What is the assignment of rights to new housing?
Real estate in a high-rise building under construction can be purchased not only in the standard way through the conclusion of a DPA (share participation agreement), but also through the so-called. assignment - assignment of rights of claim (PPT). Since at the time of concluding such a transaction the apartment does not yet legally exist, we are talking about the transfer of ownership rights to an object that will appear in the future. Thus, the buyer accepts not only the rights of the shareholder, who acts as the seller, but also his obligations. This and much more gives rise to certain risks, however, assignment is often the best way to purchase housing.
Danger No. 7. Surcharge
If there is a debt under the DDU, the developer will collect it from the new shareholder.
“The need for additional payment for DDU may arise in several cases. In the first case, when concluding an assignment agreement, the new shareholder was not convinced that payments under the DDU by the previous shareholder, including a legal entity, especially when he carried out offsets with the developer, were made in full and without violating the payment schedule under the agreement.
In the second case, an additional payment is possible if the area of the shared construction project increases after the house is put into operation and appropriate measurements are taken.
Thirdly, if the price under the contract is not paid in full by the original shareholder, it is necessary to obtain permission to conclude an assignment agreement from the developer,” said Oleg Ostrovsky.
To avoid getting into such a situation, it is better to visit the developer’s office yourself together with the original shareholder and check everything.
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Why is it sometimes beneficial to use assignment?
As a rule, a PPT transaction is relevant for the acquisition of real estate with characteristics that are optimal for the buyer. For example, a family wants to acquire a four-room apartment on a low floor, but the developer has already sold out of such lots because they have been purchased by shareholders or distributed in some other way. In this case, you can turn to an investor who, anticipating an increased demand for such real estate, has previously concluded a contractual agreement with the developer and “stakes out” several four-room apartments on the lower floors. As a result, the family gets what it needs, but, as a rule, at a price higher than the standard one.
Danger No. 6. Matkapital
“If the apartment was bought with the help of maternity capital , but the children were not allocated shares, then the transaction is absolutely contested with all the ensuing unpleasant consequences. As a rule, this is revealed after inspections by the Pension Fund prosecutor's office. To find out this nuance in advance, realtors, as a rule, ask the mother to show the movement of funds for maternity capital in her account on the government services portal. If she refuses, she is sent to the Pension Fund for a certificate stating that maternity capital was not used to purchase the apartment. Also, when concluding an agreement, they indicate a statement about the circumstances, where they write that the funds from maternity capital were not used for, for example, repaying the mortgage,” said Vadim Shabalin.
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Who acts as the seller of the apartment during assignment?
There are three main groups of home sellers through PPPs. The most numerous are the above-mentioned investors who purchase new (under construction) apartments for the purpose of their further resale. These can be either individuals manipulating dozens of apartments or large companies with hundreds of real estate properties in circulation. The second group of sellers under PPP consists of contractors providing services to the developer. The developer pays them in square meters, which are then sold through assignment. The third group includes ordinary people who bought an apartment for themselves, but for some reason were forced to transfer it.
Danger No. 10. Loss of funds
If the contract is terminated, there is a risk of non-refund of money in excess of the contract price.
“You must understand that if a price under an assignment agreement is paid that exceeds the price specified in the agreement for participation in shared construction, upon termination of such an agreement by the new shareholder, he will receive the amount specified in the DDU, and not in the assignment agreement. In addition, various penalties for failure to fulfill obligations by the developer will be calculated based on the original price specified in the DDU,” says Oleg Ostrovsky.
Features of checking the DDU before registering the assignment
If during a normal real estate transaction the title documents are carefully studied, then during the assignment the DDU concluded between the seller and the developer is checked. The DDU must be entered into the Unified State Register of Real Estate, and it must have the stamp “state registration of the agreement has been carried out.” If there is no state registration for housing, you should not purchase it using PPT. The second most important point is the absence of a pledge of rights under the DDU: it is important to make sure that there really is none. If there is a pledge, two types of seals can be found on the agreement: “state registration of the pledge of rights under the DDU has been made” or “state registration of the mortgage has been made.” If there are any, it is better to refuse the deal.
You should also make sure that the seller has paid the developer the entire amount agreed upon in his DDU. Otherwise, the assignment of rights cannot be carried out or this will require the consent of the developer, since not only the rights of the seller are assigned, but also his debts. In addition, you should study the features of the construction of a high-rise building in order to assess the chances of its timely completion. An important point: the lease term of the developer of the land plot on which the new building is being built must be completed later than the scheduled date of its commissioning.
What are the seller’s risks under an assignment agreement?
The seller of rights has the same risk as the seller of an apartment - not receiving money for the assigned right (price for the apartment). And this happens quite often. If the transaction is organized correctly, the risk of losing money is minimal, but it exists and cannot be excluded in principle. When making transactions independently, the risk is very high. The fact is that secure payments can only be made through a safe deposit box or account. Incorrect execution of documents regarding access to a deposit box or account will create an obstacle between the seller and the money, which will depend entirely on the integrity of the buyer.
If you add to this an agreement that is not thought out in terms of content, you can either say goodbye to the money or run after it for a long time.
Other risks include revocation of the bank’s license, or theft of money from a safe deposit box. The risks are quite real, we went through the same thing with our clients. The revocation of the license is compensated by the use of two well-known state banks, but theft is impossible to exclude in these banks. In the locker rental agreements used by banks, there is no provision regarding responsibility for the safety of the contents.
