Essential terms of the exchange agreement
Under an exchange agreement, each party undertakes to give ownership of one item to the other party in exchange for another.
An exchange agreement is a transaction the essence of which is the transfer of property. All items delivered under the contract become the property of the receiving party.
One of the subtypes of exchange is barter. This deal is only applicable in foreign trade. To conclude such an agreement, the goods must be of equal value, and one of the parties must have a license.
The main condition of the barter agreement is the availability of the item. Other conditions become significant if specified in the contract.
Any item free of encumbrances can be exchanged. However, a reservation should be made that a party cannot transfer what it does not have the right to dispose of. For example, shares cannot be the subject of an exchange agreement if the person who transfers them is not a member of the company. But products produced at the plant can be exchanged without the consent of the director of the enterprise.
If the exchange is for items of unequal value, then one of the parties (the one who received more) will have to make up the difference.
In its content, the exchange agreement is close to the purchase and sale, and therefore the provisions of Chapter 30 of the Civil Code of the Russian Federation can be extended to this transaction.
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A law on the renovation of housing stock in Moscow has been adopted
When residents move from demolished housing, they will be given new apartments in the same area.
If possible, even the neighborhood will remain the same, which will avoid the inconvenience of going to work, kindergartens and schools in the future. This resettlement concept is technically achievable, since the demolition of houses will be carried out gradually.
The essence of renovation is to reduce the number of unsafe houses. Therefore, it is planned to demolish the old houses and build new ones in their place.
Residents of relocating houses contact the Public Headquarters regarding the notarization of contracts providing for the transfer of ownership of an equivalent residential premises if the co-owners of the apartment are minor children. To formalize an exchange agreement, adult owners need a notarized certification that such a transaction will not violate the rights of a minor, and that the guardianship and trusteeship authorities have issued permission to dispose of the child’s property. People ask whether the city can directly pay for the preparation of such a document by a notary, since for some the requested amount to pay up front is significant.
Thus, it is reported that amounts from 20,000 rubles are requested for the certificate. The amount is affected by the number of minor owners, the size of the share in the housing, the area of the apartment, and its cadastral value.
In this regard, members of the Public Headquarters sent a request to the Department of Urban Development Policy of the city of Moscow, which is the curator of the Renovation Program.
As follows from the response of the Department of Urban Policy, payment for notary services cannot be made by the government authority, based on the legislation of the Russian Federation. But (!) the city, represented by the Moscow City Property Department, then compensates the moving persons for the amount spent for notary services.
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If there is a difference in price, then one of the parties makes an additional payment.
Barter is not limited to the exchange for similar housing - the subject of the transaction can be any movable and immovable property, with the exception of money. That is, an apartment can be exchanged, for example, for a car.
As for the opportunity to exchange your apartment for an apartment with or without additional payment, it is provided only on the secondary housing market. And in order to carry out an exchange transaction, you first need to find the owner of the apartment who wants to exchange it for another, of equal value or with an additional payment.
Next, the owners enter into an agreement and re-register the property in Rosreestr.
The peculiarity of such a transaction is that each participant is a seller and a buyer at the same time. Thus, it is similar to a dual sale and purchase agreement, and the rules of Chapter 30 of the Civil Code of the Russian Federation apply to it. As for the agreement itself, it must be drawn up only in writing, since it is the basis for registering property rights.
Sample exchange agreement
An important point for apartment owners is that there are 2 types of apartment barter: barter and exchange.
In this case, the bank will not have the right to demand early repayment of the loan.
The owner of residential premises in an apartment building subject to renovation has the right, on the basis of a written application, to receive preliminary and equivalent compensation in cash for the vacated residential premises. The amount of such compensation and the procedure for its provision are determined in accordance with federal legislation, including legislation on valuation activities.
Other terms of the exchange agreement
The barter agreement is usually concluded in writing. You can make a transaction orally in the following cases:
- the amount of the contract between individuals does not exceed 10,000 rubles;
- the contract is executed upon conclusion.
As for the content of the barter agreement, the rights of one party correspond to the rights of the other. Moreover, if a citizen does not fulfill his obligations to transfer the goods, then the party that fulfilled its obligations has the right to demand termination of the contract and compensation for losses.
The legislator does not establish special requirements for the subjects of the barter agreement. However, if we assume that under the terms of the transaction an item must be transferred, then the parties must have a property right to this item (for example, ownership). That is, the subject composition of the transaction can consist of both individuals and legal entities, as well as constituent entities of the Russian Federation.
