A real estate transaction is one of the most expensive and risky among those entered into by the average person. Most cannot afford to buy an apartment with cash. In such cases, a mortgage helps, the interest on which is sometimes equal to the cost of the apartment itself.
Fraud in the real estate market is quite common. But, if when purchasing a home in a house under construction (from a legal entity - developer), the main risk is failure to complete the project on time or under construction. When dealing with a transaction on the secondary market, there are many more different schemes of deception.
Sale of rental apartment
Now the most popular type of deception is the sale of a rented apartment.
Tenants ask the owner for a copy of their passport and a copy of the foundation document (for example, a housing purchase and sale agreement). They forge documents and sell the apartment. Sooner or later, the owner will find out everything and present his rights to the property. Next will be a trial. As a rule, it is not difficult for the real owner to prove the nullity of the transaction.
How to avoid?
It is common practice for tenants to request a copy of their passport. But you shouldn’t leave a copy of the document on the basis of the right. As well as sending his photo. It is enough to show it when signing the lease agreement.
It is not necessary that someone who bought an apartment without the knowledge of the real owner is a fraudster. Most likely, both are victims. However, disassembly will take a lot of time and effort. And since it is unlikely that scammers will be found, it is most likely that the final buyer will be left without money and without an apartment.
Legal basis for the purchase and sale of shares in an apartment
The Civil Code has Article 250, which establishes a certain procedure for selling an apartment. In particular, the text of the article gives the seller’s neighbors a preemptive right to buy out the share. Simply put, the seller of a share in an apartment is obliged to first offer a deal to his neighbors and only then, if they refuse, can he make an offer to other potential buyers.
You need to make an offer not “in passing,” but purposefully, indicating the transaction price and other conditions. The owner of a share in the apartment is obliged to notify all neighbors that he is going to sell his rights to the property and obtain a written refusal from everyone in order to complete the transaction legally.
This provision in the law was developed in order to get away from communal property as soon as possible. In practice, this measure has had some success, but the communal apartments still exist. Sometimes sellers are faced with the fact that neighbors do not want to buy out the proposed share, but they do not give a written refusal. There is a legal way to solve this problem: the seller sends a registered letter with acknowledgment of delivery to the “doubting” neighbor. If the addressee remains silent for a month, it may be recognized by government agencies as a refusal.
But sometimes neighbors can, owning their shares, live somewhere very far away. And sometimes the seller simply wants to complete the transaction as quickly as possible, and then he may resort to circumventing the law. This creates risks that future owners of a share of rights are exposed to.
Sale by power of attorney or deed of gift
There may be 2 problems with the power of attorney:
- Fake.
- Expired document.
There may be the following pitfalls when donating real estate.
If the donor and the recipient are not, for example, relatives, then a sale could be hidden under the transaction. It can be challenged in court and declared feigned, and therefore invalid. Then the final buyer of the apartment will be left without an apartment, but the money will be required to be returned to him. The only thing is that if the money has already been spent, then the return will be long and through the bailiffs.
If the donor is found to be incompetent, coerced or misled. The gift transaction can also be challenged. But this is unlikely, since the gift agreement is drawn up through a notary.
How to avoid?
You can check the validity of the power of attorney in the unified registry reestr-dover.ru.
There is no way to check the gift agreement. All you have to do is trust yourself. If the buyer has doubts, it is better to find another object with “clean” documents.
Lack of spouse's consent. Lack of shares in children
Both of these can subsequently cause big problems for the buyer.
According to the court, the apartment is always returned to its original owner. The consent of the spouse is needed more for security in the future. This is not only a fraudulent scheme, but also very real situations. If there is no consent from the spouse, and later the owners divorce, then the one who did not consent to the sale of the property has the right to apply for his share within three years after he became aware of the sale. And he may know in 10 years.
The allocation of shares to minor children is mandatory in the case of using maternity capital. If the owners of the share did not allocate the children, but used the capital, then sooner or later the guardianship will become aware of this. There are no options; the property will be returned to the original owner through the court. The buyer can receive his return indefinitely through the bailiffs.
How to avoid?
If the owner of the apartment is legally married, it is necessary to obtain the notarized consent of the spouse.
If the owners have, for example, minor children, then they need to obtain permission from the guardianship to sell the apartment. This ensures that children are not deprived; perhaps their parents have already allocated them shares in better conditions.
What risks can there be when buying a secondary product?
Buying a finished apartment on the secondary market is safer than participating in shared construction and more convenient than a new building, but sometimes it is associated with difficulties and risks.
Risks can be divided into:
- technical - do not affect ownership, but create uncomfortable living conditions. They are not so scary, but they can result in large financial expenses when the seller takes away the plumbing, doors, and built-in furniture. Unauthorized redevelopment threatens trouble;
- legal - related to the possibility of loss of property rights to housing.
Most risks become reality after the money is paid. You should not hope that the seller will return the money even by a court decision, so you need to be very careful. The first thing that should alert you is the low price. Of course, there may be objective reasons for this: an inconvenient area, an old house, the poor condition of the apartment. But in most cases, it's all about a dubious past. And even if it is being sold by a conscientious seller who urgently needs money, it is better not to rush and carefully check all the documents.
