Relinquishment of a share in an apartment in favor of a spouse upon purchase

How to formalize a waiver of a share in an apartment? Legal consultation

You will have to act in almost the same way when it comes to inheritance. A notarized renunciation of a share (in an apartment or other property) under such circumstances is mandatory. However, you can do without registration. To do this you will have to wait six months.

1. Write a gift agreement. It contains information about the donor and the recipient, as well as about the property that is being presented as a gift.
2. Collect the documents necessary for the operation: passports of the parties, donation agreement, technical papers for the apartment, certificates of ownership, receipts for payment of duties (if necessary). Documents proving kinship (if available) will also be useful.
3. Contact a notary with prepared papers. Or you can immediately come to Rosreestr with 3 copies of the agreement.
4. Sign the deed of gift.
5. Issue a certificate of ownership in Rosreestr. If citizens acted through a notary, then the authorized person will issue them certified copies of the gift agreement.

Buying an apartment during marriage, refusal of the spouse to share

Each spouse can donate their share without notifying the other. In case of divorce, everyone remains with their share. Refusal of an apartment in common ownership between married spouses is the responsibility of the spouses during the marriage and (or) in the event of its dissolution. Article 41. Conclusion of a marriage contract [Family Code of the Russian Federation] 1. A marriage contract can be concluded both before the state registration of marriage, and at any time during the marriage. A marriage contract concluded before the state registration of the marriage comes into force from the date of state registration. How to divide an apartment that is in shared ownership during a divorce According to clause 1 of Art. 245 of the Civil Code of the Russian Federation, the division of joint property into shares occurs equally between all owners.

In this article, I will consider the main points that allow you to understand what norms of the law to follow, possible options for registering ownership and purchasing housing, both during marriage and before its official registration. How to prove your right to an apartment and prevent it from passing into the possession of your ex-spouse. Contents of the article ○ What the law says. ○ Buying a home while married.

Can a spouse write a waiver of an apartment purchased during marriage?

A prenuptial agreement can record the renunciation of property only during the period the parties are in a marital relationship (after their termination, a marriage contract cannot be concluded), and it must be certified by a notary. It is possible that it will be signed by the parties before the marriage, but it will still come into force only after the marriage is registered. For example, a marriage contract can provide that an apartment (already owned jointly or which the spouses plan to purchase in the future) will become the personal property of one of them. Thus, the other spouse actually gives up this apartment. The agreement can be concluded by both married spouses and former spouses between whom the marriage has ended. This agreement can only concern the property that has already accumulated in the marriage at the time of its conclusion.

If the court is satisfied that this agreement does not violate the rights of either spouse, it will approve it by its decision. Please keep this in mind! If one of the spouses renounces the common property, thus expecting to renounce the common debts, such a renunciation will not be legal. Both property and debts will be divided equally. Receipt for renunciation of a share in joint property A husband or wife who wants to renounce their property rights in favor of each other often asks about a receipt. Is it possible to write a receipt according to which one spouse renounces property rights in favor of the second spouse? No, such a one-sided document is not provided for by law, and therefore will not be valid.

Registration of refusal of a share in a privatized apartment

The renunciation of a share in a privatized apartment must be formalized legally in order to avoid possible negative consequences in the future. Read further in the article about how to renounce a share in a privatized apartment voluntarily, during a divorce, or in favor of a relative (mother, father, son, sister, etc.).

First, you need to obtain a document confirming the citizen’s ownership of a share in a privatized apartment. Such a document is currently an extract from the Unified State Register, which can be ordered on the government services portal, at the MFC, as well as at the registration chamber.

Refusal of jointly acquired property

• Civil law
• Ownership
• The apartment was purchased during marriage. The only owner is the wife. How to make sure that after a divorce, the apartment remains entirely the property of the wife and the ex-husband cannot lay claim to it. The husband is ready to voluntarily sign any papers. He verbally says that he does not claim the apartment, but I want to confirm this with a document.
  
  And so that in the future, when selling or exchanging an apartment, they will not require the husband’s consent to this. I have an adult daughter, maybe I can re-register the apartment for her? What will be more reliable? And at the lowest cost? Does he need to write a waiver of ownership of the apartment? Thank you.

