Transfer of ownership of real estate in connection with the conclusion of a marriage contract

Is the transfer of a share in the ownership of real estate not subject to registration?

As you know, rights to real estate are subject to state registration. This is stated in Article 8.1, Article 131, 223 of the Civil Code of the Russian Federation.

In this case, Article 8.1. does not specifically establish what property rights are subject to registration, but refers to “cases provided for by law” (Clause 1 of Article 8.1 of the Civil Code of the Russian Federation). In clause 2 of article 8.1. it is stipulated that “2. Rights to property subject to state registration arise, change and terminate from the moment the corresponding entry is made in the state register, unless otherwise established by law .” Those. the law may establish another moment of emergence of rights subject to state registration (apparently it is worth thinking that here we are talking about the emergence of these rights EARLIER than their registration).

Clause 1 of Article 131 of the Civil Code of the Russian Federation provides that ownership of real estate is subject to state registration. At the same time, this article does not determine the MOMENT of emergence of rights to immovable things. It only states the need to register rights to real estate, and nothing more, period. Thus, in determining the moment of emergence of rights to real estate, Article 131 of the Civil Code of the Russian Federation will not help us in any way.

Comparing Article 8.1. and Article 131 of the Civil Code of the Russian Federation, we will see that they distinguish and strictly delimit the NEED for registering rights and the MOMENT of their occurrence. By establishing a requirement for registration of rights to a particular property (i.e. rights subject to state registration), the law does not imply the inevitable emergence (change, termination) of these rights from the moment of their registration. In the case of real estate, Article 131 of the Civil Code of the Russian Federation does not answer the question WHEN (from what moment) the rights to real estate arise (hereinafter, for convenience, so as not to list each time, I will mean by “rights arise” both their change and termination ). ACCORDING TO THE GENERAL rule provided for in paragraph 2 of Article 8.1. According to the Civil Code of the Russian Federation, they arise from the moment of state registration, but the law may provide for aNOTHER moment of their occurrence.

Article 223 of the Civil Code of the Russian Federation continues to develop the topic and establishes the following:

"1. The ownership right of the acquirer of a thing under a contract arises from the moment of its transfer, unless otherwise provided by law or contract.

2. In cases where the alienation of property is subject to state registration, the acquirer’s right of ownership arises from the moment of such registration, unless otherwise established by law.”

Digressing a little from the topic, I will draw attention to the unsuccessful wording of paragraph 2 of Article 223 of the Civil Code of the Russian Federation: it uses the term “ALIENATION” in the context of its state registration. While everywhere else we are talking about RIGHTS, subject to state registration , here for some reason we are talking about ALIENATION OF PROPERTY, subject to state registration . By the way, we will not find any cases in the law the ALIENATION of property Everywhere we are talking about registration of rights, but not alienation. It would be more correct to state the idea contained in this paragraph as follows: “2. In cases of alienation of PROPERTY, RIGHTS TO WHICH ARE SUBJECT TO STATE REGISTRATION, the ownership right of the acquirer of this property arises from the moment of such registration, unless otherwise established by law.”

As we see from point 1. and 2. Article 223 of the Civil Code of the Russian Federation, for the emergence of ownership of property upon its alienation, the law may also determine a moment other than state registration.

Now let's turn to clause 3 of Article 433 of the Civil Code of the Russian Federation. It is about registration not of RIGHT, but of CONTRACT. Which contracts are subject to state registration is determined by law for each type of contract separately. Those. We clearly see that registering the right to property and registering a contract are different phenomena. But what is important here in relation to real estate: rights to real estate are subject to state registration (Article 131 of the Civil Code of the Russian Federation), but not all contracts for the alienation of real estate are subject to registration, but only the purchase and sale of residential premises, and the sale of an enterprise (Clause 2 of Art. 558, clause 3 of article 560 of the Civil Code of the Russian Federation).

