Everything that spouses acquire in marriage is their common property, regardless of who they are all registered to. When selling an apartment, which is joint property, but according to the documents belongs to one of the spouses, a notarial permission of the second to make a transaction is required. Similarly, we can assume that the consent of the spouse to purchase an apartment is also required. That is, the funds that are used by the buyer are also considered common family capital, and spouses can dispose of them only by agreement with each other.
What are the contradictions in the law?
First of all, attention should be paid to Article 35 of the Family Code. It states that if one spouse disposes of the property acquired jointly, then the consent of the other is taken into account by default. But, besides this, any transaction for the purchase of real estate can be invalidated when one of the spouses disagrees, or there is evidence that the second was aware of the disagreement of the first, but this fact was ignored by him.
So, literally interpreted Article 35 of the IC of the Russian Federation, you can get the following: when entering into a transaction, the buyer has the full right not to provide the seller with a notarized consent.
The next point in this article assumes a completely opposite meaning. That is, it states that in transactions related to the disposal of real estate, as well as transactions that require state registration and notarization, legally certified consent of the spouse must be present to purchase an apartment. Otherwise, if this fact was ignored, the spouse receives the right to demand recognition of the transaction invalid through the court. This right can be used within one year from the moment the second spouse found out or should have known that the transaction was completed.
Disputes with consent
It turns out that the consent of the spouse from the first paragraph is very conditional. If you dig even deeper and try to analyze the situation in more detail, then several controversial points arise.
- Notarial certification. Since 2000, it is not at all necessary that the purchase of real estate be carried out through a notary public.
- State registration. According to new changes in the legislation, from March 1, 2013 a purchase and sale transaction can be considered valid without its registration. It automatically takes effect from the moment of signing the contract by both parties. But real estate is subject to registration. Therefore, according to this logic, the fact of acquiring an apartment does not have to be registered.
- The concept of disposal of real estate. It is impossible to dispose of that which does not yet belong to man. For example, when selling an apartment, the owner has certain rights to it, and, accordingly, he can use the property at his discretion. But if the acquisition of real estate is still only in the plans, then the buyer will be able to dispose of only his own funds, but not the apartment itself.
In other words, the truth will always be on the side of the one who is best able to navigate in the interpretations of article 35 of the UK. Unfortunately, there is no single algorithm of actions in case of disputes, therefore it is better to get a spouse’s consent to purchase an apartment right away to avoid various problems.
Do I need a notarized consent to purchase an apartment from my spouse for registration?
In fact, in many cases, the consent of the second spouse to purchase an apartment with state registration of the transfer of law is not necessary. But, using the fact of ambiguity of laws, registrars can still put forward a requirement for a spouse's notarized consent to purchase an apartment. Moreover, they necessarily refer to the norms of existing laws.
Do I need to contact a notary?
In order to avoid unjustified expenses of time and nerves, a visit to a notary should nevertheless be. It takes about 1 thousand rubles to get a spouse’s consent to purchase an apartment. Only one spouse can apply to a notary public, who should give his consent to purchase an apartment, and the presence of the one who needs consent is not necessary. Such consent can be drawn up not only for a specific apartment with an address, but also for the purchase of housing at the discretion of the spouse. You must bring a passport and a marriage certificate with you.
Today, even citizens far from the business of realtors know that the housing market is primary and secondary. The purchase of secondary apartments implies that they already had owners. As for the primary market, only new apartments are sold on it.
Advantages of acquiring an apartment in a new building
First of all, this should include a relatively low cost (up to 90 percent of such housing, but already in the secondary market). In addition, the purchase of new apartments is good because the housing will be legally clean in any case, since it has no background: there were no other owners, no transactions were made with it and, accordingly, no one was ever registered on the square . Thus, the buyer becomes the very first owner, and he will not have any problems that may be associated with claims of past owners.
Disadvantages of acquiring an apartment in a new building
The process of registration of ownership takes much longer, because, unlike a simple contract of sale, which can be drawn up and registered in just a couple of days, the transfer contract, which gives ownership of new apartments, can be executed and registered for about a month and a half.