Features of purchasing a share in an apartment in 2020

According to civil law, all citizens are entitled to equal rights. When applied to shared ownership, this rule means that the owner of the share has the right to dispose of it at his own discretion, but in compliance with the interests of the remaining owners.

Discussion of the upcoming sale of the share with the remaining owners If someone decides to buy out the share, then you can do without written notice. In other cases, you should not rely on verbal assurances. It is necessary to prepare an official notice indicating the conditions and price. Receiving a response from the owners. If a refusal is received, you can proceed to finalize the transaction with a third party. Otherwise, you must wait until the end of the month. Search for a buyer if the owners refuse to purchase. Search for a buyer is allowed by any available means (media, real estate agencies, Internet) Agreeing on conditions with the buyer. Once the buyer is found, the terms of sale are negotiated with him. In this case, the conditions must correspond to those specified in the notification. When the buyer insists on changing the terms, he must be prepared to wait a month to receive a new response from the co-owners. In this case, it is quite possible that someone will agree to buy out the share. Conclusion of the purchase and sale agreement. The agreed agreement is signed by the parties. Then the agreement is certified by a notary. Execution of an act of acceptance and transfer. According to this act, the transfer of the share is carried out. The act itself is attached to the agreement. Application to Rosreestr. The buyer submits documents to register the transfer of ownership. The presence of the seller is not required, since the contract is certified by a notary

Registration of notarial consent of the spouse for the purchase of an apartment

Since 2020, registration of transactions for the purchase of apartments is carried out in the absence of a mandatory document - a notarized consent of the spouse to purchase real estate. However, the need to obtain written approval has been established by law to date.

Property acquired during marriage, except for that received by inheritance or gift, is considered joint. Spouses must dispose of it equally, even if only one of the specified family members is registered as the owner of the object. In order to avoid recognition of the transaction as illegal, the mandatory procedure is to obtain the notarized consent of the second spouse to purchase an apartment or sell it.

Legislative regulation

The rule prescribing the mandatory procedure for obtaining the appropriate approval is set out in the following documents:

1. Family Code of the Russian Federation;
2. Civil Code of the Russian Federation.

Also, the notarized consent of the spouse to purchase real estate (apartment or house) with a mortgage will be required by the bank, referring to Art. 7 Federal Law “On Mortgages”. Exception: the second family member is a co-borrower under a mortgage lending agreement.

Developers who sell apartments under equity participation agreements also, when submitting documentation to Rosreestr, ask for the specified paper to be provided in addition to a certain list of papers, even in situations of assignment of housing rights under construction (this is the position of the registration authority).

Registration procedure

The document must be prepared only by a notary. There is an option to prepare the text yourself and arrange it on a notary’s letterhead, but there is no reason to do so. In notary offices, such papers are prepared in half an hour.

Visit to a notary and documents

To visit a notary's office, it is better to make an appointment for a specific time so as not to sit in line for an appointment. Only the spouse from whom approval is required can come to the notary. You must have with you:

1. Passport.
2. Marriage certificate.

consent

The document must contain the following information.

Table 1. Information indicated in the notarial consent of the spouse

Sample document

The notary has established a certain form. You can see what a completed notary form looks like in the example provided:

Fig.2. Sample form. Source website stdveri.ru

You can download a template to fill out, which must subsequently be certified, here.

Price

Tariffs for registration are set uniformly by the Notary Chamber of the region. The difference in how much this service costs depends on the tariff for technical work. The approximate cost is about 2000 rubles.

Important! The validity period of consent is not established by law. It is considered to be valid until the consent is withdrawn by the spouse who gave it.

When consent is not needed

Property solely belongs to one of the spouses if it was received by him by inheritance or as a gift, therefore, consent is not required for its sale.

It is not necessary when transferring any property as a gift to one of the spouses.

In addition to those indicated, there are a number of other circumstances in transactions that exclude the procedure under consideration, but not everything is so simple here.

When concluding a marriage contract

The Family Code (Article 40) provides for the conclusion of an agreement between citizens getting married with the possibility of stipulating in it the status and ownership of valuables and real estate acquired during the marriage. Accordingly, provided that certain property is assigned to one family member, the other will not have to document its acquisition.

