Speaking about the features of the sale of residential premises, it should be clarified that the general order of transactions does not change. The action plan and regulation remain the same. Just to the actions of the participants are added nuances.
Transaction participants
The essence of the contract is that the seller agrees to transfer ownership of the dwelling to the buyer, and the buyer accept it. Features of the sale of residential premises relate to apartments, houses, and rooms in apartments and houses.
The parties to the transaction are the owner and acquirer, to whom all rights to the object are transferred. Sometimes there are several owners. Representatives sometimes act on his behalf, acting on the basis of a power of attorney or other grounds. For example, the parents of a child who is not yet 18 years old.
If the owner is a state or a municipality, a body or person authorized to sell the property takes part in the transaction. An exception is the case of housing privatization, where the transfer of property is free of charge.
Features of the sale of residential premises involve the receipt of a notarized consent of the spouse who has the rights to the object.
Power of Attorney Transactions
The registration service carefully checks the transferred contracts and documents for compliance with applicable laws. This fate does not bypass the power of attorney. What do officials pay attention to?
- whether its expiration date has expired;
- whether the person signing the contract has the authority to deal;
- whether other requirements have been met (for example, the package of documents contains the permission of the guardianship authorities for a transaction with the real estate of a child or a legally incompetent person).
The problem is that checking is limited to studying documents, especially those issued by authorities.
If the power of attorney was issued a long time ago and its term has not expired, it would be reasonable to ask the landlord directly whether he still wants to make a deal. It is entirely possible that the power of attorney has been revoked and the fraudster is using it. Handling a power of attorney check with a notary may not work.
If the seller is the heir
The acquisition of property previously received by another person by inheritance is considered a risky business. At any time, heirs may arise demanding their share, and even file a lawsuit in court.
The problem is not only in sufficiently long periods of limitation. The law provides for their restoration.
Similar cases occur with real estate, the rights to which pass through a chain of transactions. The only way to reserve residential property is to prove a fair purchase.
Transaction subject
The subject of the transaction is one of the objects listed above. Features of the sale of residential premises oblige to enter in the document sufficient information to identify the object. Litigation and legislation call information from the state register of rights as sufficient information: cadastral number and the basis for registering the seller’s rights (contract, certificate of inheritance, etc.), date of registration and other characteristics.
If a residential building or part of it is sold, the second party receives the appropriate amount of rights to the land or part thereof. Transactions on the transfer of land can be combined, or two documents are signed simultaneously.
The consequence of a violation of this rule is the recognition of the transaction as not concluded. This means that its basic conditions are not agreed upon, and the document has no legal force: it does not give rise to rights and obligations.
If the item for sale is a room or apartment in an apartment building, the new owner also receives the right to a part of the common property. A disclaimer is illegal.
Description of transaction subject
How are the features of the contract for the sale of housing and the subject of the transaction? The following information is entered into the document:
- the city or town in which it is located;
- address;
- total area;
- number of rooms;
- the presence of balconies and loggias;
- cadastral number.
The apartment may have features that the seller is trying to hide from understandable motives. However, the identification of hidden deficiencies gives the buyer the right to file a claim for damages. If they are so serious that the purchase loses its meaning, the right to terminate the transaction is granted.
Reconstruction or redevelopment must be legalized, otherwise the apartment is sold, so to speak, without them. If the changes are serious, then the owner may be required to bring the object to its original position. Therefore, the acquisition of housing with such defects is fraught with serious difficulties in the future.
If it is proposed to purchase a house in such a state, then its changes are legalized much easier. An application or declaration is submitted and a certificate from the local municipal administration that the property does not go beyond the allotted land, and changes to the property are made to the register of rights.
If land is acquired at the same time
What are the features of the contract for the sale of residential premises with a land plot under it?
In the LC laid the principle of the unity of fate of the land and the property located on it. If the house is transferred, then the land is transferred accordingly.
The lack of paperwork for the plot does not prohibit the owner from selling property. The contract only makes a note on the transfer of land on the same conditions on which it was owned by the seller. An exception is cases of illegal construction on land that is not intended for this or is not at all in the legal use of the seller.
The law prohibits the sale of land without the simultaneous sale of a house located on it.
If the land under the house is leased, then the new owner receives it on a leasehold basis. In this case, the consent of the owner of the land to the transaction is not required.
The law may also provide for exceptions prohibiting the sale of land to certain persons, in this case, leases may be allowed.