Although very small, there is still a risk of remaining cheated when acquiring an apartment in a house under construction.
Mostly new apartments are located in remote areas where the infrastructure is not very developed and there are no communications.
In addition, in the new apartments there is no decoration, which involves additional costs.
Buying an apartment: instructions for registration
The design of an apartment in a new, under construction or already built house consists of several stages. Let's talk about such a common and profitable option as buying an apartment in a new building with the help of an organization that has received the right to do so from the Moscow government.
Stage One. Arrangement with the company
The purchase of real estate begins with the client contacting the company that interests him and looking at all the apartments that are of interest to him and are available, and then chooses the most suitable one for himself. Further, the company and the buyer enter into an agreement on the provision of realtor services, where the first obligations are assumed registration of an apartment second. The buyer, in turn, pays the organization a certain commission for the provision of services. So, at this stage he receives a contract and a document confirming the payment of a commission (check or receipt). Such an agreement is concluded within one day.
Stage Two. Assignment Agreement
The next step is to sign an agreement on assignment of claim. It is concluded between the buyer and the organization that built the house, simply financed its construction or organized construction work.
Depending on what functions were performed, the organization in the contract may be designated as an investor, customer or contractor. But basically, the Moscow government acts as a party to the agreement, since it is precisely when they issue the resolution that a land plot for construction is allocated.
The scheme here is as follows. The government issues a permit for the construction of a residential building. There is also an investor - a company that finances the work. These organizations conclude the so-called investment contract with the customer, which organizes the construction work. The customer and contractor, in turn, conclude a contract agreement with each other.
All the structures described take an active part in the construction of the house, and they have every right to a certain part of the finished apartments, and, accordingly, can assign the rights to them to other persons, that is, the buyers of the apartment. However, these structures themselves do not select buyers and do not sell apartments. The parties enter into a contract of commission with a realtor organization, on the basis of which the latter receives the right to sell the apartments. When contacting the organization, the buyer has the right to familiarize himself with this contract, as well as with the investment contract. Further, the procedure for buying an apartment involves signing a contract and settlement with the buyer.
Stage Three. Payment
At the next stage, a full payment is made with the buyer. The funds are transferred to the account of the company, which transfers the rights to the apartment. This stage takes an average of about seven days. The contract of sale in this case is not drawn up, since the apartment is new, and she did not have a landlord.
The right of ownership is executed under a transfer agreement. One side is the buyer, and the other is the municipal housing committee. Other organizations that participated in the construction of the facility are also indicated in the transfer agreement, although they do not act as parties to the agreement.
The employees of a real estate company should prepare a draft contract, and also collect all the necessary documents that formed the basis for the construction of the house where the apartment is located. Documentation is also collected confirming the fact of the transfer of the house into operation. In addition, documents are required that confirm the contractual relations of the investor, customer and contractor, as well as the fulfillment of obligations by each of them.
Stage Four. Municipal Housing Committee
After that, the real estate company passes the draft contract and all the necessary documentation to the Municipal Housing Committee. The latter, in turn, carefully checks all documents, after which the contract is signed by one of the vice-chairmen and puts the appropriate seal. Documents are considered and an agreement is signed within ten days. As soon as this period expires, the documents will be transferred back to the real estate company.
Stage Five. Final
Now, the company’s employees called for signing the future owner of the apartment. Today, all such contracts are subject to notarization. After signing and certification, the contract is transferred for state registration to the committee. In order to undergo this procedure, you must collect the same documents as for signing in the Housing Committee. Basically, the registration of the contract takes a period of one month, after which it will be returned back to the representative of the organization.
When registering, the registration number, the date of its registration and the seal of the Housing Committee are put on the contract. In addition to the contract of transfer, which the buyer receives in his hands, he must also have a certificate of ownership of the housing.These documents are title to the property. This ends the registration of ownership in the new house, and the listed documents are transferred to the buyer of the apartment. As mentioned above, a sales contract will not be needed here, so only the documents received will be sufficient.
