The buyer of real estate under an equity participation agreement, in fact, is only given the right to purchase property in the future, since the residential premises themselves are under construction.
And even after paying in full, receiving the keys to the apartment in the finished building and moving into it, he does not yet become the full owner of the purchased property. This will happen only after state registration of ownership rights to the apartment and receipt of the relevant document. This procedure is preceded by the need for the developer to fulfill certain conditions and prepare a package of relevant documents. Registration of property rights is carried out on the basis of the rules and regulations regulated by the following legal acts: · Federal Law of July 13, 2015 No. 218-FZ “On State Registration of Real Estate”; · partially by the Civil and Housing Codes of the Russian Federation; · Federal Law No. 214-FZ of December 30, 2004 “On participation in shared-equity construction of apartment buildings and other real estate.”
Conditions for registering ownership of an apartment under a shared participation agreement
After completion of construction work, the developer company must perform a number of actions to ensure that buyers are able to register their rights to apartments purchased under an equity participation agreement: · drawing up a protocol on the distribution of residential premises and commercial space (if the building has shops, offices or other non-residential premises); · registration and receipt from the BTI of a technical passport for the constructed building, which indicates the number of floors and layout of the house, its total footage and the footage of each individual apartment and other premises; · signing an act of acceptance and transfer of the property and obtaining permission to put it into operation, issued by the relevant authority; · registration of a residential building with Rosreestr; · assigning him a postal address.
General provisions on the transfer and acceptance certificate
The act of acceptance of an apartment in a new building is a document that indicates the final transfer of rights to housing from the construction company to the shareholder, as well as all property rights to the property and the risk of accidental damage.
Since the execution and issuance of this deed is impossible at the time of conclusion of the contract, and the contract itself does not provide the right to transfer ownership, the transfer deed is separated into a separate deed document.
This document contains general technical information about the property being transferred, its address, information about the fulfillment of obligations by the parties, signatures of the developer and the shareholder.
Features of registering ownership of an apartment in a new building
In relations with the developer at the stage of shareholders taking ownership rights, two scenarios are possible: · the construction company assists buyers in collecting the necessary documents to register their ownership rights to housing purchased from it under equity participation agreements; · it interferes with them or is inactive in the decision this issue. In the first case, registration of property is carried out in accordance with the general procedure, in the second - through the court. After putting a residential building into operation, the developer transfers the apartments to shareholders. This happens in the presence of both parties to the contract by inspecting the residential premises, checking the operation of all communications, signing the acceptance certificate and handing over the keys to the apartment to the owner, who must subsequently receive a cadastral passport for it with a plan diagram. Since January 2013, the cadastral registration of an apartment building by the developer is carried out simultaneously with each room in it. In this regard, shareholders themselves no longer need to order a cadastral passport when registering property rights. But, often, the developer, for various reasons or for no reason, delays the registration of a cadastral passport for the finished object. In this case, apartment owners who are interested in registering their property rights as quickly as possible are forced to first order technical plans for residential premises from the BTI, and then, together with applications, transfer deeds and share participation agreements, contact Rosreestr to register apartments on registration and issuance of cadastral passports. If the housing was purchased on credit, then it is necessary to prepare a mortgage document or a loan agreement, and if it was purchased for a minor, then obtain permission from the guardianship and trusteeship authority.
Documents for registering ownership of an apartment according to DDU
According to paragraph 11 of Art. 48 Federal Law dated July 13, 2015 No. 218-FZ, to register ownership of an apartment acquired under a shared participation agreement, the following documents are required: · passport of a citizen participating in shared construction; · agreement of shared participation in the construction of a residential building; · an apartment acceptance certificate or other document confirming its transfer to the participant; · permission to put into operation the apartment building in which the apartment is located; · receipt confirming payment of the state duty. In private cases, the following may be required: · a birth certificate if housing is registered for a minor child; · a mortgage on an apartment or a loan agreement (if housing is purchased on credit); · power of attorney to represent the interests of the shareholder, certified by a notary; · notarized consent of the spouse to conclude a share participation agreement by the other.
What should the transfer deed look like and what information should it contain?
Since the document does not have any special requirements from the legislation of the Russian Federation for its execution, the act of acceptance and transfer of an apartment from the developer to the shareholder must contain the following mandatory information:
- Title of the document;
- date and place of signature;
- official data of the parties to the contract;
- residence addresses/locations of the parties;
- data on the share participation agreement (date number of its conclusion);
- general characteristics of the alienated housing (square footage, condition, compliance of the premises with SNiP, availability of fine finishing, etc.);
- the subject of the document itself;
- signatures and details of the parties.
