How and why is a notarized waiver of the pre-emptive right to purchase issued?

A refusal is an official response to the seller's notification of an upcoming transaction. Regardless of how the notice of sale was sent, the waiver of the pre-emptive right to purchase must be made in writing.

The text clearly states that the citizen will not exercise his right and claim a share of the plot in the future. The document is certified by a notary. All these measures are aimed at protecting the seller - in case the co-owner changes his mind and files a lawsuit.

The preemptive right is transferred to the heirs. When one of the co-owners dies, notice of sale must be sent to his successors.

Refusal is not mandatory. Participants in shared ownership have the right to ignore the notice. However, obtaining waiver documents is the only way to quickly sell a share to a third party. Otherwise, the seller must wait 30 days.

If the seller breaks the law and sells the land share early, the person whose rights were violated will be able to file a lawsuit within three months from the moment he learned of the violation. The statement of claim will indicate the requirement to transfer the rights and obligations of the buyer to the participant in shared ownership.

Waiver papers are attached to the documents when registering the sale and purchase. They serve as proof of the absence of an obstacle.

There are two ways to submit a refusal:

1. Independent registration and sending by registered mail with notification of delivery by mail.
2. Contact a notary.

The second method is recommended. If you decide to file a waiver yourself, consult a lawyer. This can be done on our website.

We answer your questions

How can I get around the need to obtain a waiver of the right of first refusal?

In practice, it is not always easy to get this refusal from neighbors, especially if relations with them leave much to be desired. Neighbors may refuse to sign this document due to their own reasons or principles, and sometimes they will even create obstacles out of nowhere.

In such situations, there are several options for resolving the issue:

1. Conduct a transaction under a gift agreement. It is necessary to agree with the buyer that the transaction for the purchase and sale of a share in the apartment should be formalized as a gift transaction. When registering a change of ownership based on a gift agreement, it is not necessary to register a waiver of the right of first refusal by neighbors. It is important to understand that in this case, in addition to the money for the share in the apartment, the buyer will need to pay 13% of the value of the property as income tax to the state.
2. Send notarized notifications to the remaining owners about the planned sale of a share in the common property. Sending one such notification will cost 2500-3000 rubles. It will be possible to sell shares to a third party after 30-60 days.
3. Sending notifications about the sale of shares to other owners of common property on your own. For registration, the sender does not matter much; the deadline of 30-60 days will also remain the same, but the cost of the procedure will be reduced significantly; sending a notification to one addressee will cost about 150 rubles.
4. Not all buyers are willing to wait one to two months until all the evidence is collected that the owners have been notified of the sale of a share in the apartment. There is a faster way that does not require collecting refusals from neighbors at all. As we have already found out, waivers are not required in case of donation of a share. Therefore, you can consider the following option with the buyer without the need to collect waivers of pre-emptive rights from neighbors. A gift agreement is drawn up for the amount of the deposit. Since the area to be donated will be insignificant, conventionally one or several meters, the tax on the gift for the buyer will also not be large. But this will make it possible to obtain ownership rights to a share in the apartment. Thus, the buyer has become the owner of a share in a communal apartment and, as an owner, receives the right of first refusal to purchase other shares. In this case, waivers from other owners are not required.

ATTENTION, the option of “donating” an apartment is essentially a “gray scheme” and carries serious risks, so when implementing it you need to be completely confident in the buyer and his intentions, otherwise you risk being left with a rather “interesting” piece of real estate - a room in a communal apartment , which is also in shared ownership.

In addition, any neighbor in a communal apartment can challenge a pretend donation transaction, which is actually a purchase and sale transaction, and demand that the ownership of the housing be transferred to him.

Create a pledge for the share and sell it to a third party. The buyer must sign a loan agreement secured by existing real estate. The seller of the room intentionally fails to pay the loan amount, this gives the buyer the opportunity to legally recover the mortgage on his property.

How to prepare notifications for neighbors about the sale of a share in a communal apartment yourself?

It is worth remembering that only the owners of privatized rooms have the right of first refusal; there is no need to coordinate the sale with those who live on the basis of a social tenancy or lease agreement. It is possible to find out the actual rights to rooms in a communal apartment in Rosreestr.

IMPORTANT: if there are rooms in a communal apartment that have not been previously privatized, then the administration is considered their owners. In this case, the notification must be sent to the municipal property management department.

If one of the co-owners is a minor

The situation becomes more complicated when one of the participants in shared ownership is a minor or incapacitated citizen. The guardianship and trusteeship authorities carefully monitor compliance with the pre-emptive rights of these persons.

