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Not all parents took care of their children and often violated the rights of minors. It turned out that the housing was registered, but for some reason everyone forgot about the rights of minors. Therefore, there are certain risks of purchasing an officially privatized apartment.

Important! If a child finds out that his rights have been violated, he can go to court within three years. It turns out that the period for judicial protection is vague, therefore the danger for the acquirer remains.

Buying a privatized apartment will be successful if you take care of the correct paperwork. It is necessary to obtain consent for sale from children. The document confirms the absence of objections. When it is not possible to obtain such a document, it is better to refuse the purchase. Otherwise, you can be left without housing and money.

Video

Find out in the video whether it is possible to challenge the privatization of an apartment and under what violations the transaction is considered void.

Since 09/01/2014, the judicial practice in the Russian Federation has finally changed in cases of termination of the right to use residential premises (or, simply put, deregistration from an apartment) in relation to persons who refused privatization in favor of other family members/other persons registered in the apartment at the time of its privatization.

Let me remind you of the history of the issue - until September 1, 2014, in the event that a person (as an example - your relative), at the time of privatization was registered (registered) in the apartment and refused privatization in favor of others registered (registered) in the apartment (as an example - in your favor), then the courts considered that, in accordance with Art.

19 of the Introductory Law to the Housing Code of the Russian Federation, it was impossible to discharge him onto the street, Art. 31 Housing Code of the Russian Federation* and 292 Civil Code of the Russian Federation* (see.

link at the end of this article) were not applied to him. This person, who refused privatization, was like an eternal burden on the apartment - he could not be discharged even if the owner changed!, not to mention the case when he is discharged for not living in the apartment, lack of family relations, etc....

- he was like an “immortal tenant”, it was impossible to do anything with him. The only thing that could rid the apartment of such an “eternal tenant” was his death or voluntary discharge (of course, as a rule, not for nothing.

).

But now the situation has changed! On September 1, 2014, a Review of the judicial practice of the Supreme Court of the Russian Federation for January-July 2014 was published, in which the Supreme Court of the Russian Federation examined the situation in which the son refused privatization in favor of his father in 2005, while, as was established by lower courts, the son did not actually live in the apartment for more than 10 years and did not pay utility bills.

The father went to court to force his son to be evicted from his apartment; the father motivated his demands by saying that he was incurring increased expenses for utility bills, difficulties were arising with the sale of the apartment due to the encumbrance of his son, etc. All lower courts refused to release his son to the father, and the case reached the Supreme Court.

However, the Supreme Court of the Russian Federation overturned the decision of all lower courts and sent the case for a new trial.

The Supreme Court of the Russian Federation approached the study of the above case (father versus son) with all seriousness, and the judges of the Supreme Court can be understood... the problem of such “eternal residents” as the son has already become a big social problem.

Unscrupulous relatives and acquaintances who found themselves registered in the apartment at the time of privatization and refused privatization in favor of others, over time realizing their exceptional position as “eternal residents”, under no pretext did not want and do not want to check out of the apartment voluntarily, such grief-stricken relatives have already accumulated impudent people threaten to move into the apartment and create real hell for the apartment owners... Isn't this a familiar situation? At the same time, sometimes such “relatives” have a place to live, and most importantly, they live there... but they keep your apartment as if “in reserve.” So? Now you can fight them!

The Supreme Court indicated that the superficial consideration of such cases by lower courts was incorrect, the established ban on the discharge of those who refused privatization and the preservation of their right to use an apartment (in fact, eternal) is contrary to the spirit of the law and cannot be absolute, which is completely contrary to previously existing practice and makes it possible fight for your rights and discharge an unscrupulous tenant.

Of course, all of these disputes are purely evaluative in nature and convincing the court of the need to forcefully deregister a relative is not an easy matter, but! Until September 1, 2014, going to court to get someone who refused privatization out of their apartment was just not stupid; there was a legally enshrined prohibition that was not challenged by anyone and was not questioned by anyone.

