Purchasing an apartment - certificate of legal capacity. The legal capacity of the apartment seller. A case from legal practice
When making any civil or legal transactions, the key point is the legal capacity and capacity of the citizens who participate in these transactions.
In itself, it is implied that all citizens of the Russian Federation who have reached the age of 18 are legally capable and capable. Otherwise, the person does not have the right to enter into any transactions. If the transaction was nevertheless completed, then if the fact is revealed that the person did not have the right to do so or was already incapacitated, it will be canceled and declared invalid.
PND and PN certificates - what are they?
In order to complete the sale of an apartment, real estate services often require a certificate stating that the seller is legally competent. Let's look at what this paper looks like and what it is.
The ND certificate can be obtained from the drug dispensary at the place of registration of the seller. It indicates that the person is not registered with this institution. In the case when a person is registered, the question of legal capacity will be open.
A PND certificate is obtained from a psychoneurological dispensary. The meaning of such a document is the same as the previous one.
A sample of these certificates can be found on the Internet or in medical institutions. The validity period of such paper is one year. The cost of obtaining this document must be clarified on the spot; as a rule, payment is made by receipt.
Regarding this issue, there is one tricky point! Even if the seller is registered with one of the medical institutions, the issue of his incapacity has not yet been approved. This issue is decided exclusively by the court, so any transactions will be at great risk when the issue of incapacity arises.
You should also be careful if, at the time of signing the documents, there is no court decision on the seller’s incapacity. Over time, there is sometimes a danger that such an agreement will be challenged. The court may assign the status of incompetent after signing the contracts and consider that at the time of the transaction the seller was not aware of his actions. And this is a very important reason for declaring the transaction invalid.
To prevent similar situations from arising in the future, realtors play it safe by requiring similar certificates from the seller.
Civil legal capacity of citizens
The legal capacity of a citizen is the legal ability of a person to have civil rights and be responsible before the law.
A citizen becomes legally competent from the moment of birth, and all citizens of the Russian Federation are so. This concept is integral to the concept of the citizen’s personality. A person cannot be deprived of legal capacity.
If we apply this concept to real estate transactions, then the legal capacity of the seller speaks of his legal rights to own, use and dispose of housing.
On legal capacity during the purchase and sale
Legal capacity allows a person to act freely according to his or her legal capacity. Thanks to these actions, a person can exercise his rights, as well as gain new rights. Legal capacity implies the fact that a citizen is fully aware of the meaning of his rights and understands the consequences of his actions.
A person acquires legal capacity gradually:
- children under 6 years of age are considered legally incompetent;
- from 6 to 14 years of age, children are considered “minors” and have “the legal capacity of minors” (at this age, children are not able to bear responsibility, so parents are responsible for their actions);
- from 14 to 18 years of age, children are considered partially capable (during this period they can carry out transactions regarding property, but only with the written permission of their parents);
- after the 18th birthday, full legal capacity is achieved (once this age is reached, a person is fully responsible for his own actions).
Regarding the issue of real estate, legal capacity means that a citizen can himself exercise his rights in relation to living space and continue to bear full responsibility for this.
If a transaction is executed by an incapacitated person, then this fact is considered invalid.
Recognition of incapacity
A citizen's incapacity is recognized only in accordance with a court decision. This happens only due to a person’s severe mental disorder and due to lack of awareness of his actions. In this case, the court may declare the person incompetent and appoint guardianship over him. A person is appointed as a guardian who will represent the interests of an incapacitated person; therefore, on his behalf he has the right to enter into all transactions of a civil law nature.
The court makes a decision on recognition of incapacity only on the basis of a forensic medical examination. Relatives, the guardianship authority or representatives of the prosecutor's office can insist on such an examination.
A mitigating option that can be issued in court is a partial restriction of a person’s legal capacity. This option is possible when a person is addicted to some bad habit (alcohol, drugs). Such a person may be limited in legal capacity by the court and a guardian may be appointed to him.
A person who is partially deprived of legal capacity has the right to make small transactions, but transactions related to real estate must be carried out only with the consent of the guardian.
In any civil law transactions between individuals, a key role is played by legal capacity And legal capacity these same individuals - participants in transactions.
By default, it is assumed that every adult citizen of the Russian Federation is fully has legal capacity And capable. Otherwise, he does not have the right to independently carry out transactions.