The clauses of the agreement on the subject of the transaction indicate the cadastral number and the basis for registration of law.
Third Party Rights
According to the Civil Code of the Russian Federation, the peculiarity of the sale of residential premises is the seller’s obligation to note in the contract all persons retaining the right to reside.
This includes all relatives living with him, spouse or spouse. Former family members are included in the list subject to cohabitation. The law extends their status to persons who do not have a kinship or other connection with the owner, but are instilled by him as family members.
If previously a family member did not participate in the privatization, he retains the right to use the premises.
The basis for the right of residence are: testament, a tenancy agreement, a rent contract with dependents.
The absence of fully executed documents does not mean that no one has rights to housing, except for the owner. The exception is cases in which a violation of formalities is essential (for example, contracts subject to mandatory notary certification).
The text contains the names, patronymics, last names and specific rights of residence in the apartment, and passport data to identify individuals. The provision on this subject is contained in the article on the features of the sale of residential premises.
A separate item is children's rights.If one of the parties to the transaction has minor children who only have the right to reside, and not property, the law requires them to take measures to ensure that their living conditions do not worsen.
Transaction price
The clause is mandatory for the contract of sale. Without it, the transaction is considered not concluded, and its legal meaning is lost. The size of the price is needed not only to protect the rights of participants, but also to calculate the amount of tax.
How is the price determined when selling real estate? The peculiarity of the sale of residential premises in the provision of freedom to the parties is limited only by the ban on transferring housing for a price that does not correspond to the market price. Valuation of the object by cadastral value does not make it possible to save on taxes, the state will oblige to make payments based on market prices in accordance with the practice of the Constitutional Court of the Russian Federation.
If one side proposes a draft contract and the second accepts it, this does not mean automatically accepting the price indicated in the draft.
Nuances of calculation and price indication
When buying an apartment, the cost is indicated both for the apartment itself and for a part of the total property in the residential complex.
If a house with a land plot or a share of a house with a share of a plot is acquired into ownership, the price for each individual object is prescribed.
The amount can be calculated based on the assessment of the unit area, and then the buyer is obliged to pay money for the actually transferred area.
The price is entered into the contract at the same time both in numbers and in words, so that there are no disputes due to errors that may be made in its preparation.
This is not to say that the last paragraph refers only to the features of contracts for the sale of residential premises.
Contract form
The law establishes more stringent requirements for transactions on the sale of real estate and residential premises, in particular, the contract is drawn up in the form of a single document. Failure to comply with the form requirement invalidates the transaction. It is impossible to refer to correspondence as evidence confirming the conclusion of an agreement.
Notarization
In 2015, amendments were made to the legislation on registration of property rights. Some transactions are now concluded with the participation of a notary.
The following cases are included in the list:
- transactions for the sale of a share in the common ownership right, even if the buyer is one of the holders;
- the sale of an apartment by the sole owner who at the time of the transaction was not yet 18 years old;
- sale of a shared property.
The introduction of new provisions does not exclude the obligation to obtain permission for a transaction from guardianship authorities. Unfortunately, the listed features of the sale of residential premises are not taken into account by parents or guardians.
State registration
The law obliges the parties to the transaction to register the transfer of rights to property. A person is considered a full-fledged owner of residential real estate from the moment of registration of the right. Art. 558 on the peculiarities of the sale of residential premises determined the moment of making an entry in the register of rights as the moment of conclusion of the transaction.
If one of the parties refuses to register or evades it, the second party has the right to file a lawsuit in court for forced registration. Thus, it is confirmed that the buyer is the legal owner of the acquired property, despite the lack of registration.
Maternity Transactions
Partial or full use of maternity capital funds for the purchase of housing requires the fulfillment of a number of legislative requirements. Features affect both the formulation of transactions and the procedure for its execution.
In addition, the law sets out a list of requirements for housing purchased in this way. In particular, a number of positions were expressed by the RF Armed Forces in a review of judicial practice on the use of maternity capital.
Finally
We list briefly the features of the sale of residential premises, indicated in 558 Civil Code:
- an essential condition is the transfer of the rights of third parties to the apartment;
- without state registration, the contract is not considered concluded;
- other features are related to the age of the participants in the transaction or their legal capacity.
An amendment was introduced to regulate transactions with economy-class housing by federal law, which has not yet been adopted.