Lower courts issued refusals to satisfy such claims and it seemed that there was no more hope.

After the Armed Forces of the Russian Federation actually abolished the indulgence (untouchability) of persons who refused privatization and an indication of what lower courts need to pay attention to when considering these cases - years have moved on, you can go to the courts with similar claims and now there are chances, there will be no more simple stamped refusals , the court will be obliged to examine your case and if it is indeed established that the person: does not live, does not pay, does not move in, etc. – then you can now write it out!

If you need the help of a lawyer for forced deportation from an apartment/room/house of someone who has refused privatization, please contact:

* part 2 art. 292 of the Civil Code of the Russian Federation - The transfer of ownership of a residential building or apartment to another person is the basis for termination of the right to use residential premises by family members of the previous owner, unless otherwise provided by law.

* part 4 of article 31 of the Housing Code of the Russian Federation - In the event of termination of family relations with the owner of a residential premises, the right to use this residential premises for a former family member of the owner of this residential premises is not retained.

• How can I get my share in a joint apartment back if we have been divorced for 10 years?
• How long can a donated 1/4 share in an apartment be returned?
• I gave up my share in the apartment, can I get some back?
• I sold a share in the apartment to my sister (we have different fathers and surnames). Is it possible to return the tax?
• Can I get my share in the apartment back if I didn’t even participate in the privatization?
• Second share in the apartment
• Donation of a share in an apartment
• Apartment share donation agreement
• Apartment share agreement
• Shares in a communal apartment

1.1. Galina We must assume that the bank’s collateral is exactly the apartment that you bought with the bank’s loan money (mortgage), and the collateral does not apply to other property.

2.1. Have you tried sending an application for permission by mail? All state organs are working. There is simply no reception of citizens. No one will reimburse you for the costs of the certificates.

3.1. If real estate is acquired in common shared ownership, the deductions provided for in paragraphs. 3, 4 tbsp. 220 of the Tax Code of the Russian Federation are provided to the parties taking into account their shares in real estate and taking into account the restrictions established by paragraphs 3 and 4 of Art.

220 of the Tax Code of the Russian Federation And the distribution of expenses for property deduction is allowed between spouses if the property is acquired as joint rather than shared ownership.

3.2. No, you can’t, he has already exercised his right.

4.1. Force your father to accept the inheritance, register everything in Rosreestr and convince your father to give you housing.

4.2. Unfortunately, you don't have many options. If there are grounds to challenge the gift agreement. Also read it carefully to see if there is a condition that the death of the donee cancels the donation. Otherwise, you have no chance. Good luck and all the best.

5.1. No one has any shares in a non-privatized apartment. You can go to court with a claim for occupancy.

6.1. no, in this case the right to a tax deduction will not arise, since the transaction was made between close relatives.

7.1. It is not the notary’s signature that is being appealed, but the refusal of the share itself.

8.1. A change of persons on the debtor's side of the obligation is possible only with the consent of the creditor, that is, the bank.

Expert opinion

Smirnov Alexander Stanislavovich

Lawyer with 12 years of experience. Specialization: civil law. Member of the Bar Association.

9.1. In this case, make him a written offer to purchase your share from you and set a realistic deadline for a response. If you do not receive a written response from him within this period, put your share up for sale to third parties.

10.1. 1. Yes. 2. Yes. 3. Just wait for the documents to be returned from Rosreestr. 4. If a mistake was made by the notary when indicating the shares in the agreement, then the notary must return the amount of money.

11.1. Valentina! Yes, the notary must return the money, but not all of it; he can take money for technical services (drawing out an agreement).

12.1. A very risky deal. The second share in the apartment is in dispute. Accordingly, concluding any transactions in relation to it (including a preliminary agreement) is illegal.

13.1. Only buy it back with the consent of the owner.

14.1. Elena! Indeed, since you are co-borrowers, the bank has the right to make demands for repayment of mortgage debt against any of you.