When purchasing commercial real estate

It is believed that if the purchased premises are classified as non-residential, commercial, then the notarized consent of the spouse for the purchase of real estate is not required. However, this position is not supported by law.

In the case where one of the married couple runs a business and acts as an entrepreneur, there is one option, but if premises with a commercial purpose are purchased by an individual using funds from a joint budget, the situation is different.

Relinquishment of a share with the participation of maternal capital

I have three children aged 22, 18 and 3 plus a husband. We arrange the purchase of an apartment with the investment of maternity capital. How to renounce the share of all family members, including a minor (3 years old) in favor of a 22 year old child. A 3 year old child was allocated a 1/2 share in another home a year ago.

Interesting read: Is it possible to apply for alimony for previous years?

Initially, you can make a purchase in the name of one of the persons, but before receiving maternity capital funds to pay for the purchased apartment, you will need to issue a notarized obligation to the PF to allocate a share in the apartment to the minor and other family members (with the shares determined by agreement) within 6 months after the transfer capital to you, otherwise the Pension Fund will simply not transfer it (clause “d”, paragraph 8 of the Decree of the Government of the Russian Federation of December 12, 2007 N 862, Appeal ruling of the Moscow City Court dated July 12, 2013 in case No. 11-20484/2013)

Russian Pension Fund

The use of maternal or family capital to purchase an apartment, whether partially or completely, is clearly stated in the legislative acts regulating this issue. However, quite often married couples have a question: how to give up a share in an apartment purchased with maternity capital, if it is possible to carry out the procedure officially? Considering the number of families who are already or are planning in the future to use the certificate for this purpose, let's look at how to legally get out of this situation.

Due to the fact that property acquired during marriage, and especially with the involvement of family capital, is considered, according to Art. 34 “Common property of spouses” of the Family Code of the Russian Federation, jointly acquired property, unless otherwise stated in the couple’s marriage contract. During the court hearing, the division of property is carried out equally for each of the spouses. In case of divorce proceedings, the problem arises: what to do with the husband’s (wife’s) share, how to divide the property? If the spouse agrees to voluntarily draw up a deed of donation of his share to one of the children or wife, then the issue is resolved simply. If such an initiative is not welcomed on the part of the defendant, contact the judge so that this issue can be resolved in court.

Lawyer Ilya Titov (St. Petersburg) answers:

According to Art. 256 of the Civil Code of the Russian Federation, property acquired by spouses during marriage, as a general rule, is their joint property. According to the Civil Code of the Russian Federation and the Investigative Committee of the Russian Federation, joint property of spouses is a special regime that presupposes the presence of a common property mass owned by both spouses equally, but excluding the presence of allocated shares. For example, spouses in a marriage bought an apartment, use it, but the wife or husband cannot sell or give ½ of this apartment to someone (assuming it is their half), because one of the spouses does not own some part of this apartment: the whole The apartment belongs to both the husband and wife at the same time. That is why, in order to somehow dispose of the share in the common property of the spouses, it is first necessary to transfer the property from joint ownership to shared ownership.

Can a husband give his wife his share of the mortgaged apartment?

We are buying an apartment in my wife's name. Do I need my husband's notarized consent?

Shared property can arise from the joint property of spouses by determining shares in this property. The law provides for two procedures (Articles 38-39 of the RF IC): pre-trial (spouses, without going to court, independently agree on what shares in the property will belong to the husband and wife) and judicial (when the spouses cannot agree, then one of them applies to the court with a claim and asks the court to determine the shares of each of them in the common property).

Out of court, spouses can determine shares using one of the documents:

• marriage contract
• or an agreement on the division of common property acquired by spouses during marriage (hereinafter referred to as an agreement on the division of common property).

Both documents must be certified in writing by a notary. However, a man and a woman can enter into a marriage contract (Articles 40-42 of the RF IC) before marriage or during the marriage, while an agreement can be concluded during the marriage or after its dissolution. The cost of a marriage contract is fixed (according to Article 333.24 of the Tax Code of the Russian Federation, the state duty is 500 rubles; notary fees for drawing up a contract vary within 10 thousand rubles), while the cost of an agreement on the division of common property depends on the value of the property itself and is 0.5 % of the value of jointly acquired property, but not more than 20 thousand rubles.

