How to allocate shares to children based on maternity capital

The allocation of a share to children when using maternity capital is made in two ways - by agreement or by gift. This requirement is spelled out in current legislation (Federal Law No. 256) and must be strictly observed by recipients of financial assistance. Failure to comply with these standards entails serious consequences for recipients of maternal capital. The downside is that implementing such a law requires additional costs.

General provisions

The rules for obtaining and using maternity capital are described in detail in the Federal Law under number 256. According to statistics, the majority of people (recipients of state assistance) spend funds on the purchase of real estate. If this option is chosen, when conducting a transaction it is important to take into account not only adult citizens, but also children.

Federal Law No. 256 does not have clear rules explaining the rules for registering property. The reason is that the allocation of parts of the property depends on the terms of the agreement. In addition, it is not always possible to implement legal requirements, for example, with a mortgage. That is why a personal approach is used when distributing shares.

Pension Fund Rules

Allocation of maternity capital and transfer of funds is the task of the Pension Fund. It is this body that determines to whom and when to transfer state aid, and the basis for decision-making is Resolution No. 862. The current rules state that parents are required to allocate shares of real estate to minors in the following cases:

• At the time of transfer of money, the owner of the property was not determined (according to papers).
• There are no rights to real estate.

If parents do not undertake to donate part of the property to their children, the transfer of maternal capital will be refused.

Several typical situations stand out today:

1. The property is registered in the name of the recipient of financial assistance (children are not taken into account).
2. The apartment is on credit.
3. The building is just under construction, and it will not be possible to register the property before the facility is put into operation.
4. The property is purchased through a cooperative in which one or two parents participate.
5. The certificate is used to cover the costs of housing that was put into operation after the beginning of 2007 (certificate recipients and family members do not own real estate).

Each case has certain nuances, so in some cases legal assistance may be required.

Is it necessary to allocate shares to children when using maternity capital?

In accordance with clause 4 of Article 10 of Federal Law No. 256, when purchasing or constructing residential premises, parents are required to allocate a share to all minor children, not only those already born, but also those conceived during the period of purchase or construction of housing using the certificate.

In addition to children, their parents claim a share of the living space (subject to an official marriage). But the law does not allow the allocation of a share to other relatives.

Obligation to provide shares

The obligation to allocate a share is a document confirmed by a notary on the mandatory division of rights to own shares of living space between members of the entire family, including young and adult children.

The obligation is sent to the Pension Fund, complete with an application for investing maternity capital funds in improving the level of living conditions. Regulated by the “Rules for the use of maternity capital to improve housing conditions”, enshrined in Decree of the Government of the Russian Federation No. 862 of December 12, 2020.

Before transferring capital by the Pension Fund, in order to guarantee the allocation of shares of living space to minor citizens, citizens must give a written commitment to allocate shares.

A commitment is required in a number of cases:

• If, at the time of acceptance of the application for the use of maternity capital funds to improve the quality of living conditions by the Pension Fund, the living space is not recorded by the state register as the common property of the family. That is, under a residence purchase agreement, not all family members own shared property. If the housing has already been purchased with a mortgage by the owner of the certificate, then it is possible to allocate shares only after being released from the debt encumbrance;
• When concluding an agreement in installments, on the condition that the selling party transfers ownership after the final payment;
• Shared construction of housing - property rights can be recorded only after the object is put into operation;
• When participating in a housing, savings or housing-construction association, state registration takes place upon payment of the final contribution;
• When constructing or recreating a private household, ownership rights can be obtained after the issuance of a cadastral passport for a private household.

If the mortgage is taken out by both spouses or they represent parties to the purchase and sale agreement, then both parents sign the obligation.

To compose the text and register a document, you need to contact a notary office with a complete list of papers, including:

• Certificate holder's passport;
• Documentation of the birth or adoption of children (if available);
• Marriage registration certificate;
• Documents confirming the ownership of real estate, such as an extract from the register for members of a housing association, a purchase and sale agreement, etc.;
• Extract from the Unified State Register of Real Estate (documentation of registration of ownership of real estate);
• Mortgage agreement (if any).

