the package of documents.

There is no clear answer to the question of how much it costs to register real estate. It all depends on the specific circumstances. If notarial actions are required, then the amount can reach several tens of thousands of rubles, otherwise you can only get by with the state fee for registering real estate.

Step 4. We receive a receipt for documents acceptance

After receiving the documents, you will be given a receipt with the date the results are issued. Objects for which the transaction took place in the presence of a notary are registered most quickly, since this fact allows the registrar not to check the object. In such cases, the result can be obtained within 3 days.

In any case, registration actions are unlikely to last more than 9 days, as this is the maximum period provided by law. The progress of consideration of the application can be tracked by its number on the website of Rosreestr or the MFC of your region. When the documents are ready, you will receive an SMS notification.

Step 5. We receive a certificate of ownership of real estate or a refusal to register

Since the beginning of 2021, certificates have been canceled, as interdepartmental document flow has begun to operate in full force. Today, each department can request an extract from the Unified State Register of Real Estate for any property. When you come for the documents at the appointed time, you will be given this same extract and agreement.

From this moment on, you have the right to dispose of your property, since new data was entered into the Unified State Register when the right to the real estate you registered changed. The entire procedure for registering real estate as shared ownership will take no more than 2 weeks, including the work of a notary.

Table of registration deadlines under the new Federal Law:

Read about how land ownership is registered in the corresponding article.

Real estate that does not exist: how to purchase it?

Expertise of the article: Alexey Alexandrov, GARANT Legal Consulting Service, legal consultant

The Plenum of the Supreme Arbitration Court of the Russian Federation has issued clarifications regarding controversial situations with real estate that will be created or acquired in the future. As a result, not only the procedure for registering such transactions, but also their taxation may change.

The explanations that the Plenum of the Supreme Arbitration Court of the Russian Federation summarized in its resolution (post. Plenum of the Supreme Arbitration Court of the Russian Federation dated July 11, 2011 No. 54 (hereinafter referred to as Resolution No. 54)) concern issues that usually arise in courts when considering disputes related to the acquisition of “virtual” real estate . We are talking about those objects that, at the time of concluding the contract, are actually not available to the seller. For example, if their construction has not yet been completed. The main nuances are discussed in “Current Accounting” No. 10, 2011.

All lower arbitration courts will be required to follow the position of the Plenum of the Supreme Arbitration Court of the Russian Federation when considering disputes relating not only to real estate, but also to land plots that had not yet been formed at the time of conclusion of the agreement.

Please note: these clarifications do not affect situations related to legal relations regulated by the Law on Shared Participation in Construction (Federal Law No. 214-FZ of December 30, 2004). That is, related to raising funds from shareholders (citizens or organizations) for the construction of apartment buildings.

Transaction processing: what to pay attention to

The most important conclusions made by the Plenum of the Supreme Arbitration Court of the Russian Federation regarding the execution of transactions for the acquisition of currently unavailable real estate are the following.

The conclusion of a purchase and sale agreement, if the object itself is actually absent (which means that the seller does not yet have ownership rights to it), does not in itself make the agreement invalid (clause 1 of Resolution No. 54). In this case, to individualize this property, the contract must indicate the cadastral number (if any) or other available information (for example, location, approximate area, etc.) (clause 2 of Resolution No. 54). They can be taken from the design documentation.

If, based on the text of the agreement itself, it is impossible to unambiguously determine the object of the future purchase and sale, but the necessary information is contained in the document that the parties executed in pursuance of the agreement (for example, an acceptance certificate), then such an agreement also cannot be considered invalid.

Please note: in any case, the purchase and sale agreement must indicate the price (for example, it can be set per unit of area). Otherwise, such an agreement cannot be considered concluded (clause 1 of Article 555 of the Civil Code of the Russian Federation).

Is the investment agreement equated to a purchase and sale?

The clarifications given by the Plenum of the Supreme Arbitration Court of the Russian Federation regarding investment and preliminary agreements may result in quite serious tax consequences for companies.

The fact is that there is no such type of agreement as an investment agreement in the Civil Code. That is, investment agreements related to the financing of construction or reconstruction of real estate are not an independent type of agreement, and different provisions of civil law may apply to them. Therefore, judges must determine the legal nature of an investment agreement on a case-by-case basis.

The Plenum of the Supreme Arbitration Court of the Russian Federation obliged the courts, when considering such disputes, depending on the terms of a particular investment agreement, to apply provisions on purchase and sale (Chapter 30 of the Civil Code of the Russian Federation), contracts (Chapter 37 of the Civil Code of the Russian Federation), simple partnership (Chapter 55 of the Civil Code of the Russian Federation), etc. By default, investment agreements are qualified as agreements for the purchase and sale of future real estate (clause 4 of Resolution No. 54).

The question immediately arises: how will re-qualification affect the taxation of such transactions?