The above list is necessary, but this does not make it exhaustive. The parties have the right, due to the current situation or personal reasons, to add additional clauses to the document that have semantic meaning.
In such cases, an addition is drawn up - an inspection sheet. This document also has a specific list of points that must be documented. Thus, the following must be indicated:
Rice. 2. Photo of the inspection sheet for preschool education
- an accurate description of all defects found during the inspection;
- the period during which the seller undertakes to eliminate these violations;
- the type of liability is indicated in the event of the company’s failure to fulfill its obligations to eliminate identified deficiencies;
- passport data and details of the parties;
- sending as proof of acceptance documentation.
As in previous cases, the form of a unilateral act is not established by law. It is drawn up in the same form as bilateral, only with reference to Part 6 of Art. 8 FZ-214 and the circumstances contributing to the preparation of this document. The act states that the notification of completion of construction sent in accordance with paragraph 4 of Art. 8 FZ-214, the second party received it, but did not appear to sign the transfer deed within the prescribed period and continued to evade signing it for two months. Further information is indicated that from the moment of drawing up the specified act, the developer has fulfilled all the requirements stipulated by the DDU, and the property has been transferred to the buyer in a proper manner.
Before signing the transfer act, it is necessary to clarify whether the construction project has been put into operation by a special state commission and what documents are available confirming this fact.
The procedure for registering ownership of an apartment under a shared participation agreement
Ownership of housing acquired under a shared participation agreement can be registered in two ways: 1. entrust registration to the development company; 2. handle the registration personally. In the first case, this service is paid; you will also need to pay at the notary’s office for the execution of a power of attorney in the name of the construction company’s lawyer. It is quite possible that the registration procedure will take much longer than if you contact the registration service yourself. If the shareholder decides to engage in state registration of property rights on his own, then for this he needs to contact directly the Rosreestr or the MFC (multifunctional center). The registration procedures are identical. Documents are accepted in the presence of all apartment owners and a representative of the construction company - the developer. First, the registrar fills out an application for registration, which includes data identifying all owners of the property, the address of its location and technical characteristics, as well as a list of documents submitted for registration of property rights. After which the application is signed by the applicant or applicants, if there are several of them. A separate application is also filled out by the seller of the property, in this case, the developer’s representative. When accepting documents for registration of property rights, the registrar issues a receipt of their acceptance, which indicates the date of registration of the corresponding right. At the appointed time or at any other time after this date, the homeowners are returned their copy of the share participation agreement with the registration inscription and the apartment acceptance certificate. From this moment on, the former shareholders become the full owners of the acquired property with the right to dispose of it and perform any non-illegal actions.
Technical errors in the transfer deed
Current practice shows that, despite the simplicity of drawing up the transfer and acceptance certificate, citizens make many, sometimes insignificant, at first glance, mistakes and do not pay attention to many of the developers’ tricks.
- does not fit . This error allows the construction organization to enter any date that is favorable to it at its discretion. As a result, the citizen loses the right to go to court to demand the collection of a penalty. The only correct option is to indicate the actual date of acceptance of the object.
- The document incorrectly indicates information essential for registration . If the act contains a typo in precisely the data that the state registration authority will enter into the registration certificate, this is considered a fairly critical typo and the registering authority will most likely suspend registration until these circumstances are clarified. This can be corrected if the parties enter into an additional agreement, justifying this by the fact that due to errors made, the document is presented in the given wording.
The acceptance certificate must be drawn up on one sheet; if the act is drawn up on two sheets, it must be stitched and numbered, then the construction organization will not have the opportunity to replace sheets or report a “lost” page.
Deadline for registering ownership of an apartment under a shared participation agreement
The legislation establishes a 7-day period (clause 1 of Article 16 of Federal Law No. 218), during which employees of the registration service are required to register ownership of any real estate, including an apartment acquired under an equity participation agreement. Within the specified period, the following actions are carried out in general order: · acceptance of an application for state registration of rights; · legal examination of submitted documents, · verification of their authenticity, the legality of this transaction, · identification or exclusion of circumstances that impede the registration of ownership rights to a given property; · entering the necessary information into the Unified State Register of Real Estate (USRN); · issuance of documents with a registration inscription on an agreement or other title deed (in the future, if necessary, the owner can receive an extract from the Unified State Register of Real Estate for his property, which is issued when applying to Rosreestr or the MFC from the beginning of 2021). It is important to know that the period is calculated in working days and is counted from the day the documents are submitted for registration. Often this deadline is not met, and this may be due to the verification of the documents provided, or depend on the number of owners of the purchased property, the availability of a mortgage loan and other factors. In this case, in order to comply with the legality and validity of such violations of the deadline in paragraph 2 of Art. 26 Federal Law dated July 13, 2015 No. 218-FZ provides for a 3-month period for suspending the registration of rights to eliminate the reasons.