The possibility of fraud increases sharply if an apartment is sold under a power of attorney, which may well turn out to be fake, invalid, or expired. Even a genuine power of attorney can be revoked by the person who issued it, so at the time of the transaction you need to check its powers, authenticity, and validity period. Fraudsters can force orphans, lonely old people, disabled people, and people suffering from alcoholism to issue a power of attorney. The seller may be a figurehead, to whom the apartment is re-registered under such a power of attorney, while the owners themselves are relocated to abandoned houses and taken outside the Moscow region.
There are many fraud schemes. The difficulty is that the apartment has a legal past, which is not always clear and pure. Apartments are at risk if they have been resold several times in a short period of time. A long, complicated story helps hide the details; after several transactions, it becomes increasingly difficult for the buyer to get to the bottom of the truth.
To ensure that buying an apartment does not result in many years of litigation and loss of money, you need to pay attention to the following points:
- authenticity of documents. Fraudsters take advantage of the fact that legally illiterate buyers do not know what many documents should look like;
- discharged minor children in educational institutions, prisoners, demobilization, and those undergoing military service retain the right of use and residence upon a change of owner. At the same time, sellers can convince that absent tenants will not claim the living space and even show written consent to sell the apartment. Also dangerous are the tenants who did not check out, participated in the privatization, and promise the buyer to check out after the transaction. Even refusal of privatization does not deprive them of the right to live in an apartment for life. By court decision, registered minor children can move in. Such stories drag on for years, and even with a favorable outcome for the buyer, he will have to pay for all utilities all this time;
- if the apartment was inherited, it is necessary to carefully check the history of inheritance, otherwise heirs may show up and claim their rights. The court's decision in such cases depends on many circumstances; it happens that the court takes the side of the bypassed heirs if the apartment is sold without their consent;
- After identifying the owner, you need to ensure his legal capacity. If you suspect inadequacy, it is advisable to ask for a certificate from a narcological/psychoneurological dispensary. Incapacitated citizens are not prohibited from making transactions, but they need to be very careful, because they have the right to challenge the transaction;
- An apartment purchased during marriage is the common property of the spouses, therefore one of the spouses must give consent to the sale in the form of a notarial document. If the owner is divorced, then you need to check the period of marriage/divorce; even former spouses can present their rights through the court;
- encumbrance with the rights of third parties, participation in a legal dispute, pledge, rental. For example, the apartment is pledged to the bank, and the seller does not pay the loan. Bank lawyers have a better chance of winning the case and taking the apartment.
It is impossible to take into account all the risks; there are a lot of them. But you can reduce them to a minimum by turning to professionals to process the purchase and sale of an apartment. It is better to pay for the services of a real estate agency than to be left with nothing.
Selling an inherited apartment
If the basis of the right to an apartment is inheritance, then this is one of the riskiest transactions. In addition to deliberately fraudulent schemes, there are also cases of unintentional conclusion of illegal transactions.
You can challenge a purchase and sale transaction:
- If you prove the insanity or incapacity of the testator. These are precisely those cases when, for example, old people are tricked into rewriting their wills in the name of strangers. But subsequently, completely natural children appear who challenge the will, usually successfully.
- New heirs. Yes, according to the law, it is necessary to enter into inheritance rights within 6 months. However, if a person did not know about the fact of death or, for objective reasons, could not appear in the desired city and fill out the documents, then he can receive his share at any time.
How to avoid?
In fact, no way. Just hope for the best. Or look for another apartment.
Sale by nominees
This is the simplest and at the same time effective fraud.
Someone similar to him is chosen to play the role of the desired person. Don't forget that people change over time, but passport photographs do not.
If you take possession of a person’s passport, then with the help of a figurehead you can obtain duplicates of title documents and sell his real estate.
It depends on your luck. Either the owner or the buyer will be left with nothing. Everything depends on the court's decision.
How to avoid?
For the buyer, have the transaction certified by a notary, transfer money through a bank, or better work with a lawyer.
The seller should not throw away his passport, plus all the above points.
Buying an apartment in a rented house: what you need to know
In addition to the DDU, you can purchase an apartment under a purchase and sale agreement, called “preliminary”. It is issued after completion of construction before transfer of ownership.
Banks give preference to such agreements when borrowers want to buy a home with a mortgage. The fact is that DDU objects are unfinished, which poses great risks for the lender of non-repayment of money.
ATTENTION !!! Most often, banks independently check both borrowers and developers, which is very beneficial for buyers: not a single financial institution will issue money to purchase housing from an unreliable company.
When drawing up a preliminary purchase and sale agreement, it is important to consider several points:
- When will the main contract be concluded? The document must indicate exact deadlines, otherwise the buyer may face delays in completing the documentation and will not be able to move into the apartment within the planned period. In the absence of an exact date, the developer is given 1 year to obtain passports and technical documents, and until this time the buyer will not be able to obtain ownership rights. If after 12 months the main agreement has not been drawn up, the transaction is challenged in court.