The contents of the document depend on the type of acquisition of residential space:

• Purchase of housing by the owner of the certificate under a purchase and sale agreement;
• Release from mortgage debt;
• When purchasing a place of residence in installments;
• When directing maternity capital funds to recreate or build a private home.

It is also required to register a share of residential property for unborn children. If the spouses plan to have children in the future, then the obligation must contain a clause on the redistribution of shares of owners of residential real estate.

Is it possible not to allocate a share to my husband?

As stated above, both parents have equal rights to all family property, including an apartment purchased with the help of MS. Thus, both husband and wife claim a certain share of the living space, the size of which will depend on the mutual agreement of the spouses.

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Spouses have the right to enter into an agreement specifying the share of each family member and register it with a notary. Moreover, not only the husband, who is a citizen of the Russian Federation, but also a foreigner has the right to a share of the apartment; the only condition is that the marriage must be registered.

But if the mother uses MS after the divorce, then the ex-husband has no right to part of the living space, that is, he cannot claim a share in the apartment.

Subtleties of formalizing an obligation

From December 29, 2015, parents formalize an obligation to transfer shares to their children. The document has official status, so it will not be possible to issue it without a notary. To carry out the transaction, a package of papers is collected, after which the whole family is sent to the notary office. There, an office worker helps with the registration. When performing work, it is important to take into account what day the 6-month term for the implementation of the obligation starts. If a parent violates the deadline, the result may be legal proceedings.

Shares are allocated to children in two ways - through a gift agreement or by agreement (this was mentioned above). The laws of the Russian Federation do not stipulate punishment for violating this requirement, but control by government agencies is mandatory. We are talking about structures that protect the rights of citizens under 18 years of age - the Pension Fund, guardianship authorities, the prosecutor's office and others. If the inspection reveals violations, a lawsuit is filed against the parents. Based on the results of the investigation, the apartment is divided into shares or the recipient of financial assistance is forced to return the money.

Expenses

An equally important point is the issue of price. As noted, a notary is hired to draw up an obligation, whose services are paid. At the same time, the cost of work depends on a number of factors - the region and the company itself. On average in the Russian Federation, the services of a notary authority cost 700-2500 rubles. In the most difficult cases, it is necessary to draw up several contracts, which entails additional costs.

To save money, it is worth asking that all conditions be spelled out only in a single conclusion. This approach is not prohibited by the laws of the Russian Federation. In this case, the choice of document option (deed of gift or agreement) is the task of the notary authority.

Is it possible not to transfer a share of real estate to a child?

Based on Federal Law No. 256 (clause 4, article 10), residential premises must be registered in the common possession of parents and children, subject to the determination of part of the property by agreement. Consequently, other approaches in this matter are excluded. As for the size of allocated shares, this issue is resolved on an individual basis. There are no clear rules in the laws of the Russian Federation, but you can focus on the standards established by law, or simply divide the property into equal shares. During the division process, it is important to take into account those children who are conceived but have not yet been born.

Agreement on the allocation of shares to children (sample)

• date, place of execution of the document;
• name of the document (Agreement of apartment/house owners on the allocation of shares);
• information about the parties to the agreement: full name, date of birth, passport details of parents;
• information about children: full name, date of birth, data on children’s birth certificates;
• data on the purchased property: address, area, number of rooms, number of floors of the building, data from cadastral and technical documents for residential premises;
• type of ownership (joint or shared), size of shares of each owner;
• procedure for purchasing residential real estate (purchase and sale agreement, mortgage, etc.);
• data on the use of the MK certificate (series, number, date of issue, body that issued the certificate);
• a condition on the establishment of common shared ownership of residential premises, on the allocation of shares indicating the size of the share belonging to each family member;
• a condition on the possibility of redistribution (reduction) of the shares of co-owners in connection with the birth of the third, fourth and other children;
• references to Federal Law No. 256 and Articles 244-245, 254 of the Civil Code of the Russian Federation;
• data on the number of copies of the document;
• list of applications;
• signatures of the parties to the agreement.

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The costs that will have to be incurred in connection with the distribution of shares between parents and children include a fee to a notary for certifying a written agreement on the allocation of shares and payment of the state fee for registering the right of shared ownership of real estate.

