Is it possible to sell my part of the apartment? The procedure for selling a share in an apartment to a new owner. ○ Gift agreement

Economist. More than 15 years of experience in finance. Date: March 15, 2018. Reading time 9 min.

The shared real estate market operates according to special rules. The seller of a share in an apartment will need to study them in order to conduct a legal transaction for its alienation. Co-owners have the right of first refusal to purchase a share, and the purchase and sale agreement must be certified by a notary. Special cases include the alienation of a child’s share or part of a mortgaged apartment.

The opportunity to sell part of the apartment corresponding to the owner’s share leads to many conflicts and abuses. There are several bills in the State Duma’s “bins” designed to restore order in the share market. One of them belongs to a group of United Russia deputies led by Pavel Krasheninnikov. They, in particular, propose to limit the purchase and sale of microshares - less than the regional accounting norm. The document also introduces a serious restriction on the move-in of 3 persons into a living space divided between several co-owners.

But for now, the sale of apartments in shares is carried out according to the old rules. Let's look at which ones exactly.

The owner of the share who wants to sell it will have to act in stages. Only the methodical fulfillment of all necessary requirements will allow the seller to conduct a clean transaction that cannot be challenged.

Compliance with pre-emptive rights

Co-owners of shared real estate have the advantage of purchasing the part of the apartment being sold. The co-owner is first obliged to make a written purchase offer to them, indicating the cost and other terms of the transaction.

218-FZ can be found here. Revision of the document dated February 28, 2018.

An approximate list of documentation that the owner of an apartment share needs to prepare is shown in the table.

Table 1. List of documents for the notary who will certify the transaction

The list of documents required for the sale of a share in an apartment provided to a notary may be supplemented depending on the requirements of a particular office or the presence of special circumstances significant for the execution of the transaction. In particular, if the share is sold by a family person, he will need the written consent of the spouse to alienate part of the real estate.

The buyer may also require additional paperwork. The most common document he is interested in is a certificate from a psycho- or drug dispensary confirming the sanity and adequacy of the seller.

Mutual settlements between buyer and seller

The equity holder and the buyer can agree differently on at what point and how the settlement between them is carried out. The conditions are specified in the text of the contract. As a rule, the money is transferred to a neutral party - a bank or notary. The seller will be able to take them back only after the buyer becomes the full owner of the share, which will be confirmed by the relevant document.

A popular method of mutual settlement is depositing money into. In this case, the funds are “frozen” in a special bank account opened for a specific notary employee. If, within the period specified in the contract, the right to own, use and dispose of the shares does not pass to its acquirer, the money will be given to the buyer.

Typically, banks accept the specified amounts only after signing all documents, including the purchase and sale agreement. In order for the seller to feel confident, lawyers recommend indicating in his text that the papers for registering ownership rights are transferred only after depositing money for the purchase of the share.

Registration of a transaction

The rights of the new owner are registered with the Rosreestr authorities. The parties to the agreement can either send documents there themselves (along with an application for registration), or do this through a notary. With the second option, you will have to pay for the service. Exactly how much it will cost should be clarified at the notary’s office, since there are no uniform prices.

Pay attention! Notarized transactions are registered faster – within three business days. If documents were transferred to Rosreestr electronically, the time is reduced to one working day.

The buyer must submit a transfer deed for the apartment to the registration authority. Without this document, officials will not register ownership of it.

Receipt of documents by the parties

The transfer of ownership to another person is recorded in the Unified State Register of Real Estate. A note about this fact is also placed on the purchase and sale agreement, copies of which are returned to the buyer and seller. They also receive:

• extract from the Unified State Register of Real Estate;
• cadastral passport.

After this, the transaction to acquire a share in the apartment is considered completed, and the right of its new owner is registered. The received documents are the basis for issuing the buyer’s “frozen” money to the seller.

Special cases

Let's briefly look at how the law regulates various nuances of such transactions.

How is the share allocated?