After all, based on the provisions of tax legislation, investment contributions are not subject to VAT (subclause 4, clause 3, article 39 of the Tax Code of the Russian Federation; letter of the Department of Tax Administration of Russia for Moscow dated October 25, 2004 No. 24-11/68529), but from the amount of prepayment under the purchase agreement -real estate sales tax is levied at the rate of 18/118 (subclause 2, clause 1, article 167, clause 4, article 164 of the Tax Code of the Russian Federation).

The same applies to the preliminary agreement. The judges of the Plenum of the Supreme Arbitration Court of the Russian Federation came to the conclusion: if the preliminary agreement contains a condition on payment for real estate (in full or a significant part of it), then the rules of ordinary purchase and sale should be applied to it (clause 8 of Resolution No. 54). In other words, in this case, instead of a preliminary agreement, an agreement for the purchase and sale of future real estate arises with the condition of prepayment.

As for residential premises, the Plenum of the Supreme Arbitration Court of the Russian Federation indicated that the purchase and sale agreement in this case is subject to state registration only in a situation where the residential premises are owned by the seller (i.e. this right is registered) (clause 9 of Resolution No. 54) .

If we are talking about future residential premises, then the contract does not need to be registered. It is valid from the moment it is signed by the parties.

Whose land is the owner

The Plenum of the Supreme Arbitration Court of the Russian Federation also indicated that if one party provides a site for construction (it may own, lease, etc.), that is, it is a developer, and the other undertakes to build an object on this site, the provisions on construction contract (clause 6 of Resolution No. 54). The ownership right to the constructed object arises from the development company from the moment of state registration of this right. In this case, the contractor has the right only to payment for work performed.

But if, under the terms of the deal, the contracting company receives part of the premises in the constructed building, this is already a mixed agreement. And therefore, the rules of purchase and sale apply to the transfer of premises.

If, according to the terms of the agreement, each of the parties makes contributions to achieve a common goal - the creation of a real estate property (for example, one party provides a land plot, and the other carries out work, finances construction, etc.), this should be regarded as a simple partnership agreement (p 7 of Resolution No. 54).

But there is an important nuance here regarding ownership.

If the land plot on which the object is built is not registered in the common shared ownership of partners (or in a lease with a plurality of persons on the lessee’s side), then the ownership of the erected building or structure arises only from the company that provided this plot.

Therefore, there is a risk that due to the re-qualification of contracts, the funds received by him from investors can be regarded not as targeted financing (subclause 14, paragraph 1, Article 251 of the Tax Code of the Russian Federation), but as income on which he will have to pay income tax.

Professional assistance in real estate registration - review of the TOP 3 companies providing services

If the procedure suggested above is not to your liking, then I recommend contacting a law firm so that the lawyers can do everything for you. In this case, you will have to increase costs, but you will save time.

One thing I can guarantee: if you choose this method, registering your home as your own will not cause you any inconvenience, especially if you contact the companies suggested below.

1) Lawyer

This company provides legal consulting services via the Internet. You don't even have to get up from your seat to get a consultation. You just need to go to the Lawyer’s website and find the feedback form there. You need to enter the question you are interested in and wait for an answer. You will receive general information on the topic for free.

If you want recommendations specifically for your situation, you will have to pay a small amount, which does not exceed 700 - 900 rubles. For example, you want to get advice on how to terminate a sales contract. First you need to study the answers on the site. You may be satisfied with the information available there.

If not, use the online form or call. After paying for the service, you will receive detailed recommendations and guidelines for action.

If you need to find a lawyer who will take on the registration of your country real estate, then on the Lawyer website be sure to find someone who lives near you, since specialists from all cities of Russia cooperate with the company.

2) Best Real Estate

This company deals only with real estate, so its employees know all the pitfalls in this area. The company has been in the brokerage services market for 25 years, so it has good experience and at the same time knows how to quickly adapt to changes in legislation.

How Best Real Estate employees work:

• provide quality advice on real estate registration;
• Before concluding a transaction, a full inspection of the property is carried out;
• raise the entire history of the acquired object from the moment of construction;
• conduct real estate transactions from the beginning until the new owner receives the keys.

The company's website has an online form for instantly submitting a request for services.

3) Single Window

The company provides a full range of services for registration of property rights. Consultants will explain the entire procedure, including the procedure for registering real estate by legal entities. The company operates in Moscow and the Moscow region. Our specialists will help you sell your home profitably and buy another one.

At the same time, real estate lawyers will not only fully provide documentary support for the transaction, but will also register the property in your name. The Single Window company deals with privatization, inherited real estate, and also works with gift agreements.

At the end of the review, I suggest watching a useful video about the new rules for registering real estate.

How is registration of property rights carried out - 5 main stages

In what form does the registration of property rights take place according to the new law?

Everything is simple here. Each property has its own cadastral number and address, so its history from the moment of commissioning is tracked in the Unified State Register of Real Estate, including all past and present owners.

Registration of ownership means entering information about the new owner of the property into the Unified State Register of Real Estate. If the object has just been built and there is no information about it, then after the appropriate procedures for putting it into operation, it is placed on the cadastral register and assigned a number and address.

