Exchange of shares with a minor child - 330 tips from lawyers and lawyers

The concept of an agreement for the exchange of shares of an apartment

Peculiarities of registration between close relatives and with a minor
The need to exchange movable or immovable property appears quite often in our lives. This is convenient, since you do not need to draw up a purchase and sale agreement and pay a large tax. As for the exchange of shares of an apartment between close relatives, there are a number of nuances and features that we will consider in the article. We also focus on situations where a transaction is concluded with the participation of minors.

Documents required to complete the transaction

Based on the fact that legally related exchange is equated to a purchase and sale agreement (and is often carried out through the latter), the list of necessary documents required is the same as for a sale, namely:

A title document is a document that confirms ownership. For example, sales and purchase agreements, exchanges, donations, documents that owners receive when privatizing an apartment, etc.
Certificate of registration of ownership of the apartment in Rosreestr.
Cadastral passport for the apartment. Issued by the Bureau of Technical Inventory (BTI). There you can also get a certificate of the appraised value of your home. It is necessary when notarizing a contract.
Documents received at the Unified Information and Settlement Center: extract from the house register, copy of the financial personal account. Some EIRCs issue a “single housing document” instead (in small towns you should contact the passport office at the location of the property).
Passports of the parties to the transaction.
Certificate of registration of residents in the apartment (so-called Form 9).
Certificate of marriage or divorce.

Before concluding any transactions related to real estate, it is necessary to obtain the consent of the second spouse, even if at the time of the exchange the marriage has already been dissolved and three years have not passed since the dissolution (if the apartment was purchased during the marriage). It takes the form of a written statement, which is necessary not only when alienating, but also when purchasing real estate. The consent of the spouse is not required only when exchanging an apartment that was privatized by one of the spouses, received as a gift or by inheritance. The same applies to spouses who have entered into a marriage contract if it provides for sole ownership of the real estate that is the subject of the transaction.

If the participants in the privatization were minors, then when concluding the transaction they will need their birth certificates, as well as permission from the guardianship authorities.

After the exchange of apartments is notarized, the relatives are given a copy of the agreement; the transfer of ownership must be registered with the Federal Registration Service (Rosreestr), after which each of them has ownership rights. As practice shows, in order to avoid various misunderstandings and disputes, it is advisable to indicate in the contract the real value of the real estate being exchanged, even if such a transaction is concluded between relatives.

Barter agreement: concept

An exchange agreement is an act that confirms the completion of a bilateral transaction on the basis of legislation. Since an agreement for the exchange of an apartment between close relatives assumes that the owner of a share of real estate and those who want to receive this share in exchange for something are both sellers and buyers, rights and obligations arise for the two parties.

Today, an exchange agreement between close relatives is very popular, as it provides for more favorable taxation. When selling an apartment, a tax of 13% of its appraised value is paid by each party, and in the case of me - a one-time tax.

How to properly arrange the exchange of shares in apartments between relatives

I read that 14, then the parent takes full part in the transaction. It is precisely stated in the contract that in exchange he transfers 1/4, and he retains 3/4. So that he has a different testimony. Ownership is only shared, joint ownership is impossible here. The cost is indicated in any case, but additional payments will not be indicated either. The guardianship should have compared the cost. The child’s 1/4 must be lower or equal in value to the relative’s 1/4. What kind of relationship do they have? After all, not all relatives have the right to enter into transactions with children, except for donations. If it’s close, then it’s not worth it at all, since the guardianship has given consent

3. A guardian, trustee, their spouses and close relatives do not have the right to enter into transactions with the ward, with the exception of transferring property to the ward as a gift or for free use, as well as to represent the ward when concluding transactions or conducting legal cases between the ward and the spouse of the guardian or trustee and their close relatives.

We recommend reading: Payments upon the Birth of a Child to an Unemployed Mother in 2020

The legislative framework

There is no separate law that would completely regulate this procedure, but there are a number of articles in different legislative acts.

Article 567 of the Civil Code of the Russian Federation states that each party undertakes the obligation to place one product at the disposal of the other party. Each party is recognized as both a seller, obliging to sell, and a buyer, obliging to accept.
Article 31 of the Civil Code of the Russian Federation. Explains the exchange procedure: if the exchanged property has the same value, the agreement is considered equal, if different, it is unequal and involves additional payment by one of the parties. The transaction is carried out only with real estate objects; it is impossible to exchange a share of an apartment for money, this will already be a purchase and sale agreement.
Information letter dated September 24, 2002, No. 69. Explains the nuances regarding the number and names of objects subject to exchange.

Practice shows that the presence of many nuances that usually arise during such agreements requires recourse to real contracts already enshrined in court. You can find information on the official website of the district court.

Housing Consultant

As part of the agreement, any property rights that are not subject to encumbrances imposed by a court decision or order by other government bodies can be transferred. The parties become both seller and buyer at the same time, taking on a complex set of responsibilities. A special case in the law is considered to be when an apartment is transferred from one close relative to another. view and download a sample document here: [Sample exchange agreement].