And if he did make such a deal ( signed a contract for the sale and purchase of an apartment, for example), then this transaction becomes invalid as soon as it turns out that the Seller of the apartment had no authority to do so or was incapacitated .
We are not talking about the Buyer of the apartment here, because... reason to take the money and then terminate the deal for a reason "incapacity" can only be from the Seller.
Civil legal capacity of an individual
Legal capacity a person is called his ability ( more precisely, a legal possibility) have civil rights and bear certain responsibilities provided by law. Those. to be a bearer of rights and obligations, to be a subject of law, according to Opens in a new tab.">Article 17 of the Civil Code of the Russian Federation.
Legal capacity a citizen arises from the moment of his birth, and is recognized equally by all citizens of the Russian Federation. Legal capacity inseparable from the personality of a citizen. You can't deprive a person legal capacity.
In relation to transactions with apartments, legal capacity The seller means he has legal rights possession, use and disposal apartment.
Legal capacity to sell an apartment
Legal capacity refers to the ability of a person to act freely in accordance with his own legal capacity . These actions can serve him to realize his rights, can give him new rights, but also impose on him duties and responsibility for his actions.
Declaring a person incompetent
A citizen can ONLY be declared legally incompetent by a court decision.. This happens due to obvious mental disorder a person, and his inability to understand the meaning of his actions (Opens in a new tab.">Article 29 of the Civil Code of the Russian Federation). The court can deprive such a person legal capacity, and install over it guardianship (from among his immediate environment, for example).
Guardian becomes the legal representative of the ward, and makes all civil transactions on his behalf and in his interests ( incl. real estate transactions).
The court decides on incapacity of a citizen based on the results forensic medical examination, which installed him serious mental disorders . Initiate such examination in relation to a citizen, his relatives can , prosecutor or psychiatric hospital (Opens in a new tab.">Article 281 of the Code of Civil Procedure).
A milder option used by the court is restriction of a citizen's legal capacity(Opens in a new tab.">Article 30 of the Civil Code of the Russian Federation). This happens when a person is not able to cope with his addictions ( for example, drinking, drugs, etc.), as a result of which his loved ones suffer. The court can limit one's legal capacity, and assign over it guardianship .
Citizen with limited legal capacity can independently carry out small household transactions, but large transactions ( incl. on alienation of real estate), he has the right to perform only with the consent of your guardian .
If a citizen is recognized by a court incompetent or limited by the court in legal capacity, then according to the law, the court must notify about this within 3 days Guardianship and trusteeship authorities at the citizen’s place of residence, in order to establish over him guardianship or guardianship (Opens in a new tab.">Clause 2 of Article 34 of the Civil Code of the Russian Federation).
Any real estate transactions, affecting rights of incapacitated or limited persons, are carried out only with written permission Guardianship and trusteeship authorities.
Certificates from ND and PND - what are they?
When selling an apartment, realtors sometimes require the Seller to certificates from ND and PND, citing the desire to make sure that the Seller is completely capable.
Certificate from ND- this is a certificate from drug treatment legal capacity questionable.
Certificate from the IPA- this is a certificate from psychoneurological dispensary at the Seller’s place of residence that he is not registered with them. If it is listed, then it is legal capacity questionable.
But! Important clarification! If the Seller is registered in ND or HDPE, that doesn't say anything about him incapacity (Only the court can decide this issue), but increases associated with possible incapacity.
And the opposite situation - if at the time of conclusion of the transaction there was no court decision on incapacity Seller, then later there is still a risk challenging the deal for this reason. The court may recognize the Seller incompetent or limit his legal capacity already after the transaction, and consider that at the time of its completion he did not understand the meaning of his actions (Opens in a new tab.">Article 177 of the Civil Code of the Russian Federation). And this is already a reason for.
Those who are registered with ND or HDPE this risk is obviously higher. To reduce this risk, appropriate certificates are taken.
True, there is good news for the Buyer of the apartment: from March 2015, paragraph 2 of the above Article 177 of the Civil Code of the Russian Federation supplemented with a condition under which the transaction can be recognized invalid, if the Seller is subsequently sued limited in capacity, and considered that at the time of the transaction he did not understand the meaning of his actions, and ( important!) The buyer knew about this ( those. I saw that the Seller was mentally ill, but still made a deal with him).