According to the new law, the right is also registered at the same time. This is discussed in detail in our article “Registration of ownership of an apartment in a new building.” There you will also find information on how to register ownership of unfinished construction.

Stage 1. Preparation of necessary documents

The law determines that the registration of real estate in the Unified State Register is carried out by Rosreestr, but stipulates that documents for this procedure can be submitted either directly to the registration authority or to the Multifunctional Center (MFC).

In both cases, you need to prepare the same package of documents:

1. Establishing identity.
   A passport or a power of attorney certified by a notary for registration of property rights, issued to a third party by a citizen, organization, municipal or government agency. Officials whose official duties include registration of real estate provide a document that confirms their rights.
2. Documents confirming the emergence or transfer of ownership.
   Purchase and sale agreement (in the case of several owners, certified by a notary), certificate of inheritance, deed of gift, privatization agreement, permission to commission and other similar documents. Provided in 2 original copies, except in notarized cases, when you can provide an original and a copy.
3. Technical documentation for the property.
   Land survey plan, technical plan, map-plan of the territory, survey report, etc.
4. Other documents.
   Applications for registration actions, receipt of payment of state duty, judicial acts.

I note that officials are prohibited from demanding acts of local government bodies, since they must be requested within the framework of electronic interaction, as well as documents not provided for by law.

Stage 2. Contacting a government agency

As noted earlier, there are two places where documents can be submitted for registration of property rights: MFC and Rosreestr (no BTI and, especially, private offices do not do this).

The time it takes to complete the application and the quality of the service depends on where you contact. Today, all MFCs are equipped with electronic queuing devices and convenient waiting areas. There you do not need to write an application yourself and file a file, as happens in Rosrestr. In addition, you will receive an SMS notification when it is ready.

Stage 3. Submission and processing of the application

When submitting an application directly to Rosreestr (after all, MFCs are not yet available everywhere), you need to write an application according to the sample and attach the documents listed above to it. The specialist will carefully study these papers. If everything is fine, you will be given a receipt indicating the date the result was received.

The procedure for submitting an application to the MFC is a little simpler, since all the work is done there by the operator, but the time frame for providing services is somewhat longer.

Comparative table of terms for the provision of public services for registration of ownership of real estate:

Stage 4. Payment of state duty

State duty is a fee paid by the state for the provision of certain services. You need to pay for it at the bank or at payment terminals that are installed directly in the MFC building. If you are not comfortable with technology, then the center’s specialists will help you do this. There is no need to give the original receipt, just a copy is enough.

The amount of the state duty is determined by the Tax Code and depends on the type of registered object. Do not confuse the fee for registration actions and the amount that a notary charges for certifying certain transactions. For example, registration of ownership of an apartment will cost 2 thousand rubles, and a notary can charge 20 thousand rubles for the transaction.

Stage 5. Obtaining a certificate of ownership

Gone are the days when every property owner was given a beautiful, multi-colored certificate of occupancy. Today, these documents remain only with those who registered their property a long time ago.

Since all information about the object and its owner is reflected in the Unified State Register of Real Estate, to which free access is open, the registering authority issues only an extract from it, certified by a signature and seal.

Please note that you become the owner not on the day you receive the documents, but from the moment you make an entry in the Unified State Register. This date is on the statement, and it is important. Why, read the example.

Example

At the end of the year, I purchased an apartment and submitted registration documents on December 28th. I had to go get the completed documents after the New Year holidays. According to all calculations, I could qualify for a property tax deduction only after a year.

Imagine my joy when the extract from the Unified State Register of Real Estate, which I received on January 12, stated the registration date of December 30 of the previous year. There is an opportunity to return income tax for the previous year, because there is no such thing as too much money.

So, you have gone through all the stages of registering property rights and received the treasured document. Now you can dispose of your property at your own discretion, and I bring to your attention an overview of companies that are willing to go through all these steps for you for money.

When real estate registration may be refused - an overview of the main reasons

Rosreestr authorities do not always register an object after submitting documents. Sometimes they are forced to refuse registration actions for various reasons.

What are these reasons? Read on.

Reason 1. False information in the information provided

Some unscrupulous citizens are trying to sell an object that they have no right to sell. Often these are outright scammers who resell the same apartment several times. Some may hide the presence of minor children, which is also unacceptable and serves as grounds for refusal of registration.

Some people try to sell their home secretly from their spouse, which makes it impossible to register such real estate if such a fact is revealed.

Reason 2. Errors in the application

Today, errors in statements are quite rare, but they do occur. Most often they arise due to the person’s own carelessness or a typo when typing on a computer.

Reason 3. Identification of a ban on the transaction

This is the most common reason, since housing is often pledged to the bank as collateral not only for mortgage loans, but also for ordinary ones. A ban on transactions is also imposed by the court when considering property disputes.

Reason 4. Seizure of property presented for alienation

Sometimes bailiffs impose a ban on the alienation of an object belonging to the debtor. Naturally, it is impossible to register such real estate as a property until the arrest is lifted.