- Property characteristics and final cost. These are important details. If the agreement states that the developer has the right to increase the price under certain circumstances, this puts the buyer at a disadvantage.
Taking into account the above nuances, it is possible to eliminate pitfalls when purchasing real estate under a preliminary purchase and sale agreement.
Deposit fraud
Attackers place advertisements that do not correspond to reality, indicate an increased price and demand an advance payment, which is soon cashed out. Fraud also affects rented premises. Fraudsters take money for searching for advertisements that meet the customer’s requirements. But in return they are provided with low-quality options that have already expired.
How to avoid?
Ask the seller for the cadastral number of the property and make an extract from the Unified State Register of Real Estate. Be sure to check the owner for debts; in case of debt, bailiffs can seize the owner’s property. If the transaction has already been completed, all debts on utility bills will fall on your shoulders. To complete a purchase and sale transaction, it is recommended to obtain a certificate from the owner confirming the absence of debts. If the owner does not want to give the necessary information, then this means that this is a scammer.
Shell companies
Fraudsters create short-term companies. They introduce themselves as realtors and take an advance payment for the upcoming work. Buyers and sellers are at risk. Criminals, having received large sums from different individuals, simply disappear and do not provide any assistance in finding clients.
How to avoid?
To avoid losing money when collaborating with agencies, check the property yourself for collateral and other encumbrances. Draw up an agreement on the agency's obligations to you. Be sure to make an extract from the Unified State Register.
What risks might there be when making a transaction?
Among the “toolkit” of unscrupulous sellers and realtors, there are several measures aimed at circumventing the law:
- The seller shows his neighbors a sample contract with an unreasonably inflated price, which scares them away and forces them to abandon the deal. Then, showing the contract to the prospective buyer, the seller promises to take an amount less than that stated in the contract. This does not create additional costs if the seller has owned his share for more than three years. But all the “agreements in words” mean nothing, and at the last moment the seller can demand the amount specified in the contract, and in case of refusal, he has the legal right not to return the advance. Therefore, you should not rely on verbal promises.
- A purchase and sale transaction may be “disguised” as a gift. For the buyer, this creates not only an additional financial burden in the form of income tax (13% of the cost), but also an additional risk: giving a gift to a stranger may arouse unnecessary suspicion among neighbors and prompt them to conduct an investigation. A special case is possible: the seller “donates” a small part of the share in order to equalize the rights of the buyer with its neighbors. However, this is also a latent bypass of the law, and you can get into the thick of disagreements between owners.
- The seller can “disguise” the purchase and sale transaction as a loan. The collateral in this case is the right to a share in the apartment. After concluding a fictitious transaction, the seller “does not repay the debt” and the share goes to the buyer. There are two risks here. Firstly, authorized bodies often refuse to register such transactions. Secondly, even if the deal goes through and the neighbors find out about it, they can pay the amount instead of the buyer, thus leaving him with nothing. In such cases, the court usually recognizes the property rights of the neighbors. So it’s also better not to agree to such deals, so as not to lose money. Similarly, the seller can resort to a fictitious annuity agreement - with the same risks for the buyer.
All fictitious transactions, according to Article 170 of the Civil Code, can be investigated by the court and, if the sham is proven, will be interpreted as the sale of a share in the apartment.
Be sure to request from the seller documents that confirm that he solely owns his share in the apartment, does not violate the rights of minors, does not try to sell his wife’s property after a divorce, and does not make a fraudulent real estate transaction to which he has no rights.
Loss of real estate during loan processing
Often fraudulent activities are carried out during a private loan secured by real estate. In this case, the debt agreement is drawn up as if it were a transaction for the purchase and sale of housing. It turns out that the apartment goes to scammers at a fairly low cost. Further, the premises are sold to other persons, and the owner is evicted. It is almost impossible to prove this type of fraud, because the owner signs all the papers with his own hand.
How to avoid?
You need to carefully read all the papers before taking out a loan. Many people, inspired by the fact that they have been approved for a loan, immediately sign all the papers and do not delve into them. With a competent approach, mistakes can be avoided.
How to buy an apartment from a developer
There are two ways to purchase real estate from a developer - concluding an agreement for shared participation in construction or drawing up a preliminary purchase and sale agreement.
In the first case, the subject of the contract is an unfinished object, and the buyer bears considerable risks:
- There is a possibility that the construction will be “frozen” for an indefinite period of time, and the shareholders will be left without housing and without money.
- The legislation in the field of regulation of relations under the DDU is imperfect, and the main nuances are described by the parties in the contracts themselves. If they do not indicate the responsibility of the developer in case of delay in delivery of the project, detection of technical defects and other nuances that are important for the buyer, it will be problematic to recover damages or penalties. Therefore, before signing the documentation, you must carefully read the contents.
Important! the cost of an apartment according to the DDU in an unfinished building is often significantly lower than the market price, which allows the purchasers to save money. After construction is completed, prices increase, therefore, if housing is not urgently needed, it is better to issue a DDU, having first checked the reliability of the developer.
