Alienation of property: what does alienation of an apartment mean, a sample agreement for the alienation of real estate, shares of residential premises

Alienation of property is a procedure in which the right to own, use and dispose of property passes from one person to another. By default, it is believed that alienation includes complex actions carried out voluntarily by the owner of the property (for example, by concluding transactions). However, in the Civil Code of Russia there are norms in accordance with which this procedure can be carried out forcibly.

In this article we will tell you what alienation of property is.

What it is

Forced alienation of property means actions taken by government agencies to confiscate the property of an individual or legal entity on legally established grounds. This can be either a court order or a decision of other authorized bodies. The list of situations in which property is forcibly alienated is clearly regulated by the current legislative framework.

Actions as a result of which the thing will be alienated are carried out by the owner himself , albeit by virtue of mandatory requirements provided for by law. For example, the owner of property that he cannot legally own must alienate it within the time limits provided by law.

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For example, the procedure is performed if the property is classified as a restricted item. Another situation is when real estate that is located on a seized plot of land is sold at auction. Another example is the alienation of property that has been foreclosed on. It can be imposed, for example, on real estate taken out on a mortgage.

Procedure for alienation of real estate

Alienation of residential premises can be carried out through transactions - this is the most common basis. Regardless of the type of transaction, the transfer of ownership under it must meet certain conditions:

Only an adult capable owner can alienate real estate. On behalf of and in the interests of an incapacitated person, a transaction is concluded by his legal representative. You can entrust the alienation to a trusted person.
The written form of the contract is mandatory, no matter what deal the parties enter into. Notarization is welcome.
Any transaction must comply with the general and special requirements of the Civil Code. For example, a purchase and sale agreement includes a description of the object and its price, but a gift agreement cannot contain provisions for counter representations.
When transferring objects, the rights of third parties must be respected. For example, in accordance with , entrepreneurs have the right of first refusal to purchase real estate they rent from the state. If private real estate was acquired by one of the spouses during marriage, its alienation is possible only with the consent of the second, since it is their common property.
Whatever the basis for the alienation, the transfer of ownership of real estate is subject to state registration. Only after information about the new owner is recorded in the Unified State Register of Real Estate is the property considered alienated.
Only unencumbered real estate can be freely alienated. A lien, mortgage/pledge, or prohibition on alienation will create problems in transferring ownership.

The procedure for the alienation of residential premises is always the same, regardless of the type of basis transaction. It includes several mandatory steps. Let's look at them using the example of a real estate purchase and sale agreement:

Conduct of negotiations. The parties stipulate the terms of the transaction: price, procedure for transferring real estate, division of registration costs, and so on.
Preparation of a draft agreement. The development is usually entrusted to a lawyer, realtor or notary, although the law does not prohibit drawing up an agreement yourself.
Signing the contract. The parties can sign the agreement anywhere. As a rule, this happens in the notary office at the location of the object.
Signing the transfer deed. According to Art. 556 of the Civil Code, such an act is a mandatory condition of the purchase and sale agreement. We recommend that you draw it up in case of concluding other transactions involving the transfer of real estate.
State registration. You can register at the offices of Rosreestr, the nearest MFCs, or online through the State Services electronic service.

What does the law say about termination of possession?

The grounds on which the right of ownership is forcibly terminated are specified in Art. 235 of the Civil Code of Russia.

Thus, the procedure is unacceptable, except for cases where, on the grounds provided for by law:

foreclosure on property for obligations;
property that an individual/legal entity cannot legally own is alienated;
real estate located on a plot of land that is seized due to improper exploitation is alienated;
an object of unfinished construction is alienated due to the expiration of the lease agreement concluded with the state;
real estate is alienated due to the seizure of a plot of land for the needs of the state;
unused cultural assets and domestic animals are purchased;
property is requisitioned;
property is confiscated.

Reference! The transfer of property into state ownership from individuals and legal entities is carried out with compensation for the price of the property and other losses. The procedure for reimbursement is prescribed in Art. 306 Civil Code of Russia.

In addition, the Constitution of the Russian Federation designates the right of every person to property. Article 35 states that any citizen of the Russian Federation has the right to own property and can only be deprived of it by a court decision. The right of private property is protected by law.

What documents are needed to alienate property?

Most foreclosure transactions involve the sale or transfer of real estate. Other alienation options (donation or confiscation) are much less common in practice.

List of seller documents for drawing up an alienation agreement (sale of an apartment):

Title document (which confirms his right to own real estate). Purchase options: bought (purchase and sale agreement);
received as a gift or exchanged (contract of gift or exchange);
privatized (privatization document);
received as an inheritance (certificate of right to inheritance).