Any of the participants in the common ownership of the apartment has the right to allocate a separate share, which he can dispose of at his own discretion. This can be done:

• in a contractual (voluntary) manner;
• through the court.

If there is no conflict between the co-owners of the apartment, they have the right to draw up an agreement with a notary, voluntarily distributing shares. This document will serve as the basis for re-registration of property rights in Rosreestr. The USRN will record the specific size of the share of each co-owner.

When an agreement cannot be reached, the case is referred to the court. If the applicant's share is too small or cannot be allocated in kind, a decision is usually made to pay the plaintiff monetary compensation by the other co-owners of the apartment.

The need to allocate a share often arises in relation to a once privatized apartment, when all parties to the agreement were included in the certificate of ownership. If one of the relatives - shareholders in the future wants to dispose of their part of the housing, he will need to separate it from the common property.

Is the consent of co-owners required to sell a share?

In relation to other co-owners of the property, the seller is limited only by observing the right of first refusal. If the co-owners refused to buy out the share or did not respond to his offer within a month, he has the right to sell it to anyone. He does not require written or oral permission from other shareholders.

Sale of a minor's share

You can sell the share of a minor child only with written permission from the guardianship authorities. Before registering it (or refusing it), officials will find out where the child will live in the future, in what conditions, etc.

To obtain permission, the parent or other representative of the child should contact the local administration and write an application (for the issuance of the required document). The issue is resolved within 15 days from the date of its submission.

Apartment with mortgage

If the co-owner of an apartment taken on a mortgage wants to sell his share, he must keep in mind that this cannot be done without the consent of the creditor bank - the living space is pledged to him. If the bank responds positively to the new owner, the loan agreement is reissued, and he will repay the remaining debt.

When selling a share in a mortgaged apartment, the remaining co-owners also have a preemptive right to buy it. Only their refusal or a month’s silence will allow the shareholder to sell his share to third parties.

Taxation of the transaction

Since the income from the acquisition of a share by the new owner is received by the seller, the obligation to pay tax falls on him. As a general rule, for Russians it is 13%.

However, in some situations you do not need to pay it. Personal income tax is not charged if the seller became the owner of the share before January 1, 2016 and owned it for at least 3 years. If he acquired ownership of a part of the apartment later, he will not be able to pay tax on income only after 5 years of ownership of the share. However, it matters on what basis the seller became its owner, since for some of them a 3-year period has been retained, namely:

• by inheritance;
• by deed of gift;
• under a lifelong maintenance agreement for the former owner (or annuity);
• on the privatization of public housing.

He also has the right to exercise the right to deduct 1,000,000 rubles (regardless of how long he has been the owner of the share). That is, the tax is paid on the price that remains after deducting this amount.

The buyer of the share acquires not only the right to live in the apartment, part of which he bought, but also the obligation to pay tax on it annually (on the property of individuals). Only belonging to preferential categories of citizens will save him from this mission.

Higher education. Orenburg State University (specialization: economics and management of heavy engineering enterprises).
March 15, 2018.

Despite the fact that the share does not represent an integral piece of real estate, it is subject to all the powers of the owner: use, own and dispose of.

The owner can also dispose of the share through sale. The algorithm of actions is as follows:

Step 1. Offer the purchase of a share primarily to other apartment owners

Such persons have the right of first priority, that is, preemptive purchase at the price set by the seller. (Article 250 of the Civil Code of the Russian Federation, Part 1).

The notice shall be made in writing, specifying the price and other conditions). If several participants have expressed their willingness to buy a share, the seller formalizes the sale in proportion to the shares of the buying participants.

If none of those notified expresses a desire to buy a share, or everyone directly refuses, the owner receives the right to sell to anyone (clause 2 of Article 250).

Step 2. Preparing and completing a transaction

In various ways (advertisements, etc.), they conduct showings, conduct negotiations and prepare documents for registration.