We recommend reading: When to Submit 3 Personal Income Taxes for 2020

At the same time, the brothers did not trust each other enough to make a gift, which is not taxable, even if the brothers live in another country. In this case, the Tax Code allows for the establishment of resident status after 183 days of residence in Russia, which the parties took advantage of, paying each 13% , taking into account a deduction of 1,000,000 rubles .

Advantages of drawing up an exchange agreement

The main advantage of the deal is reduced tax. After all, during the purchase and sale, each party pays 13% mandatory tax on the transaction. An exchange agreement between relatives involves a one-time payment of tax, which significantly saves the budget of each party.

The second advantage is a simplified procedure for establishing a new ownership right, which takes much less time to complete.

The third advantage is the functionality of the act itself. There is no official structure of the contract; the parties can specify in it all the nuances for maximum benefit - from additional payments to responsibilities.

How to give up a share in an apartment in favor of relatives: step-by-step instructions

The former owner needs to visit the passport office to deregister, as well as to register at a new address. You must move out of your home within a certain period of time, taking your belongings. The new owner can dispose of the property at his own discretion, and this should not be interfered with by the former owner. The situation is slightly different when giving up a share during privatization. Then the person retains the right to live in the apartment. He cannot be registered against his will, including by court decision. Even if the property is sold, this does not change the right of residence.

We recommend reading: Is it Possible to Not Include the Father on the Birth Certificate?

And how to give up a share in an apartment in favor of a relative? The procedure is performed in a standard way. If property is transferred to close relatives, for example, to a parent, then the recipient does not have to pay tax on the income. In other cases, it is necessary to contribute 13% of the cadastral value of the share to the budget. This is a personal income tax. According to the law (Article 575 of the Civil Code of the Russian Federation), property cannot be given on behalf of minors.

Form for drawing up an agreement for the exchange of shares of an apartment

The exchange agreement is drawn up on a white sheet of A4 paper in printed or written form. The sheet should be clean, smooth, not wrinkled. You need to use black or blue ink; in the case of a printed version, standard font and text size, without indents, additional characters or color highlights. The document is notarized, a specialist checks the correctness of the agreement from a legal point of view, and also finds out all the subtleties of the exchange, for example, to what extent the parties’ share is equivalent.

Standard information about the exchange agreement:

passport details of the parties involved in the agreement;
an accurate description of the objects of exchange;
the amount of the difference in the cost of objects, if the contract provides for it;
the procedure for carrying out the exchange procedure itself is indicated: the sequence of releasing square meters, extract, registration, etc.;
special conditions, life situations, force majeure circumstances (if this happens) are listed;
responsibility of the parties for fulfilling the terms of the agreement;
actions in the event of force majeure, etc.

The structure looks like this: title - date and place of preparation - names of the parties - subject of the agreement - exchange procedure - responsibility of the parties - special provisions - conclusions.

The more detailed the exchange agreement is drawn up, the fewer problems and nuances will arise after its registration, in practice. All data on the share of real estate must be entered into the act: size, location, cadastral number, who it is registered with, etc.

Is it possible and how to donate an apartment if another person or a minor child is registered in it?

The rights to the apartment are transferred to the recipient immediately after registration in Rosreestr and delivery of the corresponding supporting paper (if, when drawing up the deed of gift, certain factors for the document to come into force were not indicated, for example, adults, marriage registration).

certificates of the right to dispose of the donated object;
technical passport for the object of donation;
personal documents of the parties that will be indicated in the deed of gift as the donor and the donee, people registered in the apartment;
power of attorney of a person representing the interests of one of the parties to the transaction;

26 Jan 2020 etolaw 656
Share this post

Pension size for group 1 in January 2020
What Documents Are Needed for a One-time Child Birth Benefit 2020
Financial assistance for the birth of a child from the employer 50 thousand rubles
Policemen Calculate Personal Income Tax

Registration procedure

The drawn up agreement for the exchange of shares in apartments between relatives is not yet a final document authorizing the transaction. Participants must simultaneously contact Rosreestr and submit applications (a sample is offered by the institution). The registrar, along with the application, accepts a receipt for payment of the state fee. 30 days are given to verify the act. If any discrepancies or questions arise, the contract may be referred to the court for review.

Situations when a transaction is invalidated

There are a number of circumstances under which an exchange may be declared invalid by a court:

A deliberately false transaction with the aim of concealing income.
Lack of permission from the guardianship and trusteeship authorities.
Participation of an incapacitated person or an elderly person.
The emergence of new circumstances.

Requirements for related apartment exchanges

A related exchange of apartments involves the conclusion of an exchange agreement. As previously noted, the contract must be drawn up in writing if its price exceeds 10 thousand rubles.

The contract must also include the following information:

The name of the agreement, reflecting the subject of the transaction;
Information about the parties to the transaction;
Rights and obligations of the parties when making a transaction;
Liability for non-compliance with the terms of the contract;
Description of the apartments that will be exchanged;
Conditions of exchange and circumstances of obtaining a certificate of ownership of new housing;
The amount of compensation, if provided for by agreement of the parties.