Therefore you will have to pay. Study the loan agreement - what does it say about the obligations of the spouses after a divorce? You, of course, have the right to recover from your ex-spouse 50% of the mortgage payments (if you have equal shares in the apartment) made by you after the divorce.

However, having accumulated a debt to you, your spouse may never pay. It will not be possible to foreclose on his share in the apartment if he does not have other housing.

And this share will not cover all your costs. Therefore, you are thinking correctly.

It is necessary to apply for division of property. Agree with your husband in advance whether he agrees to pay 50% of the mortgage or will still leave you the apartment.

Expert opinion

Smirnov Alexander Stanislavovich

Lawyer with 12 years of experience. Specialization: civil law. Member of the Bar Association.

14.2. You can sue for compensation for the amount of money actually spent in proportion to its share, for example 100 tr. for 1/4, that is, compensation is 25 thousand rubles. The share of common children is 50%.

15.2. No, you cannot deprive anyone of their property rights.

16.1. What are the shares in 1975? There was no such thing then. If you are needy and low-income, collect your documents and get in line.

16.2. You have no reason to return the share that your mother abandoned almost 50 years ago.

18.1. Elena! YES, it is possible with the consent of the guardianship authorities.

19.1. Unfortunately, there are no grounds for canceling the gift agreement.

Statute of limitations for filing a claim

A child who has already reached the age of majority can apply for protection of his rights. Three years constitute the period of protection from the moment the citizen became aware of the violation. The problem arises with the date when the rights were violated. But a citizen whose rights have been violated can prove that he recently learned about these violations.

But it is not necessary that the new owners will have to pay. Perhaps the court will decide that the father and mother who did not take into account the rights of minors should compensate the children for damages.

If there were violations during the registration of housing ownership, then further transactions with the property are considered invalid.

Do children have to be participants in privatization?

Until 1994, privatization was carried out according to different rules. Law No. 1541-1 of 07/04/1991 did not establish the obligation to privatize housing for minor citizens.

But if the mother and father decided on property issues in relation to their children, then incorrectly carried out privatization can be challenged.

In practice, judges very often refuse to satisfy plaintiffs' claims. The refusal is based on the fact that the plaintiffs took too long in filing the claim. In fact, they must convert immediately after turning eighteen.

The buyer of the living space could only declare that the time to go to court had already passed.

One year is given to protest a voidable transaction. This means that a citizen must be no later than 19 years old to declare that their rights have been violated.

Therefore, the purchaser of living space risks if the failed owners nevertheless declare their rights.

Is there really a risk?

When buying an apartment, the danger is still not so significant. After all, if the rights of a minor were violated in 1994, then now the citizen is already 22 years old. This means that the time for judicial protection of rights has already passed.

It will be very difficult to prove to a citizen that the living space was privatized with violations. The judges believe that a citizen after 18 years of age should have known for sure that his rights were violated. If you didn’t go to court sooner, it means you missed the deadline.

For this, we need a statement from the failed owners that they have no complaints. The date of signing the application will be considered the day when the citizen learned about the violation of his rights.

What you need to know when buying an apartment on the secondary market

If you buy from a developer the right to receive an apartment after the house is delivered, then on the secondary market you immediately buy ownership. It seems that there are fewer risks here, but this is only at first glance. Yes, the house has already been built and put into operation a long time ago, but there may be no less problems with documents. And if in new buildings the house may not be completed, then in secondary real estate there is a risk that the deal will be declared invalid by a court decision.

As in the example above with fraud, the seller will be required to return the money, but according to Ukrainian laws this can happen for decades. It is important to be able to correctly assess and identify risks when purchasing. They often arise as a result of the actions of the seller and related parties. There are risks that are critical and others that are not significant.