Who has the right to count on shares under the law?

6 months are allocated for the distribution of shares from the date of transfer of budget money for the purchase of real estate, commissioning of the building, removal of the encumbrance or other factors. According to the law, a person who has reached the age of 18 has the right to refuse real estate (if there is such a desire). The following persons participate in the section:

• Mother (father), if only one of them is the owner.
• All children, including those not born (conceived), adopted.

If a husband or wife refuses to transfer part of the property in relation to a child, the second spouse has the right to sue the “refuser” in court.

Obligations to allocate a share of maternity capital

Young families have a very difficult time these days.
They need to take care of their children, earn money, which is spent on buying food, clothing, and hygiene items needed by the kids. In most cases, parents with newborns have to wander around rented apartments. This causes a lot of inconvenience. It is precisely because of the difficult financial situation of many families that the state is taking additional support measures.

One of these is maternity capital. The obligation to allocate shares is a document certified by a notary or other legal entity, indicating the registration of the corresponding rights of family members of the certificate holder (including offspring who are not yet eighteen years old) to living space purchased using mat money. capital.

This obligation must be provided to the Pension Fund of Russia when writing an application for the disposal of capital funds to improve housing conditions. This document contains information that the owner of the apartment (certificate holder or spouse) undertakes the obligation in the near future to register the residential premises as the common shared ownership of all family members.

A written commitment must be drawn up in cases where:

1. at the time of contacting the Pension Fund with the corresponding application for disposal, the apartment or house is not registered as the common property of the owner of the certificate and his family members (husband, wife, minor children);
2. ownership of the housing area has not been registered.

It should be noted that in some cases an obligation is not required. We are talking about situations where both parents and children are buyers under a contract for the purchase of living space.

But ownership of them is registered only in Rosreestr. This must be done immediately after the transaction is concluded.

In other words, drawing up an obligation may be required in the case where the apartment or house is not registered as the common property of the owner of the certificate, his legal husband/wife or children, namely:

• according to the agreement, one or both spouses are considered the owner (in this case, common children are not included in the current document);
• the home is the property of the owner of the certificate (it belongs to the husband or wife), but is pledged (mortgage) and certain shares can be allocated only after this encumbrance is removed.

Registration of ownership of living space is not carried out at the time of the transaction:

• an agreement with installment payment was previously signed with the condition that registration of the right should be carried out after payment of the last installment;
• taking part in shared construction of housing - ownership rights are established only after the specific house is put into operation;
• taking part in a housing or savings cooperative - state registration is carried out only after making all mandatory contributions;
• construction of a private house or its reconstruction - in this case, ownership is registered only after the house is put into operation.

According to current legislation, the obligation to allocate shares to the husband, wife or children in a house purchased using capital funds can be issued by a notary or a person who is vested with such powers by law. It should be noted that the original document must remain with the Pension Fund of Russia.

But a copy is given to the owner of the certificate (the person who made the commitment). If the obligation was drawn up without the presence of a notary, then such a document has no legal force. The pension fund simply will not accept it.

The document must be drawn up only by the person who has ownership rights to a specific apartment or house. It could be:

1. certificate holder;
2. husband or wife;
3. both spouses, if they together are the owners (purchasers) of an apartment or house. They may also be co-borrowers on the mortgage.

It should be noted that not everyone can be given shares by obligation. Only natural and adopted children, including those who are already eighteen years old, are allowed to consider candidacies.

To formalize the obligation, you need to visit a notary’s office and provide the required package of documents.

How to divide property after paying off a mortgage loan?

According to the law, maternity capital can be used to repay a mortgage loan (payment of principal or interest) and to apply for a loan (before the birth of a child or after his birth). In each case, the shares are determined after the encumbrance is removed, when the borrower has paid off the debt.

The person playing the role of the main borrower is sent to the financial institution and receives a certificate of repayment of the debt. This paper is transferred to Rosreestr, after which the property is taken into possession. Within six months, it is necessary to attract a notary to allocate a part in relation to the remaining members.