At the same time, do not confuse the concepts "recognized incompetent" And "limited in capacity" (differences - see above).
How to confirm the legal capacity of the Apartment Seller in a transaction
To confirm legal capacity The seller at the time of signing
In accordance with Article 177 of the Civil Code of the Russian Federation (Invalidity of a transaction made by a citizen incapable of understanding the meaning of his actions or managing them), a transaction made by a citizen, although legally capable, was at the time of its completion in a state where he was not capable of understanding the meaning of his actions and managing them, may be declared invalid by the court at the request of this citizen or other persons whose rights and interests protected by law are violated as a result of its commission.
Perhaps half of all contested transactions are contested with reference to this article of the law.
The main, although not the only, evidence in such a dispute is the results of a forensic psychiatric examination or a post-mortem forensic psychiatric examination. Within the framework of the first, medical documents, case materials and the condition of the citizen are studied, within the second - medical documents and case materials. The main question posed to experts is whether the citizen, at the time of the transaction, could understand the meaning of his actions and direct them.
Next, consider two options:
1. If you yourself are an elderly person, suffer from any diseases that may affect the ability to understand the meaning of your actions, have suffered a stroke, heart attack, suffer from diabetes, memory disorder, etc., and at the same time you are afraid that your will or any of your other transactions will be challenged by your relatives or other interested parties - you should take a number of important actions.
Make a transaction only with a notary.
A notary is not a doctor and does not establish legal capacity, although this is formally indicated in every notarial document. In reality, the notary can only determine your orientation in time and space, determine whether you remember your data, and ask a number of questions regarding your will and knowledge of the consequences of performing a notarial act.
But when challenging a notarial transaction, a notary is required to participate in the process as a third party and, during the consideration of the dispute, takes either a neutral position (“I don’t go to court and don’t remember anything, because I have 20 transactions a day, and yours was a year back") or the plaintiff’s side (“yes, the citizen was adequate, perfectly oriented in time and space, answered questions clearly,” etc.).
Notarial transactions are treated differently than transactions concluded in simple written form. Whatever one may say, both the court and the experts have more confidence.
On the day of the transaction, visit your local psychiatrist and get a certificate from him about your mental health.
Exactly on the day of the transaction! Neither the day before, nor the next day, namely on the day of the transaction. It is the day of the transaction that is the legally significant period. It is best if it is a free psychiatrist at your place of residence. Explain to the doctor the purpose of your visit, ask for a card and write in detail both on the card and on the certificate (ask for two identical certificates, if given) about your state of health. And that your consciousness is clear, and that you are not registered with the PND and that everything is fine with you.
If you managed to obtain two certificates, be sure to leave one with the notary, and give the second to the person in whose favor you are making the transaction, for careful storage and presentation, if necessary, to the court.
Take an independent escort with you to the notary's transaction.
It is this person who will be your valuable witness who will be able to give evidence to the court regarding your adequate behavior on the day of the transaction and your persistent desire to complete it. Also good witnesses will be people to whom you told long before the transaction and after the transaction about your intention to dispose of your property in this way.
2. If you are going to make a transaction with an older person.
Basically it comes down to when exactly you acquire the property. Almost no one challenges transactions involving the purchase of real estate by older people.
You especially should not neglect the advice I have already given.
Request a certificate from a psychiatrist.
When purchasing real estate, do not underestimate the price in the contract in order to evade taxes - in this case, income tax is the problem of the seller. Indeed, if a transaction is declared invalid, the consequence is bilateral restitution - each party returns to the other everything that it received under the transaction.
If you have doubts, do not make a transaction!
In any case, it would be a good idea to consult with a lawyer before you decide to do something bad. After all, if you make a mistake, you will incur much higher costs.
Risk, of course, is a noble cause. But the euphoria from the long-awaited purchase of a home may be very short-lived if it suddenly turns out that the apartment is at risk. It is very easy to lose it. Lawyer Oleg Sukhov, leading lawyer at the First Capital Legal Center, told us what you should be wary of when purchasing and what you shouldn’t save on.
Risk 1. What's the cost?