When choosing a document, spouses should also keep in mind that a marriage contract can be declared invalid in court (Article 44 of the RF IC) at the request of one of the spouses, if it is established that the terms of such a contract place this spouse in an extremely unfavorable position. Thus, it is very risky to determine the shares of the spouses in a marriage contract that differ significantly from ½.

After the spouses have signed a marriage contract or an agreement on the division of common property, and a notary has certified it, the husband and wife need to register a change in the form of ownership of real estate in Rosreestr (Federal Service for State Registration, Cadastre and Cartography). To do this, you need to pay a state fee of 2 thousand rubles, write an application, attach marriage contracts to it and apply with these documents to the MFC. After registering the changes in the Unified State Register of Real Estate (USRN), the right to real estate will be reflected in shares, the size of which was determined by the spouses.

If the spouses have agreed that one of them renounces his share in the common property in favor of the other, then such a refusal is also formalized by a notary in a separate document (after the changed regime of ownership of real estate has been registered in Rosreestr). Spouses may provide that one of them renounces his share in favor of the other without compensation or on the basis of compensation (for example, the wife renounces ½ share in an apartment, and the husband pays her the cost of this share).

Can I kick my husband out of the apartment without his knowledge?

Division of property in divorce: complex cases

Spouses should also take into account that when dividing jointly acquired property after divorce using an agreement on the division of common property, situations are possible when one spouse will own more than ½ of the total property (the presence or absence of compensation for the difference in the amount of shares of the spouses does not matter). In this case, the difference in value exceeding his ½ share is his profit (enrichment). On the profit, the spouse will be required to pay personal income tax according to the Tax Code of the Russian Federation (based on Letter of the Federal Tax Service of Russia dated March 15, 2017 No. BS-4-11/4624). For example, if the spouses agreed that the ex-husband will own ¾ of the apartment, and the ex-wife – ¼ (with or without compensation), then the husband will be required to pay personal income tax on ¼.

Refusal of a spouse's share when purchasing an apartment for maternity capital

Hello! Alas, the right to housing will be distributed even if the property apartment is less than the accounting standard area. Since January 21, 2020, the right of ownership of residential premises has been recognized; in the event of inheritance of the taxpayer’s property, but not received by him under the purchase and sale agreement, then the full right to provide you with a share in the apartment in agreement with the size of the specified real estate. True, on the basis of Art. 450 of the Civil Code of the Russian Federation have the right to part of the property. With this heir, after completing the donation transaction, he himself sells the property to all owners by concluding a donation agreement. If the claim is satisfied by you, then it is best to find options in the process of complexity at the discretion of your mother, to use the property of your relatives, but in fact you do not need to sell, since there are grounds for eviction from a residential premises for the alienation of property upon the sale of a land plot, a social contract . hiring Eviction or, in the case of division of property under a social tenancy agreement, moving in of real estate is not permitted. In case of renunciation of the right of ownership, its shares are acquired and are subject to division by each of the heirs and is not recognized as belonging to the heir of the corresponding common joint property. The marriage was not registered within 6 months after the death of the father. If your mother was not married, then only one of the spouses had to transfer it and was obliged to pay or oblige the mother when registering an inheritance for your daughter and children. Sincerely, Valeria Gerasimova

Elena, good evening! In accordance with paragraph 3 of Art. 256 of the Civil Code of the Russian Federation for compulsory execution are reserved for you and to pay a one-time allowance for child care during the period of service held under a social employment contract or on refusal to accept an inheritance and with the consent of the owner from other persons or refuse it in accordance with this Federal Law . If there is such consent, the court at the request of the guardianship and trusteeship body, then the heirs by law acquire the right to demand a modified obligation in relation to the share in the right to the apartment, unless otherwise established by law, and in accordance with the provisions of this article (even in the event of a dispute, related to the ownership of property, exchange) or part thereof, paid in accordance with this article, cannot be satisfied either on a general basis or by agreement of the parties. Since she will remain escheat.

