Transactions Required for Notarization 2020

Competent loan processing

As a rule, when receiving borrowed funds, the debtor writes a receipt for their receipt, which indicates the amount and period of repayment. The lender (the person who lent the money) is often confident that this is enough to confirm his rights. Indeed, a receipt is a document that can be presented to the court if it contains all the necessary information to establish the existence of a debt.

Unfortunately, the receipt often forgets to indicate other essential conditions: the interest rate on the loan, the frequency of repayment if the debt is to be paid in installments, passport details and place of residence of the borrower. If he violates the agreement and payment terms, the creditor has the right to go to court.

Moscow notary Kolganov I.V. comments:

“This is a troublesome procedure that takes a lot of effort and time. If you certify the loan agreement with a notary, the debt collection procedure is significantly simplified.”

What can be the subject of a loan

In most cases, the subject of the loan is cash, but this is not necessary. Raw materials, materials, and other things and items can be provided on loan. In addition, according to Art. 818 of the Civil Code of the Russian Federation, debt on rent (real estate, production tools), as well as that arising as a result of a purchase and sale agreement, can be replaced by a debt (loan) obligation.

An agreement (document) on borrowing relations is drawn up between legal entities and individuals. At the same time, the notarized form of the loan agreement is not mandatory; it is certified voluntarily, by agreement of the parties.

List of transactions subject to mandatory notarization

Representation by proxy. Required for legal transactions that require mandatory registration with a notary, submission of statements, disposal of powers and other actions established by Art. 185 of the Civil Code of the Russian Federation. For a power of attorney providing for the transfer of powers, there is a form drawn up by a notary (Article 187 of the Civil Code of the Russian Federation). This rule does not apply to documents issued by organizations or their heads.
Collateral obligations. The agreement is prepared in a simple written format, but its certification by a notary office is regulated by Art. 22 FZ-14, when a share or part thereof in the authorized capital of an LLC is pledged. If he ensures the fulfillment of obligations under a notarized agreement, then the document must also be certified by the appropriate specialist (Article 139 of the Civil Code of the Russian Federation).
The assignment of rights of claim arising from obligations formalized in notarial form is carried out in the same way (Article 389 of the Civil Code of the Russian Federation).
The transfer of debt obligations requires compliance with the rules established by Art. Art. 389, 391 Civil Code of the Russian Federation.
Rent. An agreement to transfer a property for payment of maintenance must undergo a registration procedure (Article 584 of the Civil Code of the Russian Federation).
Will. It is drawn up in the form of a document and certified by a notary office.
Consent of husband/wife. If one of them participates in transactions for the transfer of property rights that need to be entered into the Unified State Register, the notarized consent of the other spouse will be required (Article 35 of the Civil Code of the Russian Federation).
Marriage contract.
Agreement on the fulfillment of alimony obligations (Article 100 of the Civil Code of the Russian Federation).
Transfer of shares in the right of common real estate. Does not apply to procedures related to property included in a mutual fund involving investments, or purchased for inclusion in it, the sale of land areas, as well as general ownership of real estate.
Carrying out operations to dispose of property objects with the participation of guardians, minors or partially incapacitated persons.
Sale of part of the authorized capital of the organization.
A partnership agreement with the participation of investments, implying the implementation of joint measures, the transfer of powers and obligations under it.
Partnership management agreement and amendments to it.
Alienation of a share in the formed partnership fund.

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Here it is necessary to take into account that the party that avoids formalizing obligations under the agreement acts as an unscrupulous subject and allows the abuse of its rights. The other needs protection, since she has fulfilled her obligations in one form or another, but cannot formalize them in the manner prescribed by law.

Benefits of notarizing a loan

To protect yourself from possible troubles, the lender prefers to draw up an official document. Certification of a loan agreement by a notary provides many advantages:

the text will indicate all the necessary details of the borrower (passport details, residential address)
the interest rate for the use of borrowed funds and the procedure for its payment to the lender (usually monthly);
the notary will check the borrower’s documents against the database of the Ministry of Internal Affairs and the bankruptcy register, which eliminates the falsification of documents;
the parties are explained the provisions of the Civil Code of the Russian Federation on the procedure for granting and repaying loans;
If the borrowers fail to fulfill their obligations, the lender may contact the notary for affixing a writ of execution.

A notarized loan agreement between individuals or, in the case where one of the parties is an organization, relieves the lender of the need to go to court if the borrower fails to pay the debt. The notary's writ of execution gives the loan agreement the force of an executive document. The creditor can submit it to the bailiff service or to the enterprise where the debtor works, as well as to the credit institution where the borrower has an account. The funds will be written off to repay the debt unconditionally.