What you need to know when buying an apartment on the secondary market

The main things to check when buying an apartment on the secondary market:

• Title documents for the apartment
• Owners of the apartment and the right to sell the property
• Analyze the history of real estate acquisition
• Associated persons with the owners of the apartment - relatives, spouses, children
• Check for the presence of legal proceedings regarding the apartment and owners
• Check the legality of the contractual scheme for the sale of real estate
• Conduct a general analysis of the sale, the terms of the transaction and the words of the seller
• Identify and analyze hidden risks
• Assess risks not related to documents, but affecting the transaction

Mortgages, banks, courts, divorces, powers of attorney, fresh documents, terms of the transaction, intermediaries, notaries, seller's lawyers, relatives, heirs. Here you can list for a long time how many risks there are when purchasing secondary real estate. There are apartments with clean documents and your task is to find and purchase just such a property.

What is the main danger for the buyer?

When a privatized apartment is purchased, there are risks for the buyer if there are registered residents in the apartment.

Even if they did not take part in denationalization, they still retain the right to occupy living space. This right is granted if you have a residence permit. Therefore, it is necessary to carefully check the documents before the transaction. An extract from the house register contains information about all registered citizens. If there are citizens who cannot be discharged, then it is better to refuse to complete the transaction.

How to buy a privatized apartment?

The process of purchasing such housing occurs according to the usual rules in accordance with the provisions of Federal Law No. 122-FZ of July 21, 1997 “On state registration of rights to real estate and transactions with it”:

1. Documents are collected;
2. The parties sign an agreement;
3. The transaction is registered.

Documents that will be required:

• Privatization agreement confirming that the property has been transferred from municipal to private ownership. The list of documents on the privatization of an apartment is here.
• Document of ownership of the property being sold.
• A certificate stating that there are no debts related to the living space and its operation.
• Personal account (copy).
• Extract from the house register.
• Passports of persons participating in the transaction.

The above is a standard package that can be expanded. For example, if a minor who owns a share of the apartment is registered in the area, consent to the transaction from the guardianship authorities will be required. In addition, the rights of minors must be respected when privatizing an apartment. You should also order an extract from Rosreestr.

In a situation where square meters were inherited, instead of a privatization agreement, the following is provided:

• document on the right to acquire inheritance;
• a certificate from the tax office confirming that the tax has been paid (if there was a need to pay it).

It is permissible to expand the list of documents due to the following circumstances:

• Property rights of minors.
• The presence of co-owners if there was a shared privatization of the apartment.
• Presence of spouses (both former and present). Information on whether a spouse's consent is required when selling an apartment is in this article.
• Availability of persons with the right to use housing.

Where to make a deal?

Ownership is registered through Rosreestr or MFC.

The following documents will be required to obtain the right::

• Documents identifying both the seller and the buyer personally.
• Contract of sale. Find out where you can draw up a purchase and sale agreement for an apartment here.
• Application for transfer of rights according to the sample that can be seen on the Rosreestr website.
• Cadastral passport.
• The act of acceptance and transfer.
• A receipt confirming payment of the state duty.
• Consent to sell, signed by the seller’s spouse and certified by a notary.
• Consent of guardianship authorities and parents if the seller is a minor.

The registration authority has the right to request additional documents.

Registration must be completed within a period not exceeding 3 months from the date of receipt of documents. At the end of the specified period, the buyer acquires the rights of the owner.

How to make a safe transaction

The verification of documents must be approached very carefully. Pay attention to the basis on which the seller received the living space. This could be a purchase and sale agreement or a gift of real estate.

If the rights to the purchased property belong to both spouses, then notarial approval from the second spouse for the sale will be required.

Special attention should be paid to checking the seller's capacity. To avoid doubt, you can ask to receive a certificate from the IDP.

If the court finds that the seller was incompetent when signing the contract, the buyer risks being left without housing and money.

If the seller acts by proxy, then it is dangerous to buy a home. Even if the housing was privatized according to all the rules, the power of attorney itself may be fake. The owner himself may show up and challenge the sale.