Spouses' consent to purchase real estate

One of the most numerous notarial actions today is notarized various types of CONSENT,

including
the consent of spouses for the acquisition and alienation of real estate
(apartments, garages, land plots, non-residential premises, etc.).

The legal regime of the property of spouses is regulated, in particular, by the Family Code of the Russian Federation (Articles 33-46), which clearly states that in order for one of the spouses to complete a transaction to dispose of real estate, it is necessary to obtain the notarized consent of the other spouse. The spouse, whose notarial consent to carry out the specified transaction was not obtained, has the right to demand that the transaction be declared invalid in court.

No notarized consent of the spouse is required

to carry out transactions with real estate acquired before marriage, as well as received by one of the spouses during marriage as a gift or by inheritance.

In the process of drawing up and notarizing consents, spouses have questions regarding the validity period of such consent, as well as the need to obtain consent not only for the sale, but also for the purchase of real estate.

The legislation does not establish specific validity periods for consent, therefore it is possible to revoke consent by a notary before the transaction is completed; After the transaction is completed, these issues are resolved in court.

Necessity

The notarized
consent of the spouse
for
the purchase
of real estate arises based on the meaning of Art.
34.35 of the Family Code of the Russian Federation, which clearly states: “A transaction made by one of the spouses to dispose of the common property of the spouses...” and “the common property of the spouses includes the income of each spouse from work, pensions, benefits and other monetary payments
... ", with some exceptions. Since the purchase of real estate simultaneously involves the alienation of funds acquired jointly during marriage, therefore, the consent of the spouse is also required for the purchase of real estate.

The above legislative norms are not overly far-fetched by anyone or anything, but are dictated by very real life situations and judicial practice.

Compliance with the requirements of the law when making real estate transactions will serve as a guarantee of their reliability and indisputability.

N. NAZARTSEVA,
notary of the Vuktyl notarial district.

Is it possible to buy a share in an apartment with maternity capital from relatives and how to do it

Purchasing a share of an apartment with maternity capital from relatives in general, and from parents in particular, using funds from the federal program for subsidizing large families, is permitted by law. Most often, this matters when purchasing the remaining part of the selected premises.

Interesting read: Bailiffs seized apartments for sale in Moscow

Since laws and government regulations do not prohibit purchasing from relatives, upon receiving a refusal from the Pension Fund, it is necessary to begin legal proceedings on the legality of such a decision. Most often, the court sides with the person who needs to improve their living conditions.

Can a suarug refuse in advance a share in a quarter purchased with mat capital?

The Pension Fund claims that when buying an apartment with mat capital, all family members must be included in the share, but the husband does not want to have a share there and wants to write a refusal at the notary since he already has a share, can he renounce it in advance or must he first include in the share and then he will refuse?

Therefore, I believe you are obligated to fulfill this obligation. However, there is no direct liability for the failure to allocate a share to the spouse. However, there is a danger that the spouse’s right to a share in the purchased housing will be recognized in court. But only if he himself demands the allocation of his share. Moreover, you understand that now the husband thinks this way, but in a couple of years he may begin to think differently. Or, God forbid, the worst thing happens to him, and his heirs will be able to demand that his share be included in the inheritance. And then it will be impossible to do without a trial. And this is wasted time and money.

Answered by lawyer, K. Yu. n. Yulia Verbitskaya:

There are several ways to formalize such a refusal. Moreover, at each stage of the relationship between spouses, the appropriate method is applicable.

The first situation: the spouses are married and intend to divide the property peacefully, by mutual consent. In this case, a marriage contract certified by a notary comes to their aid. As a rule, in a marriage contract, all property, its ownership regime, shares, as well as other rights and obligations are spelled out as completely as possible.

Second situation. The property was acquired by the spouses during marriage. However, the marriage was dissolved, and the issue of property had not previously arisen. At the same time, there is no dispute about the ownership of property between the spouses. In this case, a written refusal of the share by the second spouse is sufficient. It is advisable to have this refusal certified by a notary to avoid further disputes. But an ordinary refusal made in simple written form will also be valid.