Subtleties of the agreement

The steps for drawing up an agreement are simple, but may vary depending on the chosen method and the conditions by which the owner is determined:

1. If the owner is a husband or wife, a share is allocated in relation to the 2nd spouse. The property is divided into shares taking into account the existing offspring. However, children do not have the right to sign the notarial agreement. Their parents do this work for them.
2. If the property is owned by a husband and wife, it is permissible to immediately allocate shares to the children.
3. In the case where the property is joint, it is divided between the parents, and only then the share is allocated for children under 18 years of age.

The above steps do not apply to the situation when it comes to building a house.

The procedure for providing a child with a share in an apartment

According to established legislation, the distribution of shares to children must occur within six months after the selling party receives financial resources of maternity capital.

To record the common ownership of residential real estate, it is necessary to present an agreement establishing the size of shares (may include a list of conditions for the division of jointly acquired property) and a gift agreement.

In the event of a dispute between parents about the distribution of shares or evasion of the obligation to allocate a share, the division of shares takes place in court.

If one of the spouses owns the property, then the procedure for dividing the living space is divided into two stages:

1. Living space is shared by spouses under a marriage contract;
2. Shares are distributed among the children.

If both spouses own the home, the children can immediately be given shared ownership. In this case, there are two types of allocation of shares to children: an agreement on the determination of shares or a gift agreement.

Sample agreement

The document must display the following information:

• date and place of document preparation;
• personal data of both parents, their passport numbers;
• personal data of all minor children participating in the transaction;
• address and characteristics of the apartment;
• type of ownership (joint or shared);
• information about the document on the basis of which there is ownership;
• the size of the shares of all family members;
• the conditions under which shares are distributed;
• signatures of the parties;
• signature and seal of the notary.

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What to do when building a house?

If recipients of maternal capital are building a house on a plot of land, Pension Fund employees will require the transfer of an obligation to divide the property, certified by a notary. Otherwise, no money will be allocated. The following circumstances are also taken into account:

• If the house is at the construction stage, it will not be possible to register rights to it. This is due to the fact that there is no building for the state yet.
• When allocating funds for the restoration of an object, it is impossible to do without re-registration taking into account new technical parameters.

In this case, the obligation rests with the husband (wife) who received a construction permit (recipient of maternal capital) or the owner of the house planning reconstruction work. As soon as the building is put into operation, division into shares takes place, taking into account the recommendations discussed above. This norm is defined in the Land Code of the Russian Federation, Article 35.

Subtleties of contract execution

To avoid mistakes in drawing up the agreement, it is worth having a sample form. It can be obtained from the Pension Fund or from a notary. The document is drawn up in two copies and must contain two paragraphs. In the first, the owner of the property gives a share to the husband (wife), and in the second, a division occurs between the children. Parents must sign for children under 18 years of age. If the child's age is less than 14 years, the consent of the mother (father) is sufficient, and if the offspring is older than this age, he gives consent independently. In addition, during the construction of the house, it may be necessary to allocate a share in other housing (in agreement with the Pension Fund).

Download a sample agreement on the allocation of shares to children when using maternal capital

How to allocate a share to children based on maternity capital

In order to allocate shares to their children, parents can use one of two possible methods:

• draw up a notarized agreement on what share in residential real estate is allocated to each of the children when using maternity capital funds to purchase housing;
• draw up a deed of donation of shares for your children.

Let's consider what an agreement on the allocation of shares in the parents' residential real estate is.

First of all, this is a notarized document drawn up in strict accordance with the norms of current legislation, which will be accepted for registration by the relevant government agency represented by Rosreestr without any problems.

At the same time, notary services for drawing up an agreement can range from 1.5 to 2 thousand rubles.

How to use maternity capital funds?

Read about doubling your capital when buying an apartment here.

How to remove the encumbrance from an apartment based on maternity capital, read the link:

The law does not require mandatory certification of an agreement by a notary. It can be drawn up in simple written form, without the need to pay for the services of a notary, however, the legal purity of the document will suffer, and the state registrar may not accept the document for entering data into the Unified State Register of Real Estate.

This is explained by the fact that there is no single form for such a document. Therefore, the approach of state registrars to it is subjective.

If the allocation of shares is made by drawing up a gift agreement, then Rossreestr accepts such documents without comments.