Buyer's actions when buying an apartment

When purchasing any real estate, there are three stages:

• Search for apartments and best offers
• Apartment viewings, inspections and negotiations
• Registration and purchase

Search for an apartment and seller

This is a relatively safe stage. We advise you to look for real estate on independent websites where all offers are presented. This way you can have a rough idea of ​​the prices and compare different options in advance. There is a lot of information garbage from intermediaries regarding secondary real estate and new buildings. We described options for deception in a separate article.

Related article: How realtors deceive

When you understand what you want and how much it costs, you can move on to the next steps. If you are looking for an offer on the secondary market, then select 5-10 offers that you would like to see. If on the primary market, then decide on several developers from whom you would like to buy an apartment.

Apartment viewings, inspections and negotiations

There are different versions of how it is more profitable to buy an apartment. We all want to save money and be safe. With experience, we have come to options that allow us to obtain more favorable conditions for the client than when he contacts the seller or developer directly.

Sometimes it is more profitable to come to a developer or seller with a market participant if it turns out to be more profitable and they offer you additional benefits. On the condition that they do not take a commission from you or help reduce it. Like we do at GetHom. Below is an article on the topic of new buildings. For secondary real estate, we help reduce costs.

Related article: Why it is profitable to buy a new building through the GetHom sales department

Should I contact regular real estate agencies and intermediaries who ask for an additional commission on the price? It is your right. But this does not remove any risks of the purchase. This is simply a selection of options and an apartment seller who will charge you up to 5% of the cost in addition to the price of the apartment.

Verification of documents

Whether you are buying an apartment on the primary market or on the secondary market, in any case it is better to engage a specialized lawyer to check the documents. This may not always be in person, but a remote inspection is possible. This turns out to be more profitable and faster. If you are buying an apartment on the secondary market, then hire a lawyer to accompany your purchase and help you choose an apartment.

If you are buying an apartment from a developer, then order a verification of the documents of the required developers whom you have previously selected. After the lawyers’ conclusions, make a choice about who will be safer to buy an apartment from and where your money will be more protected. This is the most correct option. This way you eliminate significant risks and simply choose an apartment based on location, layout and other characteristics. The documents should have already been verified by this time.

Negotiations with the seller

At this stage, your task is to obtain the most favorable conditions for the transaction. To do this, you need to understand what conditions are possible, what rules exist in the market and where you can save money. In the secondary market, these are the terms of re-registration and the commission of possible intermediaries of the seller. You can and should save money on this.

When purchasing an apartment from a developer, these are the conditions for installment plans and stage-by-stage payment. These are small details that can save you thousands of dollars if you know how to ask for it and if it's possible. Try to communicate and negotiate if you do everything on your own.

At GetHom, we build our work on the principle that a real estate lawyer deals with documents and checks them, and a GetHom consultant helps negotiate the best terms because he knows the market well. We can provide you with remote legal support in any city in Ukraine. You can contact us, but you can find someone on your own.

Registration and purchase of an apartment

If you have ordered the services of a lawyer in your city, or contacted our company, the lawyer will help you at all stages. For those who decide to go the route on their own, you need to figure out how the transaction is generally carried out and what documents will need to be signed.

In the secondary market, ownership is transferred from the seller to you. This is done by a notary. For this, you only need a passport, identification code, to whom the purchase will be made and money. The seller's ownership may vary. Main types:

• Purchase and sale
• Mena
• Inheritance contract
• Donation agreement
• Donation
• Rent
• Lifetime maintenance
• Privatization
• The court's decision

The notary will formalize the transfer of ownership and issue you a certificate. It is important to choose your own notary and not agree to the seller’s offers to complete the transaction with his authorized representative. This way you will reduce risks and the transaction will be more secure.

The seller’s notary may be a fraud, but if you have checked the documents with a lawyer and he is present in the transaction, then this scenario is unlikely, because the documents are in perfect order and the lawyer will tell you who to contact.