The third situation is when there is a dispute. In this case, it does not matter whether the marriage remains valid or dissolved. If agreement between the parties cannot be reached (for any reason), the dispute must be resolved in court. However, even here the spouses can decide on their own by concluding a settlement agreement. It can establish the property regime of the spouses, including who owns what, and also record the refusal of one spouse from property in favor of the other spouse. A settlement agreement concluded between spouses is certified by the court and has the legal force of a judicial act (court decision).

Who has the right to a mortgage apartment after divorce?

How to keep property purchased before marriage?

Buying an apartment by spouses

Buying an apartment by spouses sometimes becomes costly, that is, in cases where the transaction cannot be completed without a notary, you will face additional costs for paying legal and technical services to the notary and paying the state fee for certifying the contract.

This site contains more than 300 of my articles, from which you will find answers to absolutely all questions about real estate transactions and the procedure for registering property rights. The site materials comply with the requirements of Federal Law-218 “On State Registration of Real Estate” (came into force on January 2, 2020)

Spouse's consent to transactions

The question of the spouse’s consent for notarization of powers of attorney is also interesting. According to Article 185 of the Civil Code of the Russian Federation, a notarized form of certification is required for transactions that are carried out in notarial form. Here it is worth agreeing with the commentary of E. A. Chefranova regarding the literal interpretation of paragraph 3 of Article 35 of the Family Code. It leads to the conclusion that it is necessary to obtain the consent of the spouse for notarization of a power of attorney under the procedure of subrogation, as well as a power of attorney for the purchase and sale of real estate or a car, as well as deregistration of the latter. After all, a power of attorney is also a transaction, albeit a one-sided one.

We recommend reading: Subsidy for Pensioners Living Alone from 2020

Relinquishment of a share in an apartment based on maternity capital

Moreover, according to the legal position of the court, children’s right of ownership of housing arises regardless of state registration of rights. Previously, it was believed that the acquisition of residential premises using maternity capital funds does not entail the unconditional emergence of ownership rights to it by persons not specified in the contract as the purchaser. Despite the position expressed by the Supreme Court, there has been no change in the approaches of the courts to resolving the issue of the possibility of refusing to exercise the right to participate in determining shares in the right of common shared ownership of residential premises, which can be seen from the decision of the Valuysky District Court of the Belgorod Region dated October 13, 2020 in case No. 2a-1059/2020 [4], upheld by the appeal ruling of the Belgorod Regional Court dated January 12, 2020.

The plaintiff, independently disposing of her right, indicated her reluctance to acquire a share in the ownership of the house, refusing to conclude the relevant transaction. The court came to the conclusion that, for the reasons stated above, this refusal does not contradict the law. In connection with the release of a review of judicial practice in cases related to the implementation of the right to maternal (family) capital, approved by the Presidium of the Supreme Court of the Russian Federation on June 22, 2020, a completely opposite opinion has formed in the scientific literature, based on the literal interpretation of the legal positions expressed in this review . In accordance with the review, a property acquired (built, reconstructed) using maternity capital funds is in the common shared ownership of parents and children.

Preemptive right to purchase a share in an apartment

Important point! An offer to buy out a share in an apartment for co-owners must contain the same conditions (primarily the price) that will be offered to all other buyers. Otherwise, for example, if the co-owners are offered a buyout of a share, say, for 100 rubles, and then this share is sold on the market for 90 rubles, then the co-owners can challenge this transaction on legal grounds.

The pre-emptive right to purchase a share of an apartment is the right of co-owners (co-owners) to buy a share in the apartment from their neighbor before he sells it to anyone else on the side. The same applies to a separate room in a communal apartment. Let us explain in more detail.

17 Dec 2020 uristland 234

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Consent of the spouse to the alienation of real estate

So, it is necessary to check with the seller (donor) his passport for the presence of a marriage registration stamp, check the date of marriage and the date of purchase of real estate. But it often turns out that a person is married, but the stamp in the passport is missing (for example, when changing a passport). In this case, the seller (donor) may mislead the buyer (done) and sell (or donate) the property he purchased during marriage without the consent of the spouse.

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