Title documents (prove that the property belongs to this particular seller). From January 1, 2021, state registration of real estate is confirmed by an extract from the Unified State Register of Real Estate. Another important point is included there: that there are no encumbrances or liens on the apartment.
Seller's ID (passport).
A copy of the financial personal account and a certificate of absence of debt on utility bills.
A signed purchase and sale agreement (it is this that, from a legal point of view, fixes the process of alienation of property).
The fact of transfer of rights is confirmed only by official state registration of rights in the register. Where do you get permission? After the purchase and sale of real estate, you need to order a new extract from the Unified State Register of Real Estate. You will have to pay a state duty and tax on the sale of real estate (if the apartment was owned for less than three or five years, it depends on the date of purchase).
Consent of the spouse to the sale of the apartment or share in it (if the apartment was purchased during marriage). All property owners must agree to the sale! You will also need the consent of the guardianship authorities if minors are registered in the apartment.

How can property be alienated?

Almost any property can be alienated if there are appropriate grounds for performing this procedure. For example, the state may seize the testator's weapons from a person who receives an inheritance. In this case, the basis is the absence of a license to own a weapon from an individual.

The following types of property are most often alienated:

real estate;
securities;
Copyright.

Real estate

Real estate is forcibly alienated from owners in the interests of the state. For this reason, the state guarantees that it will compensate the owners for losses. Real estate can be confiscated only if it is located on a plot of land that is subject to confiscation for the needs of the state and the municipality.

The Civil Code of Russia provides data on:

rules for purchasing land from the owner;
rules for calculating land value;
rules according to which the right to own property is terminated;
the owner's rights to the land that is being purchased.

The state equally compensates for losses incurred by the property owner. In addition, the municipality or government agency that seizes the property must prove through the court that it is not possible to achieve the state goal without the alienation of real estate.

Securities

Securities are alienated in one of 2 ways. Thus, you can place registered securities by making credit entries in the accounts of the previous owners in the depository or registrar.

You can also place documentary bonds by making credit entries on deposit accounts or issuing certification documents to the previous owners. In fact, the alienation of securities is carried out in the same way as for real estate (sale, donation, exchange, confiscation).

Copyright

Copyright covers scientific discoveries, artistic achievements, literary works, databases, PC applications, innovative technologies and much more. The person who owns the result of intellectual activity has exclusive rights to it. It has the right to give others permission to use its intellectual property or to prohibit them from doing so.

Important! To obtain intellectual property rights, it is necessary to complete official registration with a government agency. Only after this will this right acquire the status of a “good” for sale, donation, or exchange.

The agreement on the alienation of copyright is drawn up in writing. It must indicate the amount and rules for payment of remuneration. This can be either interest on income from intellectual property or a one-time payment.

Paid and gratuitous alienation: differences and features

The second criterion by which alienation can be divided is compensation. That is, the alienation of property owned by the Russian Federation or citizens for compensation is the transfer of rights to it in exchange for a material representation. The most common example is a purchase and sale agreement, the consideration of which is the transaction price.

Paid alienation is provided not only under the contract, but also in case of forced seizure of the object. For example, in the case of seizure of real estate for government needs or during requisition, the owner may demand compensation for the value of the lost property.

Often property is lost without compensation, that is, without material representation. This happens both compulsorily and voluntarily. In the first case, this is foreclosure on property or its confiscation.

Alienation as a result of a gratuitous transaction is, first of all, an agreement of gift or donation. If the agreement contains mention of a counter-representation (in exchange for a gift), the substance of the transaction is violated. It will be considered invalid.

Procedure

Let's look at the example of a piece of land to see how alienation is carried out. First, the Russian citizen receives a notice informing him of a violation of legal norms during the exploitation of a plot of land. A decision is made in court to forcibly confiscate the site. If the owner’s guilt is established in court, a writ of execution is issued. After this, the land plot is subject to seizure by bailiffs.

Next, the plot of land is sold at auction or becomes the property of the state or municipality. To restore their own rights to land, the former owner must go to court. Forced alienation can last for several months or more. The timing is affected by the circumstances under which the procedure is performed.

To seize land, you may need the following documents:

owner's passport;
documents that establish the right to a land plot;
documents that certify the right to a land plot;
technical documents for the land - cadastre plan, description of the site, certificate from the BTI about the buildings located on the land, appraiser's conclusion;
expert opinion on the condition of the territory;
act on seizure of land;
court statement.

Each of the listed documents is provided in the form of photocopies and is certified as originals.

The consequences of land seizure include the following:

The owner will lose his own rights to the land, will not be able to use it at his own discretion, or benefit from its exploitation.
The owner will lose the right to use the land plot as collateral.
The owner will not be able to sell, exchange, donate the territory, or rent it out.

In addition to rights, the owner will also lose his obligations in relation to the alienated plot, for example:

payment of taxes, utility bills;
organization of agrotechnical and security measures;
exploitation of the land plot only for its intended purpose.

In certain situations, ownership of property can be restored. The exception is cases when property is confiscated. When seized in this way, the property is sold at auction, and another person receives the right of ownership.

Reference! As a rule, the previous owner cannot challenge this action, and the only option for compensation for losses incurred is material compensation. Similar rules apply for nationalization, when the entire land becomes state property.

Voluntary and forced alienation: differences and features

As mentioned above, the procedure for the alienation of real estate can be voluntary or compulsory. This criterion fundamentally distinguishes the different processes of transferring ownership of housing or land. Let's take a closer look at these features.