In this case, the seller has the right, after a month from the moment of notifying other owners, to sell to any person, or before the expiration of this period, but subject to providing the notary with refusals of all other owners from the purchase (clause 1 of Article 24 of Federal Law No. 122). The transaction itself must be carried out by a notary (FZ-122).

The contract includes information about the parties (buyer and seller), a description of the real estate (shares in the apartment - number, address, total/living area, etc.), price (in accordance with Articles 554-555 of the Civil Code of the Russian Federation). If there are restrictions on the premises, the rights of third parties, this is also indicated. An annex to the agreement is a transfer deed or another similar document (Article 556 of the Civil Code of the Russian Federation).

Step 3. Registration of transfer of ownership (according to Articles 131 and 551 of the Civil Code of the Russian Federation)

13. How to sell a share in an apartment by proxy and where to download a sample?

If the owner/owners cannot or do not want to sell the share or register it themselves, they have the right to issue a power of attorney to perform such actions to another person (of course, subject to trust in him/her). This action is regulated by Art. 185 of the Civil Code of the Russian Federation. A power of attorney for the transfer of powers to carry out transactions with property must be notarized (for this, the passport data of the parties is required).

Before visiting a notary, there is no need to prepare a power of attorney yourself (or download it from any website) - everything will be done in the notary's office. You just need to decide what kind of actions are entrusted (full power of attorney, irrevocable, with the right to receive funds or not, etc.).

The sale of a share of an apartment, due to the fact that there are other owners, has a number of features that must be observed so that the transaction does not get upset or is not disputed later. First of all, you should not neglect your responsibility to offer to buy a share to other apartment owners. Only after all shareholders have been notified/have refused the purchase can the property be sold to any interested party.

How to sell a share without the consent of other owners? Reply to video

Situations when it is necessary to sell a share, but other owners deliberately “put a spoke in the wheel” are not uncommon. What are some ways to legally bypass the need for a permit? Consulted by a practicing lawyer.

The question is relevant for any citizen who participated in privatization together with family members. How to sell a share in a privatized apartment without infringing on the interests of co-owners?

Sale of shares in a privatized apartment according to the law

As a result of privatization, if several residents participated in it, the apartment becomes their common possession. Each of them is entitled to a share (usually equal, unless a different agreement was concluded during the privatization).

By law, each of the co-owners has the right to dispose of their share as they wish. However there are some restrictions:

• anything can be done with the apartment (sell, donate, exchange, undergo major repairs) only by all the owners by a common decision: if one does not agree, neither the transaction nor any other order is possible;
• When selling one of the shares, the co-owners must be first on the list of candidates for purchase.

Thus, if one of the owners thinks about how to sell a share in a privatized apartment, he must first notify the other co-owners of his desire and inform them at what price he is selling. Only after this, if they are not going to buy, does he have the right to enter into an agreement with outsiders.

Thus, the sale of a share should look like this:

1. The owner-seller determines for himself at what price he is going to part with his property, and finds a buyer who agrees to this price.
2. Before concluding an agreement with the buyer, he notifies the other co-owners of the apartment about the planned sale. The notification must only be in writing - even if everyone lives in the same apartment and sees each other in person every day.
3. The owners decide whether they want to buy out the share themselves. The law sets a strict deadline for their reflection - no more than a month.
4. If the co-owners do not want the share to go to a stranger, they are obliged to buy it back at the price and on the terms on which the seller was going to enter into an agreement with a buyer who is not one of the co-owners.
5. If a refusal is received or none of the co-owners decide to buy out the share within a month, the seller has the right to enter into an agreement with an outsider.

How to sell a share in a privatized apartment and not make a mistake?

The sale of a share itself is concluded according to the same rules as any other real estate transaction: in writing through Rosreestr with payment of state duty, etc. However, there are some nuances that can significantly ruin the life of the seller. Let's figure out how to avoid them.

The first of the pitfalls may be the case when the seller has already concluded an agreement, but one of the co-owners stated that he was not notified that the transaction was planned and, accordingly, did not give his consent. Within 3 months, he can file a lawsuit and demand that the court rule on the invalidity of the contract.