And all because this document was drawn up by a notary, who is responsible for the legal purity of the document and its correct preparation.

However, there are also difficulties here, which depend on the type of housing ownership, that is, parents own shares in the housing, or the housing is in common shared ownership. There are no difficulties in owning shares. One parent gives part of his share, and the other - his.

In the event that the housing is in common shared ownership, it is taken into account that each parent owns half of the property, however, registrars in some cases require that the housing be first divided into shares between the spouses and then given to their children.

In this regard, there is a need for preliminary consultation with the registration authority on what specific requirements they impose, so that later you do not have to redo the documents.

What are the differences and similarities between an agreement and a gift agreement?

The difference between them is in form, but in content, each of them must include the following information:

• day, month and year of document preparation;
• personal data of participants, including last name, first name, patronymic, full date and place of birth, registration address and place of actual residence, series, number and date of issue of passport;
• characteristics of the residential property, its postal address, size of the total and living area;
• information on the basis of which document the residential real estate property belongs to the parties to the transaction;
• what is the size of the share for each of the participants in the transaction.

The number of copies of the document depends on the number of participants in the transaction and children. Plus one more copy for the registration authority. So, if there are two children in a family, then five copies of the document are needed.

The gift agreement is signed by all participants: both those who give and those who receive the gift. For minor children, the document is signed by parents, as their legal representatives.

Parents decide on their own which method to use to allocate shares in residential real estate to children.

Once a decision has been made in favor of one method or another:

• prepare an application for the need to register ownership in the form of a share in housing. Such a document is prepared on behalf of each participant in the transaction and can be filled out by the state registrar;
• prepare an agreement on the allocation of shares in maternity capital or an agreement for donating a share of an apartment to a child ;
• provide your parents’ passports in copies and originals;
• provide birth certificates of children in copies and originals;
• present a document confirming the ownership of the property and a copy thereof;
• provide the document on the basis of which the ownership of the housing arose. This can be either a purchase and sale agreement or an agreement on shared participation in the construction of a residential building;
• present a bank document confirming payment of the state duty in the amount of 2 thousand rubles. This fee is common to all parties to the transaction.

Submission of these documents is possible both to the USRN division by territoriality and to the MFC. The law allows 10 working days for reviewing documents, and 12 days when applying to a multifunctional center.

After the specified period of time, each of the parties to the transaction will receive a document confirming the state registration of their share in the housing.

Some nuances

By receiving permission from the Pension Fund to use maternity capital funds to purchase real estate, you commit to allocating a share to the child in the purchased housing.

The Pension Fund transmits this information to the Unified State Register of Real Estate in order to prevent the alienation of housing without registering a share in the real estate to a child whose funds were used to purchase housing.

However, over time, a situation arises when the mortgage is paid off and there is a need to expand housing, which becomes scarce as the children grow up.

What if there is no common property?

It is possible that family members do not have common property. Under such circumstances, maternity capital is issued only when rights to property are distributed, including in relation to children. The rule applies to the situation when:

1. Matkapital is used to purchase property (there are no minors among the owners).
2. A new building is under construction.
3. An installment plan for an apartment is issued subject to the transfer of rights to the property after the debt is repaid.

This also includes the situation when maternity capital is issued in the form of compensation for an already erected building, if the owner is only the husband or wife.

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Anna Vladimirovna

I am the editor-in-chief of our information portal, and I carefully review all the material from our experts before publishing them here. An economist by education, specialization in accounting, analysis and audit. Experience as an accountant for 10 years. I can work with long texts and legal documentation.

Features of allocating shares in an apartment based on maternity capital

In premises that were purchased using funds from maternity capital, the volume of shares for each family member is determined only by agreement.
Not only children, but also the husband or wife receive property - if they are not already the owners of a specific home.

If the parents’ shares in the ownership of an apartment or house have not yet been determined, then the agreement may contain conditions on the division of jointly acquired property between the spouses.

Moreover, the subject is a dwelling that is in common ownership, purchased or built. The share of an apartment or house purchased using money from capital is not jointly acquired property.

It is divided between parents and common children in accordance with the norms of current legislation. There are generally accepted rules for determining the size of shares. We are talking about the shares that children should be given.