Depending on the category of the owner, the following persons will contact the guardianship authorities to formalize the refusal:

• parents, if the minor has not reached the age of 14;
• parents and child personally, if he has reached 14 years of age;
• guardian if the owner is incapacitated or partially incompetent.

The refusal is issued in the territorial department of the guardianship and trusteeship authorities at the place of residence. You will need to provide copies and originals of documents for the land plot and a notice of sale. You need to have your passport, birth certificate, and a document confirming your lack of legal capacity.

How is it processed?

The requirements for this agreement have a number of conditions, if not met, the document will be considered invalid:

1. Details, passport details and other information about the participants in the transaction must be as detailed as possible ;
2. Precisely defined subject of the agreement : exact address, technical data (total area, living area, etc.);
3. Clearly defined shares for each owner : to whom and how much;
4. Detailed information about title documents that can confirm ownership: contracts for the purchase of housing, or a certificate of inheritance of a house/apartment;
5. Privatization certificate of ownership.

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Among other things, the agreement specifies additional conditions:

• procedure for operating property registered as shared ownership;
• unilateral ban on refusal to fulfill all obligations;
• absence of any encumbrances on real estate ;
• absence of any material claims against other owners;
• the procedure for making emerging additions and changes to the agreement;
• temporary deadlines for registration of additions and changes.

Document structure and procedure

In the waiver of the pre-emptive right to acquire a share of land, it is necessary to indicate specific information relevant to the case. So, the document states:

• full address of the land plot;
• cadastral data;
• square;
• characteristics of the share;
• timing of consideration of the proposal to buy out a share;
• Full name and passport details of the participant in shared ownership;
• date and signature.

The place of registration is indicated at the top of the document. There is no need to write the usual “hat”. This is followed by the main part, which describes the property and the waiver of the pre-emptive right to purchase a share. If difficulties arise, contact a lawyer.

When registering through a notary, you will need to provide the following documents:

• general civil passport of the Russian Federation;
• notice of sale of a share of land;
• title documents for land.

Notary services are paid. On average, pay about three thousand rubles. If the document is drawn up by a specialist at a notary office, the amount will increase by the cost of technical work.

Differences between joint and shared ownership

Joint ownership is the joint ownership of common property by citizens.

They own it on equal terms , having absolutely the same privileges and obligations. Maintenance costs, utilities and taxes are jointly paid.

A good example would be an apartment owned by both spouses .

If it was acquired after marriage , then ownership will not belong 50 to 50, as many owners are accustomed to believe, but 100% to both the first and second owners, that is, each will own the apartment completely .

All property acquired after marriage becomes joint property by default.

Unless other conditions are stipulated by an official marriage contract or a shared ownership agreement .

Shared ownership is individual ownership of part of the common property.

Expert opinion

Kurtov Mikhail Sergeevich

Practitioner lawyer with 15 years of experience. Specializes in civil and family law. Author of dozens of articles on legal topics.

In this case , there can be many co-owners and they do not have to be relatives. The size of the shares can also be different for everyone.

The most common option is an ordinary family living in an apartment and dividing ownership between all its members - parents and children.

In such a situation, utility payments come entirely to the entire residential premises , but everyone will pay taxes for themselves .

The share in most such cases is not determined by a specific premises and cannot be sold to strangers . It can be bought by relatives living in the same apartment.

You can also receive a cash reward , equivalent to the cost of the share upon sale. If desired, this option can be converted into the second – allocated share.

An example of an allocated share with specific meters and binding to a specific room would be a multi-room apartment (communal apartments are still a very common phenomenon in Russia), in which each room has its own owner .

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The size of the rooms is different, and, accordingly, the size of the share . Utilities and taxes, with this type of property, everyone pays for themselves and only for their own meters.

The allocated share can be given as a gift or sold without the consent of all other owners . However, when selling, other “owners” will have the privilege of having the right to buy out their shares as a matter of priority .

After refuse to purchase, you can offer the deal to third parties .

What is the concept of a share in an apartment, read in our article.

Features of refusal under the Civil Code of the Russian Federation

Failure to comply with the notification procedure and waiver of the pre-emptive right to purchase will result in the cancellation of subsequent transactions. First of all, it is extremely important to formalize the transaction under the same conditions as those indicated by the seller in the notice of the planned sale of the share.

For example, if a seller offers co-owners to buy a share of land for 500 thousand rubles, and then, after their refusal, enters into a deal for 250 thousand, then the participants in shared ownership have the right to file a lawsuit and challenge the deal. If the price decreases, the law requires sending a new notification to the co-owners.

After writing the waivers, the seller should draw up an official document from a notary. To this end, all written waivers are provided, as well as notices of sending and receiving alerts. The notary will examine the submitted papers and issue a certificate confirming that there are no obstacles to the sale of the land share to a third party.