Don't know your rights?

There is only one way to counteract this - to carefully document everything that is done. Notification of the planned sale is only by registered mail with a list of the attachments. If the notification is made in person, prepare a document with the terms of sale in 2 copies and require the co-owner to leave a signature on one. The waiver of the right to purchase is best certified by a notary. With this option, no future claims will help the litigant.

The rule of warning and advantage does not apply only to gifts. However, it should be taken into account that an attempt to use a gift to disguise a sale (the owner of a share gives it to a stranger, and he, in turn, then gives him money, since this is not prohibited) may not end exactly as the parties expect. One of the co-owners of the apartment may try through the court to recognize such a deal as sham - and he will have every chance of winning the case. According to the law, the rules for a sham transaction are those established for the one that the parties tried to hide. In this case, it will be a purchase and sale - without the consent of the co-owners or their refusal to buy it, it will be invalid.

The second option is more likely to refer to the tricks of the seller. Some, in order to avoid hassle with a warning, draw up an exchange instead of a sales contract. It is categorically not recommended to do this: the rules regarding advantages will apply to me. This is due to the fact that the legislator proceeded from the desire to either preserve the circle of co-owners, or to help ensure that their circle gradually narrows. Therefore, even in the case of exchange, the stranger must first obtain the consent of the existing owners.

The third “cunning” scheme looks almost legal:

1. The owner of the share borrows money, indicating his share as collateral.
2. He does not return the money on time.
3. The lender demands the transfer of the pledged share into his ownership - according to the law, his demand is satisfied.

The chances of co-owners challenging such an agreement are somewhat less than, for example, in the case of barter: the law does not prohibit borrowing money, and a share in an apartment can be indicated as collateral without the consent of the other owners. However, the rules regarding a sham transaction can also be applied here, with the same consequences as mentioned above.

Sale through forced allocation of shares

In the event that there are disputes around the apartment and no one wants to give up, which is why there is practically no chance of selling the share through the right of first refusal, the owner, who wants to receive money in exchange for the share, has the right to demand its allocation. The law stipulates that the allocation is made in kind - that is, the allocated person must receive clearly defined square meters in the apartment.

However, since it is almost always impossible to allocate part of a city privatized apartment into a separate isolated room, the allocated one has the right to demand that the co-owners take his share and pay him compensation. The amount of compensation will be determined by the court. This method is convenient in that it does not require the consent of all co-owners, but it has 2 unavoidable difficulties:

1. An independent assessment of the apartment by an expert will be required.
2. Receiving money will take a long time, because collecting a debt from a person who does not want to pay is a very difficult procedure.

Sale of a share in an apartment if the co-owner is a minor

Difficulties may also arise if among the co-owners there is a child under 18 years of age. In this case, any transactions affecting the interests of a minor require additional approval from the local guardianship authority. Without this, the sale of a share can easily be considered illegal.

This rule does not apply only to those cases where, as a result of the planned transaction, the share attributable to the child increases. However, if the parents or persons replacing them plan to sell the child’s share in the apartment, the consent of the authorized body is required. It can only be obtained if there are guarantees that:

• the child will acquire a greater or equal share in the new apartment;
• or the funds due to the child for the share will be placed on a deposit, which only he himself can dispose of after reaching the age of majority.

For a person who participated in the privatization of an apartment together with members of his family, in some situations the question becomes relevant: what is needed to sell a share in a privatized apartment correctly? Is it possible to sell a share in an apartment without the consent of other owners?

How to sell a share in an apartment: the law

The privatization procedure transfers the apartment into the common ownership of its residents. Most often, this ownership is equal, unless any other agreement has been made voluntarily between the residents. And according to the current legislation, each of those who privatize housing can dispose of their share in the apartment as they wish. Only first you need to separate the share in the privatized apartment from the general right of ownership.