Well, now we come to the final: Article 251 of the Civil Code of the Russian Federation.

Its full text: “The share in the right of common ownership passes to the acquirer under the agreement FROM THE MOMENT OF CONCLUSION OF THE AGREEMENT , by the AGREEMENT OF THE PARTIES .

The moment of transfer of a share in the right of common ownership under an agreement subject to state registration is determined in accordance with paragraph 2 of Article 223 of this Code.”

What happens? Rights to real estate are subject to state registration. However, the moment at which these rights arise does not always coincide with the entry into the register, and the law may determine a different moment at which they arise. As a general rule, a real estate sale agreement is not subject to state registration. At the same time, registration of rights to real estate and registration of a contract for the sale of real estate are different phenomena! Article 251 of the Civil Code of the Russian Federation provides for a special case of the emergence of ownership rights in the acquirer of a share in the right of common ownership - from the moment the contract is concluded! NOT from the moment of registration of the transfer of ownership in the register, if we are talking about real estate, but from the moment the contract is concluded. A contract for the sale and purchase of a share in the ownership of real estate is considered concluded from the moment it is signed by the parties . This means that from that very moment the share in the ownership of the real estate passes to the acquirer, regardless of whether an entry to this effect is made in the register! It turns out to be an absolutely ridiculous and monstrous situation! The transfer of rights to real estate occurs from the moment of state registration, and the transfer of a SHARE in the ownership of real estate occurs from the moment of conclusion of the contract!

The second paragraph of Article 251 of the Civil Code of the Russian Federation does not solve the problem, but rather aggravates it. Since it considers only the case of transfer of a share in the right of common ownership not to property, the rights to which are subject to registration, but under an agreement subject to state registration. But we have already found out that the contract for the sale of real estate is not subject to state registration, with the exception of the sale of residential premises and enterprises. In this case, we have a paradox. When selling a share in the ownership of an office, or warehouse, etc. the share must pass to the acquirer from the moment the contract is concluded, and not from the moment of state registration (paragraph 1 of Article 251 of the Civil Code of the Russian Federation).

In all this we see an example of an unsuccessful legislative technique, in which clearly contradictory and inconsistent positions are formed in the law, which can create many problems in their practical application. Paragraph 2 of Article 251 OF COURSE wanted, but could not cover the case of transfer of a share in the ownership of property, the rights to which are subject to state registration. But for some reason unknown to us, he described only the case of alienation of a share under an agreement subject to registration. It is clear that this is clearly not enough and cases of sale of a share in the right to real estate are not COVERED by paragraph 2 of Article 251 of the Civil Code at all.

You can try to solve this problem by arguing that paragraph 1 of Article 251 of the Civil Code is not the exception at the moment of emergence of the right of ownership, which is discussed in Article 8.1 and Article 223 of the Civil Code. But I see one of the obstacles to such reasoning in determining the nature of the share in property rights. When selling a share in the ownership of a thing, what am I selling after all: the thing itself or a share in the right? If we recognize as the object of sale and purchase the THING ITSELF, which is in shared ownership, despite the fact that it is not the ENTIRE thing that is alienated, but a share in the ownership of it, then we can conclude that paragraph 1 of Article 251 of the Civil Code covers only cases sales of shares in the ownership of movable things, the rights to which are not subject to state registration. If we recognize that a share in the right of ownership acts as a certain special OBJECT of law or turnover, then we will inevitably have to come to the conclusion that paragraph 1 of Article 251 of the Civil Code of the Russian Federation provides for a SPECIAL rule for the moment of transfer of the right to this SPECIAL object - a share in the right - from the moment concluding an agreement for its sale. This conclusion is somewhat hinted at by a comparison of Article 251 with Article 223 of the Civil Code. Clause 1 of Article 223 of the Civil Code states “The right of ownership of the acquirer of an THING under an agreement arises from the moment of its transfer, unless otherwise provided by the LAW or the agreement.” Please note: THINGS, and except as provided by LAW.