The procedure for transferring a shared construction project under Law 214-FZ
The procedure for transferring shared construction objects is described in Art. 8 of Federal Law No. 214-FZ. A month before the deadline established in the contract, the shareholder must be notified of the readiness of the object for transfer and the need to accept it. Having received the message, the citizen must accept the object at the specified time, and if it is not specified, then within 7 working days from the date of receipt of the letter.
The transfer of the object is carried out on the basis of a transfer deed. If the equity holder discovers that the property does not comply with the requirements of Part 1 of Art. 7 of Law No. 214-FZ, he has the right to demand the drawing up of a separate document about this and after that refuse to sign the act until the shortcomings are eliminated.
If a citizen refuses to accept the property for unjustified reasons, two months after the deadline, the developer has the right to draw up a unilateral transfer act.
From the moment the parties sign the transfer deed, the apartment is considered transferred to the shareholder. From this day on, all responsibilities for it, including payment of utilities, are assigned to its owner.
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State duty when registering ownership of an apartment under a shared participation agreement
The basic rule that every applicant needs to know when applying to the registration service is that the state fee is paid before submitting an application for registration of ownership of an apartment, otherwise the registrar will not accept the application with the remaining documents. Only if the application is submitted electronically, the fee is paid after its submission, but before the documents are accepted for consideration. The state duty is charged in accordance with the Tax Code of the Russian Federation. Its size is determined by Art. 333.33 of the Tax Code of the Russian Federation and for registering ownership of an apartment acquired by an individual under an agreement for participation in shared construction of a residential building is 2,000 rubles. If there are several future owners, then the fee is divided between them in proportion to their share in the ownership of the apartment.
When should you not sign a document?
You cannot sign the acceptance certificate before the house is put into operation. Before this, it is considered an unfinished construction project, and any demands from the developer to sign documents are illegal.
If defects are discovered upon acceptance of the object, the equity holder decides whether it is worth accepting it in this condition. Usually the act is not signed until the deficiencies are eliminated.
This is important to know: What legally applies to outbuildings
If the shareholder decides to accept an apartment with fatal defects and receive compensation for them, they are included in the deed. A citizen can refuse an apartment and terminate the contract; in this case, the act is not signed.
If you are in doubt about what decision to make, consult with a lawyer.
Inspection
Done with a representative of the developer and an equity participant. All shortcomings are recorded, but we can only talk about those types of work, the presence of which was prescribed in the DDU.
If there are shortcomings, the developer can solve the problem with several options:
- Complete your omissions.
- Reduce the value of the transferred real estate by an amount that corresponds to the identified deficiencies.
- Pay the cost of unfinished construction work.
These obligations of the developer are fixed by law Federal Law No. 14.
In some cases, it is worth signing documents if the inspection sheet accurately indicates the dates for correcting the problems, or the developer has compensated for material losses. The fact is that some shortcomings allow you to sign the acceptance certificate unilaterally after some time.
Most often you need to check:
presence and operation of ventilation;
- all electrical supply elements;
- how glazing of balconies, loggias, windows and doors is carried out;
- treatment of all surfaces;
- how sewerage and water supply work;
- If possible, check the heating.
The inspection sheet is drawn up in 2 copies so that the developer corrects them before signing (or after, according to the terms of the transaction) this act or pays their cost so that the client can carry out the work independently for these funds.
But most often, the act is signed when all the obligations of the parties have been fulfilled, the payment has been made in full, and they have no claims against each other on the merits of the agreement.
Quality of the shared construction project
According to Art. 7 of the Federal Law “On Participation in Shared Construction of Apartment Buildings and Other Real Estate Objects...” the quality of the transferred shared construction object must correspond, first of all, to:
- terms of the concluded agreement;
- requirements of technical regulations;
- project documentation;
- town planning regulations.
Some shortcomings in the construction of an apartment building, and in particular apartments, are not immediately detected (for example, a leak in communications, the technical condition does not meet the requirements).
In connection with this law, the following warranty periods are established:
- For accepted residential premises - at least 5 years . It must be specified in the share participation agreement and is calculated from the date of transfer of the object .
- Before its expiration, the shareholder has the right to make claims against the developer to eliminate the shortcomings.