Transactions subject to mandatory notarization

The written form is an expression of the will of the parties to the transaction by leaving a document reflecting the contents signed by the persons entering into the transaction (Article 160 of the Civil Code of the Russian Federation). The notarial form differs from a simple written form in that on a document that meets the requirements listed above, a notary or other official who has the right to perform such a notarial act makes a certification inscription (Article 163 of the Civil Code of the Russian Federation).

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Article 153 of the Civil Code of the Russian Federation gives the concept of a transaction as actions of citizens and legal entities aimed at establishing, changing or terminating civil rights and obligations. A transaction is a combination of will and expression of will. Due to the fact that a transaction presupposes the intention of a person to acquire certain legal rights and obligations, the desire of the person entering into the transaction is necessary for its completion. This desire is called internal will, which must be brought to the attention of others. The way to express inner will is expression of will. The expression of will takes the form of a certain action - signing an agreement, drawing up a will, issuing a power of attorney, etc.

What are the benefits of a notarized loan?

Borrowing money from an individual (legal entity) has significant advantages compared to a bank loan. As a rule, the bank requires a certificate of income, the involvement of guarantors, and collateral. In addition, the interest rate changes depending on specific conditions (income level, loan term), the decision can take a long time. If it is negative, an entrepreneur or private individual who urgently needs money will waste time.

At the same time, a loan agreement between individuals is certified by a notary on the day of application, which significantly simplifies the borrower’s task.

Moscow notary Kolganov I.V. comments: “The creditor more easily agrees to such a transaction, knowing that he receives guarantees of debt repayment through the use of the writ of execution mechanism. The debtor, in turn, protects himself from unfounded claims: unexpected increases in interest rates, demands to return the money ahead of schedule.”

Rules of the Civil Code on loans

If the borrowed amount is over 10,000 rubles, a written agreement must be drawn up between individuals. When one of the parties is an organization, the agreement under any conditions must be written, regardless of the size of the loan.
The date of conclusion of the agreement is considered the day of transfer of money (things), which is confirmed by a receipt or other document confirming their receipt by the borrower (an act indicating in the agreement that the subject of the agreement has been transferred and received).
Before notarizing the loan agreement, the notary will make sure that the amount is indicated in ruble equivalent. Foreign exchange transactions in private relationships are not permitted.
The document must specify the procedure for repaying the debt: in parts, in full and terms, as well as a condition on interest. If the loan is interest-free and its size is over 100 thousand rubles, this must be indicated directly. If there is no indication, interest is charged at the Central Bank rate in the general manner.
If the loan agreement certified by a notary does not indicate a repayment period at all (on demand), then the creditor can demand the debt only after a written warning to the debtor 30 days before the day the demand is made.

Features of calculation and payment of interest

The lender and the borrower agree on the presence (absence) of interest for the use of money (things) at their own discretion. In this case, the provisions of the law must be taken into account.

If the amount does not reach 100 thousand rubles, and the agreement does not indicate interest, the loan is considered interest-free;
If the loan size exceeds the above limit, the general rule applies: the rate (or lack thereof) is directly specified in the contract, otherwise the calculation is made at the Central Bank rate (5.5% as of July 2020);
Interest can be paid in any order under the agreement: monthly, along with the payment of part of the debt, or at the end of the contract;
If the debt is paid in installments, the creditor has the right to demand early repayment of the entire amount if the partial installment is not paid within the agreed period;
With an interest-free loan, the borrower has the right to repay the entire amount ahead of schedule;
The amount of interest received by the creditor is a financial benefit. Income tax is calculated and paid from it.

If the parties decide to draw up a loan agreement with a notary, they will be explained all the provisions of the law and warned of the consequences of failure to fulfill the agreement. If a legal dispute arises, a notarized agreement is the main evidence in court, and the fact of the loan does not require additional confirmation (proof).

In the case where the notarial loan agreement does not include provisions on liability for late payment, the default rule applies: penalties are charged on the overdue amount for the period from the established payment date to the date of actual repayment. Interest corresponds to the key rate of the Central Bank for the calculation period.

Penalties (fine) are not collected if the agreement establishes a penalty for delay in debt payment, unless otherwise provided by law or agreement (Articles 395, 811 of the Civil Code of the Russian Federation).

Cancellation of notarization of transactions with shares from August 1, 2020

Meanwhile, the State Duma adopted in the second reading a bill banning the sale of micro-shares in apartments. This document provides a rule according to which the formation of shares may be limited. The size of the share should allow the owner to exercise his rights to move in, subject to the established housing accounting standards. There are also exceptions to this rule: privatization, inheritance, the emergence of shared ownership in accordance with the law.