Voluntary transfer of real estate

Voluntary alienation of real estate is a transaction that is an expression of the internal will of each party. Consequently, both parties consciously enter into an agreement and agree to transfer ownership of the property. Only in this case is the alienation considered voluntary.

Voluntariness as an expression of the internal will of a party to a transaction is not respected in the case of signing an agreement:

incompetent, limited in legal capacity or a minor;
a representative of an incapacitated person if the transaction violates the interests of his ward;
representative of the owner, if the power of attorney does not give authority to alienate;
under the influence of delusion, deception, threat or violence;
an owner whose condition did not allow him to understand the meaning of his actions and manage them.

A transaction for the alienation of real estate signed involuntarily by the owner is invalid.

Spouse's consent to alienation

If the owner acquired the property during marriage, a mandatory condition for any transaction in his respect is the notarized consent of the spouse to alienate the property. According to paragraph 2 of Art. 34, everything that spouses acquired after marriage is considered their joint property, regardless of who the property is registered in.

If a spouse plans to dispose of common property, state registration of the transfer of rights will require spousal consent issued by a notary. Otherwise, the transaction may be declared invalid.

When selling an apartment in which a child is registered or has a share in the ownership, you will have to obtain the approval of the guardianship authorities. To obtain it, you must prove that in exchange for the housing being sold, the child will be provided with equivalent square meters.

Rules for registering voluntary alienation

Transactions on the transfer of ownership of real estate are formalized in writing. This is due to the procedure for further state registration, because one copy of the agreement must be submitted to Rosreestr.

In addition, when preparing a transaction, the following rules for certifying contracts and their conclusion must be observed:

the owner presents all title and technical documents for the object, informs the acquirer about the imposed encumbrances and the rights of third parties;
the parties indicate in the contract a full description of the object in accordance with the technical passport, the purchase and sale price, information about the parties to the transaction, indicating passport and other data;
the parties are recommended to stipulate the procedure (for example, signing a transfer deed) and terms of transfer of real estate, the procedure and terms of settlements, responsibility;
It is recommended to formalize the transfer of the deposit with an additional receipt;
it is necessary to determine in advance and indicate in the contract who will handle the re-registration in Rosreestr and will bear the associated costs;
Certification by a notary is welcome. It will confirm the unconditional legality of the transaction.

Check out a sample of a standard contract.

Forced seizure of real estate

Any alienation of real estate without the will of the owner is forced. Therefore, it is impossible to formalize it with any kind of transaction. Seizure always occurs by decision of a court, bailiff service or executive authority.

According to paragraph 2 of Art. 235 of the Civil Code, forced alienation of real estate from the owner is possible in the following cases:

foreclosure within the framework of enforcement proceedings, for example, in case of large credit debt;
seizure of land due to its improper use or non-use for its intended purpose, for example, if construction has not started on a site for individual housing construction within 3 years;
seizure of land for state and municipal needs, for example, for the construction of highways or power lines;
confiscation by court verdict, for example, if real estate was acquired by criminal means;
requisitions if emergency circumstances arise: natural disaster, man-made disaster, and so on.

Read about other cases of forced seizure in the article “Confiscation of real estate in 2021.”

State alienation

The resolution on the state alienation of land and the real estate located on it is adopted by the authorized federal government agency at the request of the management company. The latter is engaged in the implementation of all activities aimed at implementing the decision on the state seizure of land.

Thus, the management company can, by order of the relevant federal government agency, evaluate the alienated real estate, carry out the required cadastral work, and negotiate with the holders of rights to the alienated real estate. The appraisal report is drawn up by the appraiser on behalf of the authorized government agency that made the decision on alienation.

Confiscation of plots of land for the needs of the state and municipality can be carried out on grounds related to:

fulfillment of obligations provided for by international agreements of the Russian Federation;
construction, restoration of objects of national significance (objects of federal, regional significance) or objects of local significance (if there are no other options for construction, restoration of objects);
other grounds provided for by the federal legislation of Russia.

Alienation of real estate by deed of gift

A deed of gift is an agreement on the alienation of real estate to a relative or other person free of charge (Article 572 of the Civil Code). The donor transfers ownership of the apartment/land or promises to donate this property in the future. At the same time, he does not have the right to demand from the other party a counter-representation (payment for a gift, other thing or service), otherwise the contract will become invalid.

At any time before the transfer of the gift, the recipient has the right to refuse it. But if the refusal caused damage to the donor, he has the right to compensation.

The donor may terminate the contract if the donee makes an attempt on the life and health of himself or close relatives (Article 578 of the Civil Code).

If a promise of a gift in the future has been formalized, but the financial situation of the donor has deteriorated significantly, he has the right to refuse to fulfill the contract (Article 577 of the Civil Code).

There are no special conditions for concluding this type of agreement. It can be drawn up in simple written form without notarization. Only the transfer of rights to real estate is subject to registration.

We invite you to familiarize yourself with the standard gift agreement.