Paragraph 1 of Article 251 says “ The share in the right of common ownership passes to the acquirer under an agreement FROM THE MOMENT OF CONCLUSION OF THE AGREEMENT , by the AGREEMENT OF THE PARTIES .”

The word thing is not present here at all (it does not say “share in the ownership of a thing”), and an exception can be made by AGREEMENT OF THE PARTIES, but not by law.

Clause 2 of Article 223, although it speaks of a certain amorphous concept of “alienation” for the purposes of state registration, nevertheless implies registration of the transfer of rights. For some reason, the second paragraph of Article 251 of the Civil Code covers only the rarest cases of registration of contracts, but not rights.

Whether a share in property rights is a specific object or not is a debatable question and requires detailed study. I think not. For me, a share in the right of common ownership has an OBLIGATIONAL nature, and determines only the scope of the rights and obligations of the shared co-owners in relation to each other. But let that be a subject for another discussion.

Here we will only dwell on the fact that Article 251 of the Civil Code of the Russian Federation, with the wording that is now presented in it, requires critical reflection and discussion, the result of which should be a new edition of this article.

I propose the following wording of Article 251 of the Civil Code of the Russian Federation:

“1. The share in the right of common ownership of the PROPERTY passes to the acquirer under the contract from the moment the contract is concluded, unless otherwise provided by LAW OR

2. THE SHARE IN THE RIGHT OF COMMON PROPERTY TO PROPERTY, THE RIGHTS TO WHICH ARE SUBJECT TO STATE REGISTRATION, TRANSFERS TO THE PURCHASER UNDER AN AGREEMENT FROM THE MOMENT OF THE STATE REGISTRATION OF THE TRANSFER OF THE SHARE IN THE RIGHT OF COMMON PROPERTY, UNLESS OTHERWISE PROVIDED BY LAW NOM.

3. The moment of transfer of a share in the right of common ownership under an agreement subject to state registration is determined in accordance with paragraph 2 of Article 223 of this code.”

Options for transferring property owned by the company to another person

When transferring property as a contribution to the authorized capital, it is necessary to take into account that the transferring party is obliged to restore VAT. Tax amounts are subject to restoration in the amount previously accepted for deduction, and in relation to fixed assets - in the amount proportional to the residual (book) value without taking into account revaluation (subclause 1, clause 3, article 170 of the Tax Code of the Russian Federation).

In tax accounting, the restored tax is not included in the value of the transferred property. It is, as it were, in excess of the value of the property, transferred to the company, the founder of which is the organization, and then accepted for deduction by the receiving party.

The tax amount is restored and transferred to the budget. An invoice is not issued, but the details of the invoice for which the deduction was initially claimed when purchasing this property are recorded in the sales book. In this regard, the recently published letter of the Ministry of Finance of Russia dated May 20, 2008 No. 03-07-09/10 is interesting. It says that if an organization does not have invoices for fixed assets due to the expiration of their storage period, when restoring the amounts of VAT accepted for deduction on these fixed assets, it is possible to register an accountant’s certificate in the sales book, which reflects the amount of VAT, calculated in the manner established by paragraph 3 of Article 170 of the Tax Code.

The calculation of VAT subject to restoration is carried out using the tax rates in effect during the period of application of tax deductions.

At the same time, it is reported that this letter from the Department does not contain legal norms or general rules specifying the regulatory requirement, and is not a regulatory legal act. Referring to the letter of the Ministry of Finance of Russia dated 08/07/2007 No. 03-02-07/2-138, it is said that this letter is of an informational and explanatory nature on the application of the legislation of the Russian Federation on taxes and fees and does not interfere with following the norms of tax legislation and fees in an understanding different from the interpretation set out in the letter.