As a rule, barter agreements concluded between close relatives are not certified by a notary . This is due to the fact that trust between the parties exists at a high level and additional protection and guarantee of the transaction are ignored.

An exchange agreement between relatives is not subject to mandatory state registration. The parties to the transaction apply to Rosreestr only to register the transfer of ownership of the property.

In addition, the transaction must be reported to the tax authorities. Apartment exchanges are subject to taxes.

What documents are needed for exchange?

In addition to drawing up the exchange agreement itself, the parties at all stages of the transaction need to collect an impressive package of documents accompanying the transaction.

In particular, the parties must have:

A statement from each party to the transaction indicating a link to the exchange agreement;
Passports of the parties to the transaction;
A concluded exchange agreement signed by both parties;
Documents for property certifying its belonging to a particular entity: certificates of inheritance, papers confirming privatization;
Cadastral passport of apartments;
Receipts for payment of state duty in the amount of two pieces from each of the parties to the transaction;
Extracts from the real estate register confirming the absence of encumbrances;
Permits for the transaction from third parties who have voting rights.

When property belonging to both spouses is transferred, the consent of one of them to complete a transaction to which the other is a party is required.

When a transaction involves minors, it is required to obtain permission for the transaction from the guardianship and trusteeship authorities. This is necessary for guardianship to ensure that there are no violations of the rights of minors.

How to arrange a related exchange in 2020?

To formalize the transfer of apartments between relatives, you need to go through many stages of the transaction and several authorities to certify them.

So, the algorithm for registering a related exchange of apartments is as follows:

Conducting an assessment of the cost of housing. This may require the assistance of an independent appraiser. It is necessary to evaluate both the property alienated under the contract and the apartment of which you become the owner. This is necessary in order to justify the use of compensation payments in the event of a discrepancy in the value of the exchanged property.
Preparing the apartment for sale. To do this, the owner needs to pay off all existing debts and remove the encumbrance from the property.
Contact the BTI to issue a technical passport.
Conclude an exchange agreement between the parties in accordance with all the rules of civil law.
Carry out the transfer of housing on the basis of the acceptance certificate.
Apply for state registration through Rosreestr. To do this, you need to submit applications, copies of the contract and other necessary documents.
Apply for a BTI passport for new housing.
Contact the tax office with the necessary package of documents.
Change records in the management company and HOA, change cash accounts.

Registration of apartment exchange is possible not only in Rosreestr. Parties have the right to apply for this service to multifunctional centers or to the government services portal.

The registration period for the exchange agreement ranges from 10 to 30 days, depending on the region in which the exchange was made.

Taxation of a transaction: what to pay for an exchange?

It is believed that an exchange agreement is identical in civil law to a purchase and sale agreement. That is why the parties to the transaction are required to pay income tax in the amount of 13%.

Taxes paid may in some cases be waived. There are cases in which the parties are exempt from paying a 13% tax on an exchange agreement.

If citizens are not tax residents of the country, for them the tax on apartment exchange increases to 30%.

Since 2020, sellers of apartments who have owned them for more than 5 years are exempt from paying 13% taxes.

In order to avoid paying taxes, the exchange agreement is often replaced by gift agreements. During the donation procedure, close relatives are exempt from taxation.

However, such castling may have its pitfalls. Thus, challenging and canceling gift transactions is much more difficult and time-consuming than an exchange agreement.

Features and nuances

If you want to carry out the procedure for exchanging shares of apartments, you need to obtain the consent of the remaining owners. It is important to find out in advance how commensurate your share is with the other one offered for exchange. If not, find out the amount of the surcharge. To avoid paying tax, you can register a gift between relatives.

During the process, many nuances can arise. That is why it is important to involve a competent notary in the procedure, who knows all the “pitfalls” in advance and will be able to initially draw up a document that is correct, from a legal point of view. Contact our notary office to protect yourself from unequal transactions and fraud. Ivanov Boris Sergeevich is an experienced specialist who will help you draw up an exchange agreement quickly, legally and on the most favorable terms for you.

Treat your share of property responsibly, because, sadly, the world is full of people who want to deceive you.
Trust not the words of relatives, but the recommendations of an independent specialist - a notary! Make an appointment

Related exchange of a privatized apartment for a non-privatized one or vice versa

It can be carried out if you want to make an exchange between apartments, one of which is owned by the replacement, and the other is non-privatized, that is, the residents live in it under a social tenancy agreement. The process of this type of related exchange is very long, since such exchange is not stipulated separately in the housing legislation of the Russian Federation.

The best solution, in our opinion, would be to first privatize housing rented from the state under a social tenancy agreement, and only after that exchange apartments between relatives, for example, using the procedure for donating residential premises described above.

There is also another tricky way. To do this, you should register a minor family member in a non-privatized apartment, and at the same time deregister him in a privatized apartment. Next, the new tenant needs to enter into a social tenancy agreement with the state, and already at this stage the method of changing the owner of the property using a gift agreement is perfect.