True, in the case of selling a share or part of a share in a privatized apartment, there are some restrictions that you should know about in advance. For example, the sale of a share in a real estate property to third parties is impossible without exercising the preemptive right to purchase it, which is available to the owners of the remaining shares. That is, an owner who decides to sell a share in an apartment in 2018 must first officially offer this part for redemption to co-owners.

How to buy a share in an apartment?

Pay attention! An offer to buy out a share in an apartment is a mandatory written notification to other shareholders of the intention to sell the part of the property belonging to the seller at a price set by him (the seller).

If none of the other owners of square meters express a desire to purchase a share on the stated terms (and by law they are given a calendar month to make a decision), the seller has the right to enter into a purchase and sale agreement with a third (outside) party.

But if within 30 days a buyer-co-owner is found, it will be necessary to re-register the share in the apartment to another shareholder through a purchase and sale agreement.

For detailed advice on what is needed to buy out a share in an apartment by a co-owner, as well as for assistance in carrying out the transaction according to the law, you should contact the specialists of the Doli.ru agency.

Algorithm for selling a share in a privatized apartment

Since, by law, each owner has the right to dispose of his own property at his own discretion, the owner of a share in a privatized apartment has the right to sell his part. But what does it mean to buy a share in an apartment? To ensure everything works out according to the law, you should follow the following step-by-step instructions:

1. Determine the price at which the share will be sold.
2. Find a buyer (possibly through advertisements) willing to buy part of the apartment for the stated price.
3. Before concluding an agreement, offer the co-owners of the property to buy out the share being sold under certain conditions.
4. Wait for the decision of the owners of other shares in the property to purchase the share being sold or refuse to purchase it (within one month).
5. Upon receipt of a refusal from the co-owners, enter into a purchase and sale agreement with the found third-party buyer.

If other owners do not want the share in their home to go to a stranger, they should think about how to properly buy a share in the apartment and take all measures to carry out such a buyout. And also declare your desire to purchase a share no later than one month after receipt of the notification-offer from the seller.

If other owners do not want the share in their apartment to go to a stranger, they must take steps to buy it out. And express your desire no later than a month after receipt of the notification-offer from the seller. Moreover, the co-owners cannot dictate their own terms to the owner of the share that is being sold. Even in cases where parents are deciding how to buy a share of an apartment from their son or daughter. Their preemptive right does not apply to this. They can buy a share in a privatized apartment (that is, the part of the housing that is being sold) only on the terms of its owner.

Sale through forced allocation and redemption of shares

If there is a struggle around a property and there is no chance of selling the property using the right of pre-emption, the owner who wants to sell his property has a direct route to court for a forced allocation of the share. Then it may be possible to sell your part in a privatized apartment without the consent of the co-owners.

But since it is not possible to allocate a geographically isolated share in kind in modern city apartments, it is possible to demand that other owners take it, and the plaintiff (potential seller) be paid compensation. Determining the amount of such compensation is the task of the court.

True, the method of allocating and purchasing a share through the court has both advantages and significant disadvantages. It is good that in this case the consent of all owners of the residential property is not required. However, an independent expert assessment of the apartment will be needed. And you still have to manage to get the awarded money from the co-owners. If these people did not want to compromise, they will not strive to pay anything. This means that bailiffs will have to be involved, and payments risk taking longer.

How can you sell a minor’s share in a privatized apartment?

Many people today are interested in the question: is it possible to sell a child’s share in a privatized apartment?

Yes, such a share in the apartment can be sold. But there will be certain difficulties associated with whether the minor’s share is determined or whether the apartment is privatized into joint ownership with him in equal shares. In addition, the consent of the guardianship and trusteeship authorities for such a transaction will be required, and they have a lot of conditions protecting the housing rights of the child, which are not so easy to fulfill.

If you require competent advice on the allocation, redemption, sale and re-registration of shares and parts of shares in privatized apartments or you want to know how to donate your share in a privatized apartment, contact the specialists of the Doli.ru agency in St. Petersburg.