What you need to know about paperwork when buying an apartment from a developer

Each developer has its own type of contract and scheme for selling real estate. Everyone’s agreements are different and you need to carefully read the agreement and study the real estate investment scheme. The main types used by developers:

• Preliminary purchase and sale agreement
• Investment agreement
• Contract for the sale and purchase of property rights
• Joining a housing cooperative or housing construction cooperative
• Assignment agreement
• Construction Financing Fund or FSF

Some contracts can be registered by a notary, while others you simply sign at the developer’s office. There, at the construction company’s office, you pay the money into the cash register and thus invest in real estate. To purchase, you only need a passport and a code.

After putting the house into operation, you will sign the transfer and acceptance certificate and the developer will issue documents to register ownership. But for this, the house must be completed and delivered. After depositing money into the cash register and signing the contract, you simply wait for the house to be delivered.

Nuances of legislation

As a general rule, to purchase a home, it is enough to sign a purchase and sale agreement. However, if a share of real estate is alienated, then notarization is a necessary condition.

When selling a room, there are citizens who have the first right to purchase. If the seller did not notify the other owners, the transaction may be contested. Again the buyer is at risk.

Proper execution means that the seller must send out notices, then wait a month for a response. If no one agreed to buy the room at the proposed price, then you can enter into an agreement with third parties.

What rights do “refuseniks” have to living space?

The law does not directly regulate relations with those whose rights were not taken into account during the denationalization of property.

The Supreme Court gives the answer. The “refuseniks” retain the right to lifelong ownership of property. After all, their refusal meant that they did not acquire ownership rights, but retained the right to use housing for the rest of their lives.

The ex-husband and wife lose the right to use the property. But there are no “refuseniks”. Therefore, it turns out that the new acquirer will not be able to evict those who refused to participate in privatization.

The problem of eviction of failed owners is very difficult to solve. Therefore, it is better to refuse the deal if “refuseniks” are registered.

The purchase and sale agreement includes a clause regarding citizens retaining the right to use the property. If such a condition is not specified, then it is considered that the contract has not been concluded. Whether or not to agree to sign such an agreement is a personal matter for the buyer.

However, it must be taken into account that by signing, he agrees to allow other citizens to live in the purchased housing.

Therefore, it will not be possible to submit demands to the seller to remove citizens from registration. After all, the contract initially indicated that after the sale, citizens with the right of residence would remain.

To avoid problems, it is better to ask “refuseniks” to leave a written statement that they are leaving and renouncing their rights to the apartment.

Legal director general Ilya Chuverov answers:

A prerequisite for the privatization of state or municipal housing is the consent of everyone who lives in it. Including those under 18 years of age.

It is simply not possible to exclude a child from privatization, since this requires the consent of the guardianship and trusteeship authorities, and this is practically impossible. If the resident is under fourteen years of age, guardians or relatives are required to submit an application for privatization in his place on his behalf.

Expert opinion

Smirnov Alexander Stanislavovich

Lawyer with 12 years of experience. Specialization: civil law. Member of the Bar Association.

The curiosity of privatization is that for children the moment when they were born is of great importance: before or after privatization. The eldest child, born before privatization, is a full owner, together with his mother.

But the youngest, born after the privatization process was completed, is not considered an owner, since children do not have ownership rights to the property of their father and mother. However, the child will be able to obtain this right if the property passes to him through the process of donation or inheritance.

As for the issue of selling this living space, according to the law, the mother has the right of ownership to the share, just like the eldest son, who was born before the privatization process. Therefore, she is not able to sell all the housing; she only has the right to sell her part of the housing.

The eldest son has the pre-emptive right to buy out this share. Only if he does not use this right, the mother can legally carry out the sale.

The consent of the second son to sell shares is not required at all. It is important to know that, along with the owner of the property, all members of the owner’s family have an equal right to live in it.