The Civil Code of the Russian Federation prescribes the condition that all costs under the barter agreement fall on the party performing this or that action. However, if we are talking, for example, about state registration in Rosreestr, then both parties pay the fee.
As for the term clause in the barter agreement, as a general rule things must be transferred at the same time. But if this is not the case, the document usually specifies the period within which the party must receive the item. It is from this time that the period will begin when the counterparty has not fulfilled its obligations, which means it must compensate the losses of the other party.
Apartment exchange agreement in private cases
In general, several positive qualities are attributed to these legal relationships, which significantly simplify the process of re-registration of property between citizens. These include :
- A simplified method of mutual settlements. Especially when it comes to objects of equal value;
- No changes in tax deductions. Since the tax rate is calculated based on the standard parameters of a citizen’s property;
- The seller should not worry too much about the transferred funds, since there will either be none or there will be a relatively small additional payment.
The only negative point may arise from the inability to take advantage of the tax deduction that is present when concluding a purchase and sale transaction.
There are also certain situations where the general provisions on the barter agreement apply with some exceptions. Among them are :
- Conducting a transaction with subsequent payment;
- Participation in legal relations of this kind by minors.
In order to avoid violations during transactions, both options should be considered in more detail.
With surcharge
If one of the residential premises turns out to be large in value, the difference in price is returned by the person whose property it is acquired. This is determined by comparing offers from sellers and buyers. In this case, an additional agreement is drawn up, where the amount of each property is stated, and, accordingly, the difference is calculated .
Land exchange agreement
The exchange agreement itself (Civil Code of the Russian Federation, Chapter 31) of a land plot is not subject to state registration in Rosreestr, however, the transfer of ownership of the plot is mandatory.
In addition, it is assumed that the exchanged items are equivalent in value. If this is not the case, then one of the parties pays a certain amount specified in the contract.
In addition to this condition, it is recommended to include several more important provisions in the land exchange agreement:
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- identification data of the site (cadastral number, its area, location, etc.);
- intended purpose of the land;
- real estate objects located on the site.
In most cases, the parties attach graphic plans or drawings to the exchange agreement, which indicate where the site is located.
Please note that easements may be established on the transferred plot. Check with the owner about them, or even better, write this condition in the exchange agreement.
Vehicle exchange agreement
A car exchange agreement is used when:
- the car owner cannot sell the vehicle for a long time;
- the trade-in scheme is used - exchanging an old car for a new one;
- It is necessary to exchange vehicles (one year old) without time difference.
A trade-in agreement is one of the easiest ways to get a new car. Its preparation and subsequent registration of the right will not take much time, and the owner will receive a new vehicle, as they say, without leaving the cash register.
The algorithm of actions is as follows:
- a car exchange agreement is drawn up and signed;
- The ownership of the vehicle is registered with the State Traffic Safety Inspectorate.
The legislator does not require notarization of the transaction, only at the request of the parties.
If an additional payment is made under the exchange agreement, this must be indicated in the document.
Essence
The exchange agreement is regulated by Article 567 of the Civil Code of the Russian Federation, which states that under this agreement, each of the parties, upon its conclusion, undertakes the obligation to transfer property to a second party. Such an agreement can be concluded using written or oral forms; the latter option is applicable if the transaction is executed upon its conclusion, or if the cost is less than 10 minimum wages.
The barter agreement can be characterized as mutual, compensated and consensual, therefore it is divided into:
- equal exchange (barter);
- exchange with additional payment if the cost of one of the real estate items exceeds.
This type of agreement is more optimal than a purchase and sale agreement. If there is no financial opportunity to purchase any property (in this case, real estate), a person can make an equivalent exchange or with an additional payment, and the costs will be much less . Of course, having less bureaucracy is a definite plus: it is much easier to draw up one agreement form (exchange agreement) than two (purchase and sale agreements).
As an example, we can consider the situation of exchanging apartments of equal value between individuals.
Let’s say citizen A. wants to purchase the apartment of citizen B., but does not have much capital, and is not particularly versed in the issues of concluding contracts. Citizen A. has the opportunity to sell the apartment he owns and then purchase the desired property, or contact a qualified lawyer to assist him in drawing up two sales contracts, which is irrational.
At the same time, citizen B. is not against the exchange without charging any additional payment. Thus, citizen A. and citizen B. can draw up an exchange agreement and simplify this transaction. However, it is important to comply with all the terms of this agreement, which are described below.