Currently, the procedure for accounting for transferred VAT is not provided for by regulatory legal acts on accounting. At the same time, the Ministry of Finance of Russia provided clarifications in letters dated December 19, 2006 No. 07-05-06/302, dated October 30, 2006 No. 07-05-06/262, according to which when transferring property as a contribution to the authorized capital of another organization, the amount of VAT is reflected in the debit of the VAT account in correspondence with the credit of the additional capital account.

In practice, situations are possible when the constituent documents of the LLC participants establish that the transferred right to deduct VAT also forms a contribution to the authorized capital. In this case, both the transferred property itself and VAT, which is essentially a transferred right with a monetary value, will form the authorized capital of the LLC and, therefore, will be reflected in the credit of account 80 and on line 410 “Authorized capital” of the balance sheet.

Registering the transfer of copyright: which agreement to use?

To transfer copyright in a work, you must sign a written agreement. Note that it comes in several types:

If you sign an author's order agreement, then within the framework of this agreement the Contractor is obliged to do some creative work for the Customer. It is important to mention here that the rights to the work are transferred to the Customer, otherwise they are retained by the author. The transfer of copyright in the contract can be provided either fully or partially (according to established restrictions). The performer in this type of agreement is exclusively an individual, and a mandatory condition of such an agreement will be remuneration to the author and deadlines for execution.
under a contract for the creation of a work, performers can be not only individuals, but also legal entities or individual entrepreneurs. The exclusive right under such a document belongs to the Customer by default, unless otherwise specified.
upon concluding a license agreement, the Customer is given the opportunity to use the work to a certain (limited) extent within a specified time period.

Paragraph 5 of Article 1235 of the Civil Code of the Russian Federation establishes that under a license agreement the licensee undertakes to pay the licensor the remuneration stipulated by the agreement, unless otherwise provided by the agreement.

If there is no provision in the paid license agreement regarding the amount of remuneration or the procedure for determining it, the agreement is considered not concluded. In this case, the rules for determining the price provided for in paragraph 3 of Article 424 of this Code do not apply.

Thus, based on paragraph 5 of Article 1235 of the Code, the license agreement is assumed to be compensated, unless the agreement itself expressly provides otherwise.

In addition, paragraph 13.6 of Resolution No. 5/29 states that if the license agreement does not directly provide for its gratuitousness, but at the same time it does not agree on the condition on the amount of remuneration or on the procedure for determining it, the corresponding agreement by virtue of the second paragraph of paragraph 5 of Article 1235 The Civil Code of the Russian Federation is considered unconcluded.

From the above rules it follows that the conclusion of a free license agreement is permitted.

An important part of such a document is its subject (any work) and options for using the work by the customer (timing, geography, reproduction capabilities, etc.). A license can be either simple or exclusive. A simple license will allow the Customer to issue the same licenses to third parties, while an exclusive license will deprive him of this opportunity.

under the agreement on the alienation of exclusive rights, the Customer receives the rights in full. Such a document does not specify any restrictions, since in this case it may be considered licensed in court.
an employment or civil law contract may provide for the use of exclusive rights to a work created by an employee at the request of the Employer. Such a work will be considered proprietary and all conditions must be specified in the contract with the Employee.
copyright can be transferred under a contract for the performance of work, the result of which is one or another creative result. It is important to note here that the exclusive rights to the created work must necessarily belong to the Customer.

According to Art. 1234 of the Civil Code of the Russian Federation, when transferring an exclusive right under an alienation agreement, the transaction will need to be registered with Rospatent. The license agreement also requires state registration. Such registration occurs on the basis of an application from the parties accompanied by a notice of disposal of exclusive rights, a notarized extract from the agreement and the agreement itself.

Property registration

Registration of property is considered completed after registration in the branches of Rosreestr. You can entrust a developer or a lawyer to obtain a certificate of ownership, or you can contact the government service yourself.

To register ownership of an apartment purchased under a shared construction agreement, you will need:

deed of transfer;
passports of all buyers;
equity participation agreement, annexes and amendments thereto;
state duty (2000 rubles) is paid at the bank;
power of attorney (with the participation of a representative).