If it is at least 20% below the market price, then the transaction should be taken especially seriously. As practice shows, in order to sell “unclean” housing faster and with a guarantee, unscrupulous sellers reduce its value. This has a hypnotic effect on buyers, many forget where the free cheese is usually found. In order not to clearly scare buyers with a low price, scammers (if the apartment is sold directly through individuals) refer to the need for an urgent sale for some invented reason. For example, relatives immediately need money for treatment, or in connection with leaving for another city or abroad.
It happens that scammers sell an apartment through a supposedly large real estate agency by changing one letter in its name. For example, “Inkom +” or “Miel 1”. The names of these companies are similar to the names of well-known agencies with a good reputation. The backup company registers with the tax office, rents a good office in the city center for one or two weeks, advertises in the newspaper and on the Internet about the urgent sale of an apartment at a reduced price from a “well-known” real estate agency. The buyer falls for this trick. Naturally, such sales transactions do not end with housewarming.
Unfortunately, not everyone turns to specialists when purchasing a home. Many people believe in themselves or in the big name of a company that cannot deceive. The desire to make a “successful” deal on the cheap is also spurred on by the scammers themselves, who convince buyers that there is a queue for an apartment of people who want to purchase it and are already ready to make an advance payment.
In legal practice, we have more than once encountered situations when buyers, forgetting about everything in the world, purchased an apartment, and later it turned out that it was either under arrest (removing it temporarily is not a problem for scammers), or was registered using forged documents, about which quickly becomes known to law enforcement agencies. These could be fake court decisions and wills, death certificates and social tenancy and apartment transfer agreements, as well as fake investment agreements or other documents.
Risk 2. Power of attorney
If they hide from the buyer who is the owner of the apartment, or offer to sell by proxy, this is a serious reason to be wary. It is better to immediately refuse such a problematic transaction or conduct a thorough check. It is necessary to verify the authenticity and validity of the powers of attorney, and also to study the history of the apartment in terms of its previous owners and their fate (it often happens that the owner himself is absent from the transaction for some reason, but then it turns out that he is no longer alive - this is usually occurs when selling apartments using forged powers of attorney).
As for the power of attorney, it can be canceled within a few minutes, but what can such an action lead to? Let’s say the owner issues a power of attorney for the sale of his apartment, the transaction is prepared, the necessary documents are collected, payment for the apartment is deposited in the bank, contracts are submitted for registration. On the 13th or 14th day, right before registration itself, the owner cancels the power of attorney, but does not inform anyone about this. The transaction undergoes state registration, the fraudulent seller receives his money, and the next day goes to court with demands to recognize the purchase and sale agreement as an invalid transaction due to the lack of will of the seller to complete the transaction, which is confirmed by the cancellation of the power of attorney for the sale of the apartment. Of course, these demands can be, as they say, “beaten off” with a qualified lawyer, but the buyers will be seriously damaged by their nerves.
Risk 3. Owner and registered
There are often cases when the owner of an apartment is an insane, incompetent, or partially capable person. There are a lot of cases in the courts challenging or declaring a purchase and sale transaction invalid only on the above grounds of insanity or limited sanity of the seller.
If it follows from the documents that the seller is of advanced age, then his presence at the transaction, as well as a psychoneurological examination immediately before the transaction, are required.
If there are persons “registered” in the apartment who cause concern (not only due to their advanced age and state of health), and who were previously the owners of the apartment and transferred it to your seller under a gratuitous transaction, they also need to be carefully checked.
An example of a gratuitous transaction is a gift. Let’s say an elderly woman gives an apartment to her daughter, the daughter decides to sell it, after the sale, the grandmother goes to court and demands that the apartment be returned to her, citing a lack of will and desire when concluding the gift agreement. If the lack of will, for example due to the mental state at the time of the transaction, is proven, then the buyer will be left without an apartment due to the court declaring the gratuitous transaction invalid.
A case from legal practice
Let me give you one of the latest examples, which happened to one of our clients, who bought an apartment from a limited-capacity, but very smart seller, and what this led to.
The seller of the apartment, registered with a psychoneurological dispensary, put his apartment up for sale with a small bonus in favor of buyers relative to the market value. Buyers were found very quickly and paid 10 million rubles for the purchase. Immediately after registering the purchase and sale agreement, the seller goes to court, and acts very competently and independently, having a long-term practice of such disputes, seizes the apartment and asks to declare the transaction invalid on the basis that he, being of limited legal capacity, did not give an account of his actions at the time of execution of the contract. Based on the forensic medical psychoneurological examination, the seller’s limited legal capacity was confirmed, and the court ruled in his favor.