Legislative basis

Federal Law FZ-218 “On State Registration of Real Estate,” adopted only in 2020 (and which came into force in 2017), has already been amended several times. In 2020, amendments were made that introduced mandatory notarization of transactions for the alienation of shares. And here are the new changes: from August 1, 2020, the mandatory notary for transactions with shares is cancelled. However, according to the new law, this rule does not apply to all transactions, but only to part of them. In addition, Federal Law No. 218 specifies cases where notarization is still required. That is, the changes are not universal. Read more in the article.

The donation transaction must be registered in accordance with the norms of current legislation. The authority to perform the action is vested in Rosreestr. However, the department of the government body is quite small. Therefore, the function of Rosreestr is taken over by the multifunctional center. If a citizen wants to register a donation, he must visit the nearest branch of the organization and submit the necessary documents for registration.

This issue is usually dealt with by real estate agencies or notary offices. The seller of an apartment may also need the services of an agency in order to create advertising, find a buyer and competently complete the transaction. If an agreement is reached between the buyer and seller, the transition to documenting the transaction occurs.

How to correctly draw up a contract for the sale and purchase of an apartment yourself, through a notary or a real estate agency in 2020

18) Income in cash and in kind received from individuals through inheritance, with the exception of remuneration paid to the heirs (legal successors) of the authors of works of science, literature, art, as well as discoveries, inventions and industrial designs;

The significance of innovation cannot be underestimated. Shared ownership is quite common in the Russian Federation; according to Rosreestr, more than 65 million rights of common shared ownership of individuals are registered in the Unified State Register of Real Estate.

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In the original version, even before the latest changes, exceptions had already been made regarding the mandatory use of notarization of transactions for the alienation of shares in the right to real estate. In accordance with Part 1 of Art. 42 FZ-218 transactions with shares that do not require notarization are the following transactions:

Which transactions with shares in real estate require notarization?

According to the norms of Federal Law-76, it is now possible to additionally buy or sell a share without a notary if all co-owners simultaneously enter into one agreement on the alienation of their shares or a mortgage agreement. This is the essence of the latest change, which was announced with loud phrases “notarization of transactions with real estate shares is canceled in 2020.”

We have previously written about the introduction by law of notarization of transactions for the alienation of real estate No. 391-FZ of December 29, 2015. However, already in June and July 2020, further amendments were adopted, which excluded the mandatory notarization of transactions for the alienation of land shares and transactions for the disposal of real estate under trust management conditions. Another important change: if from January to 06/02/2016.

For the form of transactions for the alienation of real estate (purchase and sale, exchange), Article 550 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation) establishes a special requirement - they are made in writing - simple or notarial, and are subject to state registration. At the same time, transactions are mandatory in cases specified in the law, as well as in cases provided for by agreement of the parties, at least by law this form was not required for transactions of this type. Federal Law of July 21, 1997 No. 122-FZ “On State Registration of Rights to and transactions with him" (Articles 24, 30) a mandatory notarial form is established for transactions: - on the alienation of shares in the right of common ownership of real estate, including the alienation by all participants in shared ownership of their shares in one transaction; - on the alienation of real estate, belonging to a minor citizen or citizen,

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. From now on, in accordance with this legal act, the following types of transactions must be notarized: Property transactions, one of the parties to which is a minor citizen. Transactions made by incompetent persons or legal representatives on their behalf. Property transactions made by any

Free consultation by phone » » » » Contents Real estate transactions are currently gaining increasing popularity among contracts concluded on the market. And these are not only classic options with the purchase and sale, rental or donation of the entire object, but also with its shares. It was a large number of such agreements that led to amendments to the current legislation in order to establish the need for notarization of transactions with any form of real estate.

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It should be taken into account that a transaction means checking the legality of the transaction, including whether each party has the right to complete it, which is carried out by a notary or an official who has the right to do so, in the manner established by the law on notaries and notarial activities. According to the Fundamentals legislation of the Russian Federation on notaries

Sale of premises in a building: is it now necessary to notarize such a transaction?

Notarization of transactions is not a mandatory procedure in most real estate transactions. Participants in the transaction can independently draw up a contract of purchase and sale, donation, exchange, allocation of shares and affix it with their signatures, with its decoding. After signing this document, the transaction (alienation and acquisition of rights to real estate) is concluded.

How to draw up a loan agreement through a notary

The form of agreement between the lender and the borrower provides for the inclusion of the following main provisions:

description of the item (amount of money, things, items);
deadlines for fulfilling obligations (schedule for installment plans);
procedure for calculating and paying interest (if provided);
rules for resolving conflict situations;
liability of the parties for violation of the contract;
identification data of the parties.