The developer sends the following to the Rosreestr authorities once (for registration of all apartments in the building):

technical passport for a residential building;
permission to commission;
certificate of assignment of BTI address;
plan of the new building indicating apartments and shareholders;
insurance contract.

Registration of property with the authorities of Rosreestr in Moscow is usually carried out within 12 days. The exact date of receipt of the certificate is indicated in the receipt issued by the civil service employee when accepting the documents.

After receiving a certificate from Rossreestr, the shareholder is considered the full owner of the property. Has the right to dispose of housing at his own discretion: sell, bequeath, change, mortgage, etc. To register at the place of residence, it is enough to provide a certificate of ownership to the passport office.

What form of property transfer is the most beneficial for our situation?

Hello Roman!

1. The son has the right to an obligatory share and inherits, regardless of the contents of the will, at least half of the share that would be due to him in case of inheritance by law, provided that the son:

- is incapacitated,

- is a disabled dependent of the grandmother, if at least a year before the death of the testator - the grandmother was dependent on her, regardless of whether they lived together or not;

- reached the age of 60 years.

The court may reduce the size of the obligatory share or refuse to award it, provided:

- the application of the right to an obligatory share will entail the impossibility of transferring to the heir under a will property that the heir entitled to an obligatory share did not use during the life of the testator, but the heir under the will used for living (a residential building, a dacha, etc.) or used for as the main source of livelihood (tools, creative workshop, etc.) (Article 1148-1149 of the Civil Code of the Russian Federation).

2. There is no need to pay gift tax if the donor and recipient are family members and (or) close relatives (in direct ascending and descending lines), including grandmother and grandson (Clause 18.1 of Article 217 of the Tax Code of the Russian Federation) .

The great-aunt is not listed as a close relative in the law. Accordingly, you need to pay a tax in the amount of 13% of the cadastral value of the property received under a gift agreement (Article 214.10, 224 of the Tax Code of the Russian Federation).

A tax rate of 13% applies to an individual who is a tax resident of the Russian Federation.

3. When selling real estate, the grandmother should not pay tax if she has owned the land and house for more than 3 (three) years, provided:

1) ownership of the object has been obtained:

- by inheritance or under a gift agreement from a family member and (or) close relative;

- as a result of privatization;

— as a result of the transfer of property under a lifelong maintenance agreement with dependents;

2) on the date of state registration of the transfer of ownership from the grandmother to the buyer of the sold object, there is no other residential premises in the property of the grandmother.

In other cases, to be exempt from paying tax, you must own the property for at least 5 (five) years.

If there are grounds, you can receive a property tax deduction when selling an object if you own it for less than the specified period; when purchasing an object.

4. The size of the life annuity can be determined in the contract in agreement with the grandmother.

According to the annuity agreement, it is possible to establish the obligation to pay annuity indefinitely or for the life of the grandmother. A life annuity can be established on the terms of the lifelong maintenance of a dependent grandmother.

You can refuse further payment of rent by purchasing it (Article 592 of the Civil Code of the Russian Federation).

5. To answer your question accurately, you need to know the details of your situation, whether your grandmother currently agrees to sell or give you real estate.

If the grandmother does not agree, you can draw up a life annuity agreement and subsequently offer a buyout.

You can contact the chat to order the drawing up of an agreement and documents.

Succession and transfer of rights

As part of the work on the commentary on the provisions of the Civil Code on property rights, I will post very preliminary sketches on the topic of maintaining encumbrances during the initial acquisition of ownership. The text is laid out in sublimated form for ease of reading. If you are not too lazy, comment, criticize, advise, share links to practice, authoritative teachers. Make real rights great again!

It is believed that the initial (not based on succession, original) acquisition of ownership should lead to the termination of previously existing encumbrances on the ownership of this thing (for example, mortgages, easements, etc.).