By the way
Despite the fact that in such disputes the property is registered back to the seller, but is not actually transferred to him until the money paid to him is returned, this does not prevent the seller from being registered in the apartment and living in it. Buyers find themselves in a situation where they are legally copyright holders, but not owners, and cannot dispose of housing that they have paid for in full, and their use is significantly limited. It is impossible to get money back from the seller in such disputes. It is also impossible to seize an apartment for the purpose of sale, since this property is the only place of residence of the seller. True, the seller himself offered the buyers to “get behind” them for 5 million rubles, but still the result is not comforting, since it turns out that the apartment is actually being transferred for one and a half prices.
Risk 4. Number of sales
The more owners a home has had over a short period of time, the more alarming this should be.
And here's why. Many scammers are good lawyers and are quite well versed in both the practice of preparing documents and the peculiarities of conducting transactions. But their level of legal training is not high enough to understand the intricacies of legal proceedings regarding invalid transactions. And, as a rule, they have no idea about the practice of explaining certain provisions of the Supreme or Constitutional Courts of the Russian Federation. Therefore, apartment swindlers believe that, having made one illegal transaction on an apartment, they will conduct two or three more, thereby “cleaning up” the apartment, and the new buyer will be considered conscientious.
This is a very serious misconception, not only for buyers, but also for many realtors. What about realtors, many lawyers do not understand the status of a bona fide buyer. Let me explain briefly and in layman’s language: the buyer will never be in good faith if the apartment he purchased was ever taken away from the actual owner against his will (deception, forgery of documents, limited legal capacity, threats, many other reasons).
By the way. The institution of a bona fide purchaser, as almost all realtors assure us, does not act in the interests of the buyer, but in the interests of the previous owners.
You can check the data about the apartment by studying an extract from the Unified State Register of Rights to Real Estate and Transactions with It (USRP) about all transactions made in relation to this apartment, as well as an extended extract from the house register.
Risk 5. Red lines
It would be a good idea to request and study the BTI documents yourself, without entrusting this process to the seller. Why? If redevelopment has been carried out in the apartment, then, without having BTI documents, without studying the cadastral passport and explication, the buyer will never know about it. Moreover, these documents are not at all necessary to complete a purchase and sale agreement. However, in the future, if red lines are discovered indicating illegal redevelopment, the buyer is unlikely to be pleased with the need to spend considerable money both on home repairs and on paperwork to pay fines and bring the apartment to its original condition. At the same time, redevelopment and re-equipment are often carried out in such a way that it will require several tens of thousands of dollars to obtain legal approval.
Reconciliation of BTI documents with the actual condition of the apartment will guarantee receipt of the necessary information that insures the risks of illegal and unapproved redevelopment or refurbishment. BTI documents in the usual manner cannot be obtained by someone other than the owner, or a person “not registered” in the apartment (except by power of attorney, of course) and without having a title document for the apartment. However, these issues can be resolved, including both by visiting the BTI with representatives of the buyer or by the buyer himself, and by contacting specialized organizations that can provide certificates from the BTI even in the absence of the necessary documents.
Risk 6. What is reflected in the contract
It is no secret that to avoid taxes, sellers reduce the cost of the property being sold tens of times. So, if for any reason your transaction is declared invalid or terminated, then you will only be able to get back the amount specified in the contract. To avoid such risks, it is necessary to transfer money correctly with the correct execution of receipts.
Why do receipts need to be completed correctly? Because a receipt is a debt document, if there are errors in it or text that does not reflect the actual state of affairs, the return of funds for which may be impossible. For example, in most cases, when selling an apartment that is sold at a cost higher than that specified in the contract, the buyer and seller sign two receipts, one for the contract price, the other for the difference between the cost and the actual amount transferred. In most cases, the second receipt is issued as confirmation of money received for supposedly inseparable improvements in the apartment. But what kind of inseparable improvements can there be if they exceed the cost of the living space itself by several times? In this case, the receipt is drawn up as a document aimed at an obligation that may arise as lost profits, but not as direct losses.