In practice, private loans against a notary receipt are the most common, but there can be many options. Often contracts include a collateral clause, then in addition to the main document, a collateral agreement is drawn up.

If real estate is used as collateral, the loan agreement must be notarized - this is a legal requirement.

The text of the agreement must indicate which party actually has the collateral. The second case, also often encountered in practice, is a notarized loan between the founders and the management of the LLC. As a rule, an interest-free agreement is drawn up, which must be expressly stated in the document.

Notarization

Certification of an agreement by a notary may be required not only by state law, but also by the parties to the agreement, who have every right to secure such a condition. The possibility of including such a requirement in the text, which specifies the notarization of the transaction, is mandatory and is not determined by whether or not registration of the document will be necessary after that.

A power of attorney to carry out transactions that require a notarial form, to dispose of rights registered in state registers, to submit applications for state registration of transactions and rights must be certified, excluding only cases provided by law. A power of attorney issued as a power of attorney must also be notarized. The rule on notarization of those powers of attorney that are issued as a subpoena by individuals does not apply to powers of attorney given as a subpoena by legal entities, as well as by the heads of their representative offices and branches.
Notarized pledge agreement. It can be concluded in ordinary written form, which is provided for, for example, in Article 22, paragraph 2 of Law No. 14 “On Limited Liability Companies”. It states here that the agreement to pledge a share or part thereof in the authorized capital of the company must be certified. A pledge agreement to secure the fulfillment of obligations under an agreement, which must be notarized, is subject to notarization.
The assignment of a claim, which is based on certification of the transaction in notarial or simple written form, must be made in appropriate writing.
Transfer of debt to which, from a formal point of view, the rules established at the legislative level apply.
The rent agreement must be notarized, and the agreement for the alienation of real estate for the payment of rent must also receive state registration.
The will must be in writing and certified by a notary. Its preparation in ordinary written form may only be allowed in rare exceptional cases provided for by law.

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What to do if the debtor becomes bankrupt or dies

Both a legal entity and an individual, including an individual entrepreneur, can be declared bankrupt.

If the loan agreement was drawn up through a notary, the lender, based on the application, is included in the register of creditors. You need to contact the temporary (administrative) manager within 2 months after the publication of information about the debtor’s bankruptcy on Fedresurs or other publications (“Kommersant”).

If the borrower dies, the debt is legally transferred to his heirs. They are obliged to pay it within the value of the inheritance received.

How much does it cost to draw up a loan agreement with a notary?

For notarial acts, a tariff (state fee) is paid in accordance with the Tax Code, plus legal and technical services or UP&T are paid. Under loan agreements with a notary, the price of technical work is 5,000 rubles, and the amount of the state duty depends on the amount of the transaction:

up to 1 million rubles - 2,000 rubles. plus 0.3%;
up to 10 million - 2,000 rubles. plus 0.2% of the amount exceeding 1 million;
over - 2,000 rub. plus 0.1% on an amount exceeding RUB 10,000,000, maximum RUB 500 thousand.

*see current rates in the appropriate section

Certifying a money loan agreement from a notary will cost less than paying possible court costs and legal fees if it is necessary to collect a debt from an unscrupulous borrower. The use of a writ of execution saves time and does not allow the debtor to transfer assets to dummies.

The notary office of Igor Vladimirovich Kolganov is located at st. Mnevniki, 23, open daily until 20:00, and also on Saturdays until 17:00. Please contact the telephone numbers listed on the website to arrange a convenient appointment time to certify a loan agreement between individuals (legal entities), including urgent ones, in urgent situations.

Four mortgage options that now require a notary

Most of the provisions of the mentioned law 338-FZ come into force in 2020 and 2020. And these provisions have already been repeatedly commented on by lawyers and politicians. However, the norms that have already entered into force remained almost unnoticed by the expert community. In particular, we are talking about mandatory notarization of mortgage agreements for shares in the right of common ownership of a real estate property. Law 228-FZ amended Part 1 of Art. 42 of the Law “On State Registration of Real Estate”. Now it contains the phrase: “Alienation transactions or mortgage agreements for shares in the right of common ownership of real estate... are subject to notarization.”

In turn, Natalya Mikhailyukova, , notes that even before Federal Law 338 came into force, mortgage agreements in transactions with shared ownership were, as a rule, notarized. However, this rule was not formally stated, and there could be cases when the mortgage agreement passed by the notary.

08 Feb 2020 juristsib 779

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