Is this approach based on literal law? It seems so. Clause 3 of Art. 216 of the Civil Code provides that the transfer of ownership of property to another person is not grounds for termination of other proprietary rights to this property. The law speaks specifically about the “transition” of rights, that is, apparently, it means the preservation of limited real rights only when acquiring property rights by another person on the basis of legal succession.

This idea is expressed with utmost clarity in paragraph 1 of Art. 353 of the Civil Code: “In the event of transfer of rights to the pledged property from the pledgor to another person as a result of paid or gratuitous alienation of this property (except for the cases specified in subparagraph 2 of paragraph 1 of Article 352 and Article 357 of this Code) or in the manner universal succession, the pledge is preserved.” As we see, the norm clearly refers only to cases of succession – both singular and universal.

The easement is also preserved in the event of transfer of rights to the land plot, which is encumbered by this easement, to another person, unless otherwise provided by the Civil Code (clause 1 of Article 275 of the Civil Code). The list can be continued, for example, by pointing to paragraph 1 of Art. 617 of the Civil Code: “The subsequent transfer of real rights to the leased property by force of law entails encumbering the rights of the new title owner of the leased property with the rights of the tenant” (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated February 22, 2011 No. 13262/10).[1 ] Article 675 of the Civil Code conveys this idea literally: “The transfer of ownership of residential premises occupied under a lease agreement does not entail the termination or modification of the residential premises lease agreement. In this case, the new owner becomes a lessor under the terms of the previously concluded lease agreement.”

Thus, this approach seems to be confirmed by the text of the law: the property of succession works in the case of derivative acquisition.

This impression is strengthened by existing legal instructions in cases where, upon termination of ownership rights (in particular, due to the destruction of a thing), the limited right survives and burdens the new ownership right (preservation of an easement during the division, etc., of a land plot). Such exceptions are a classic illustration of Cicero's rule: “an exception confirms the existence of a general rule from which an exception is made.” In other words, since the legislator makes such an exception, it means that in other, not directly specified cases, a different, general approach applies.

Let's go back to the collateral example. Since the pledge follows the collateral only in the event of a “transfer of right,” this rule should not apply during the initial acquisition. Article 352 of the Civil Code, which specifies cases of termination of a pledge, however, does not indicate as such the initial acquisition of ownership of the subject of pledge. However, she mentions that the pledge is also terminated in “other cases provided for by law (subparagraphs 5, 10, paragraph 1),” which means the way is open for such a systematic interpretation of paragraph 1 of Art. 353 and paragraph 1 of Art. 352 of the Civil Code, according to which the termination of the pledge in the described case will be the same as “another case provided for by law.”

Let's consider an example with the bona fide acquisition of the right to a thing in the sense of Art. 302 Civil Code. For example, a person acquired from an unauthorized alienator an item that had previously been pledged by its owner. Of course, on the side of the bona fide purchaser of the pledged item, sub. 1 clause 1 art. 352 of the Civil Code, according to which the pledge is terminated if the pledged property is acquired for compensation by a person who did not know and should not have known that this property is the subject of the pledge. But what if the purchaser knew or should have known about the existence of an encumbrance - for example, a mortgage on the purchased item was registered in the Unified State Register of Real Estate? We can also consider the example of pledging a car purchased in good faith, the notice of collateral of which was contained in the RUZDI.

So, despite the opportunity to find out about the pledge established by the owner of the thing (or even knowledge about the pledge), the buyer agrees to purchase it from the alienator who turned out to be unauthorized and - if there are appropriate grounds - becomes the owner of the thing in the original way. Well, then the buyer, referring to the initial nature of the acquisition (having learned about it, for example, during the proceedings of a vindication claim) of the right, declares freedom from the collateral encumbrance. And indeed, a formal systematic interpretation of the provisions of Articles 352 and 353 of the Civil Code will lead us to the inevitable conclusion that the pledge is terminated, regardless of the acquirer’s knowledge of the existence of the pledge.