I’ll tell you a little secret: the courts of the Russian Federation do not satisfy claims for lost profits, despite the fact that the rights to such claims are established by civil law. Simply put, it is very difficult to collect money from a receipt for obligations to reimburse the amount of money for inseparable improvements.
Risk 7. Third parties
You should check whether you are going to buy a home with “invisibility”? To do this, you need to carefully study the extended history of the apartment: “registration” (registration) in the residential premises and “extract” (deregistration) are subject to research on the basis of the Federal Migration Service document (passport office) - the house book. It can be used to determine the presence or absence of minor children in the apartment, when and where they left, as well as persons in prison. If the children were registered in social orphanages, it is 100% that the sale of such an apartment will turn out to be a void (invalid) transaction. The prosecutor's office, guardianship and trusteeship authorities monitor such residential premises and return them to the children through the court.
Similar relationships arise with apartments from which persons in prison have been deregistered. When buying an apartment, checking the extended extract from the house register, you need to pay attention to information about whether anyone was “discharged” from the apartment being sold after 1995 due to serving in prison. Such citizens retain the right to housing, regardless of how long they have served in prison. If the apartment in which a person currently in prison lived was privatized, or he was one of its co-owners, then it can only be disposed of with his consent. Thus, the law secures the rights of such persons to residential premises, and those returning from places of imprisonment can move in, “register” and live in the apartment. At the same time, this information can sometimes be obtained precisely from an extended extract from the house register, since in the ordinary extracts that are provided for the transaction, there are no notes on the encumbrance of the residential premises in terms of the existence of the legally established right of residence of the discharged prisoner.
Risk 8. Married or single
If the owner is or was married, it is necessary to check the dates of its conclusion and dissolution, the date and reasons for the acquisition of the apartment by the owner. If housing was purchased during marriage, then both spouses have rights to it, regardless of who it is registered to. It is imperative to require the consent of the second spouse to sell the apartment. Otherwise, there may be a risk of dividing the property with the other half of the seller.
The same fate awaits the buyer if he purchases an apartment (purchased during marriage) from one of the spouses, if the marriage is dissolved, but three years have not passed from the date of its dissolution. The ex-spouse has the right to go to court and claim his rights to part of the apartment you bought.
Risk 9. Housing - by inheritance
Pay special attention to this point in the title documents. If the chosen apartment was received by inheritance, then you definitely need to inquire on what basis - a will or inheritance by law.
The rules of inheritance by law and by will are different. If there is a will, persons who have the right to an obligatory share in the inheritance and the testator's dependents can also inherit. The circle of such persons must be established, otherwise they will be able to claim in court a significant share of the inheritance, and the court will award them this share. The new owner of the apartment will be forced to share the purchased premises with such applicants. In addition, it is necessary to pay attention to whom and when the will was executed, since it can be challenged by dissatisfied heirs of the first priority who were deprived of inheritance under the will. Moreover, it is necessary to establish the general state of health and the mental state of the testator who executed the will. Since very often wills drawn up by elderly people are declared invalid by the court.
When deciding to purchase an apartment received by inheritance, you need to be prepared for the fact that some heir may go to court with a demand to restore the missed deadline for entering into an inheritance. Or, within three years, an adult “unaccounted for” inheritance claimant may suddenly appear and be able to prove his rights. Then all transactions made with the apartment after accepting the inheritance will be declared invalid.
It is up to the buyer to decide whether to purchase such housing or not. And if less than three years have passed since the acceptance of the inheritance, it is better to refuse such a transaction.
Another option: in such cases, sign an agreement with the seller of the apartment, in which he will undertake obligations in the future, in the event of other heirs claiming the inheritance and restoring their rights to it, to transfer to them a proportional part of the amount of money received for the property.
Risk 10. Presence of disputes and encumbrances
Such information can be found out by sending an application to Rosreestr (the response is given within 5 days), as well as by request to the office for civil cases in the court at the location of the property. If there is a dispute regarding the property or if there is any encumbrance, you should refuse the transaction, or consult with a competent lawyer about the consequences of the existing dispute or encumbrance. Based on the results of the information received, you can decide whether it is worth entering into a deal in the future or not. And if you decide what it’s worth, then reduce the cost of the purchased property as much as possible.