Legal registration of the assignment agreement
The assignment of rights of claim is formalized in much the same way as the purchase of ordinary housing. The agreement undergoes state registration in the Unified State Register of Real Estate, for which its parties submit applications to Rosreestr through the MFC. The PPT agreement itself is attached to them in three copies and the state duty is paid. The complete list of documents required for the transaction is as follows:
- passport or other identification document;
- receipt of payment of state duty;
- DDU entered into the Unified State Register of Real Estate;
- PPT agreement with all amendments;
- consent of the spouse if housing is purchased as joint property;
- consent of the guardianship authority to the PPT, if the participant in the DDU is a minor or incompetent person;
- developer's consent to the PPT, if required.
The PPT agreement form is often provided by the developer, since he is interested in the legally correct execution of the transaction.
Danger No. 5. Marriage relationships
Buyers should pay attention to the marital status of the seller and carefully check both his current and former “half.”
“If the seller purchased an apartment while married, and then got divorced and sold the property, then the ex-wife has the right to half the share in the buyer’s home. To avoid getting into such a situation, you need to take written consent from your spouse for the sale or a statement that the seller was not married,” explains Vadim Shabalin.
The main dangers when buying a home by transfer
The main factor of uncertainty in the assignment of housing is the fact that in this case the buyer assumes not only the rights, but also the obligations of the seller under his DDU. For example, if the latter did not pay the entire agreed amount to the developer, the buyer will have to repay the rest of the debt. That is why lawyers advise buyers to request payment documents certifying financial settlements with the developer. The second most important risk factor is the reliability of the developer, because it may turn out that the PPT deal will be concluded, but the house will not be completed.
When buying housing through PPT, you need to understand that you are acquiring rights of claim that strictly correspond to those specified in the original DDU agreement that the seller entered into with the developer. As a rule, the amount paid by him to the developer is less than that paid to him by the buyer. Thus, if the buyer has litigation with the developer, the base price for determining fines and penalties will be the figure specified in the first DDU agreement.
Who sells apartments on assignment
Apartments on assignment are sold by:
- The developer, if the apartments are previously registered to some third organization.
The scheme is absolutely legal, but requires proper documentation of the developer’s authority to conclude and sign the assignment agreement. The relevant documents for the assignment must also be available. The scheme is used quite often.
- Suppliers and contractors of the developer, investors.
Being independent legal entities, suppliers, contractors and investors can buy any property, including apartments under DDU agreements. If necessary, these organizations can sell purchased apartments without waiting for completion of construction. The sale is formalized by an agreement on the assignment of rights under the DDU.
The scheme is absolutely legal, but requires proper registration, since the sellers are legal entities. Accordingly, the powers of persons who, on behalf of suppliers, contractors and investors, conclude and sign assignment agreements under the DDU must be properly confirmed.
- Real estate agency. They can enter into assignment agreements independently, on the basis of powers of attorney, agency agreements, agency agreements, or organize the sale of apartments in new buildings and prepare documents. In the latter case, the assignment agreement under the DDU is signed by the appropriate person to whom the appropriate powers have been issued.
The scheme is legal, but requires careful verification of documents.
- Individuals are shareholders.
Tax when registering a transfer transaction
Its payment is borne by the seller and amounts to 13% of the transaction size for citizens of the Russian Federation and 30% for non-residents. The fee is calculated on the amount representing the difference between the seller’s income and expenses, so the tax can be minimized by proving the existence of costs for purchasing housing under the DDU. For example, if an apartment was purchased from a developer (at the excavation stage) for 5 million rubles, and was subsequently transferred for 6 million, the seller pays tax on the difference of 1 million rubles. No taxes are imposed on the buyer of an apartment through PPT. Moreover, the costs of purchasing real estate can be used to obtain a tax deduction at the end of the year.
Danger No. 2. “Understatement”
“Underpriced” pose a great danger to individuals .
“A citizen decided to invest money a year ago and bought an apartment, say, for 5 million, and now, when prices have risen, he sells it for 8 million rubles. In most such cases, the seller offers to underestimate the cost and indicate 5 million in the contract, and put 8 million in the cell. When the buyer agrees to such a payment system, then, if something happens, he will never be recognized as a bona fide purchaser. If the seller goes bankrupt, the apartment will be taken into bankruptcy estate, and the buyer will be left with nothing and will not return even the money that was specified in the contract. When the transaction goes through without any “lowering” and the parties have agreed, for example, to divide taxes in half, and strictly non-cash payments are used, then in case of troubles the buyer is recognized as being in good faith and everything ends well for him,” says Vadim Shabalin.
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In addition, recently the tax authorities have begun to monitor suspicious transactions more closely.
Reasons for assignment of rights
The reasons for selling equity participation may be unfavorable for the buyer and may be caused by not very comfortable situations. Common cases are when construction is frozen, standards are not followed, which affects the quality of work, or the developer simply squandered investors' funds and is in a state close to bankruptcy.
Disappointed shareholders assign their claims to other buyers (at a reduced price, of course) in order to save at least the initial payments. The new shareholder finds himself in time trouble. Because I voluntarily got into this unpleasant situation, seduced by the cheap price.
Hence the conclusion - the reasons for the sale are easy to know if you collect information about the property yourself. It’s a good idea to check the Developer’s business reputation, his completed projects, investor reviews, and any data that will help determine the situation.