Participants in the secondary market are well aware of the “terrible and terrible” category of sellers - persons registered in narcological (ND) and psychoneurological (PND) dispensaries. Traditional recommendations on this topic boil down to the fact that the selling party should ask for a certificate stating that they are not registered. If they are, then it is better to refuse to purchase an apartment from them.
This article is a reference and information material; all information in it is presented for informational purposes and is for informational purposes only.
A certificate, and in person!
The author of these lines is a big fan of various tales from the life of realtors. You can’t hear enough of that sometimes! So this time, as they say today, I “stocked up on popcorn” and prepared to listen to stories about how venerable agents recognize secret Napoleons, dog people, Martian agents and just drunks in seemingly unremarkable citizens. However, everything turned out to be more prosaic. “Only a qualified doctor can make a correct diagnosis,” they said experts from Metrium Group. “The realtor in this case shows not professional, but purely human qualities - observation, intuition, instinct.”
The main thing that market professionals rely on is documents, that is, certificates from the relevant dispensaries stating that the given citizen is not registered there. They ask you to bring them everyone sellers (regardless of what the realtor’s professional instincts suggested) are exceptions, according to Olga Selyutina, head of the secondary housing department of the Russian Real Estate House company, is done only for holders of driver's licenses and hunting licenses. Since the receipt of these documents in itself implies that the citizen is not registered.
Regarding certificates from PND and ND Svetlana Birina, head of the urban real estate department of the NDV-Real Estate company, gives a couple more useful tips. First, you need to make sure that the document was actually received at the appropriate institution, and not bought in the nearest gateway. To do this, you need to go to the dispensary together with the participant in the transaction. And secondly, it is useful to pay attention to the period of permanent registration of the seller at his last place of residence. If it is small, you should contact the PND and ND at your previous place of residence - it is possible that the data we are interested in is there.
Questionable defense
Let's consider this turn of events: the seller brought a certificate, and then it turned out that it was fake - he was still registered. Will having such a document help the buyer? After all, the certificate (albeit a false one) proves that the buyer was concerned about this issue and demanded documents from the opposite party. This means he is a bona fide purchaser. And the seller who knowingly brought in a fake is a criminal.
Unfortunately, these theoretical constructs are broken in real life. “On the one hand, the presence of such certificates really speaks of the buyer’s good faith: he tried to take all measures to ensure the legality of the transaction,” explains Irina Shugurova, Deputy Managing Director of MIEL-Network of Real Estate Offices for Legal Affairs. “On the other hand, it can also play a negative role: the buyer seems to confirm that he had doubts about the seller’s health.”
“Judicial practice is diverse, and there is no clear answer to how this or that trial will end,” sums up Irina Shugurova.
“Wash yourself” as best you can
I’ll tell you a real story – it happened to some of my friends. A boy at the age of 10-12 had a headache (and who doesn’t have a headache as a child?!), and his caring mother took him first to a neurologist, and then, for some reason, to a psychiatrist. The good doctor said everything was fine, the story had been forgotten. And then, closer to his 18th birthday, the military registration and enlistment office became worried - they say that the conscript was registered in the “druk”. And the boy had to lie for several days in the corresponding house of grief.
What I mean is that you can get registered for a variety of reasons - you don’t have to become the Viceroy of India, like accountant Berlaga. Now let’s imagine that such a person has an apartment and wants to sell it. Is this even possible?
The answers received from market experts were not encouraging. On the one hand, everyone unanimously declared that such a person is not deprived of legal capacity - there must be a court decision on this matter. So he may well sell the apartment. On the other hand, there is an accounting in the PND, so they would not recommend their clients to purchase such an apartment.
What to do? If you don’t consider the option of “buying a certificate at the subway crossing,” then there are actually two ways. Or honestly tell everyone about your problems and offer the apartment at a significant discount - in the hope that there will be people willing to take the risk. Or (which, in our opinion, is more troublesome, but more promising) deregistration through the official means - the corresponding procedure is provided for by law. This path is also better in that it eliminates not only the current ones (related to this transaction), but also all subsequent problems.
And the practical advice is simple. Buyers - when meeting an apartment whose seller cannot provide the appropriate papers, really run without looking back. Do not buy - not for any money. And sellers should seek legal deregistration. This is troublesome, but quite doable.