However, this approach too obviously contradicts the basic principles of civil legislation, in a systematic relationship with which all provisions of the Civil Code are subject to interpretation (clause 1 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 23, 2015 No. 25). The behavior of the acquirer of a thing, who knew about the pledge upon acquisition, but refers to its disappearance due to the lack of succession, comes into clear conflict with the requirement of conscientious behavior and the prohibition to take advantage of one’s illegal or dishonest behavior.

At the moment of his expression of will aimed at acquiring the right of ownership, the acquirer does not know about the “originality” of his acquisition - otherwise he would not be in good faith and would not have acquired the right of ownership - and his will is aimed at acquiring the right of ownership with all encumbrances. The understanding of “originality” comes only later. Therefore, if a person has agreed to acquire ownership rights with encumbrances, he cannot deny this - this will be venire contra factum proprium (I know that estoppel is bad manners, but excuse me).

So, the requirement of good faith and the spirit of the law (sorry again!) require that the encumbrance must be preserved upon acquisition of ownership by a bona fide purchaser in the manner provided for in Art. 302 of the Civil Code, if the acquirer knew or should have known about the existence of an encumbrance.

The fact that this approach can be considered a general rule for a bona fide acquisition from a non-owner is evidenced by European experience. Article 3:102 of Book VIII of the DSFR establishes the rule according to which a bona fide purchaser will receive the right of ownership free from encumbrances only if he was in good faith mistaken about their absence. The drafters' comments provide examples of how most European legal orders take the same approach.

A similar rule was formulated by the Supreme Arbitration Court: “A bona fide acquisition is the initial method of acquiring ownership, in which the acquired property is freed from any encumbrances that the acquirer did not know and could not know about” (Determination of the Supreme Arbitration Court of the Russian Federation dated January 29, 2007 No. 16611/06). This opinion was also expressed in Russian literature. For example, V.A. Bagaev O.[2] K.I. Sklovsky: “In my opinion, however, the preservation of encumbrances is possible insofar as the acquirer was not in an excusable misconception about them” (Sklovsky K.I. Property in civil law. M.: Statute, 2010. Ch. 16) .

In accordance with this approach, the law of preservation of encumbrances, that is, the presence or absence of succession, consists of a simple rule: if the acquirer knows (or should know) about the content of the right, including existing encumbrances, there must be succession.

Thus, no matter what type of acquisition we are talking about - initial or derivative, and no matter what we put into these terms, the acquirer’s knowledge of the presence of encumbrances should entail the preservation of these encumbrances - at least in the form of a general rule, deviation from which should be provided for by law explicitly and unambiguously.

[1] For a number of reasons, the description of which would take too much space here, I cannot agree with the point of view that paragraph 1 of Art. 617 of the Civil Code only means the preservation of the obligation of the previous lessor to provide the thing to the lessee.

[2] Bagaev V.A. Acquisitive prescription as the initial method of acquiring property rights. The basis for the separation of initial and derivative methods of acquiring property rights // Bulletin of the Supreme Arbitration Court of the Russian Federation No. 1/2010 P. 89-90.

Transactions with residential premises have their own distinctive features, this is due to the fact that the regulation of legal relations in this area is subject to the norms of not only civil, but also housing and family legislation.

The norms of civil and family legislation significantly influence the nature of legal relations in the housing sector. These norms (according to Part 1 of Article 7 of the Housing Code of the Russian Federation) apply always when housing relations are not regulated by housing legislation or by agreement of the participants in such relations, and the norms of civil and family law directly regulate these housing relations and do not contradict their essence.

Transactions with residential premises affect not only the right of ownership, but also other property rights. These property rights include the following: 1) the right to use residential premises by the annuity recipient under a lifelong maintenance agreement; 2) right of residence based on a testamentary refusal; 3) the right to use residential premises by a member of the owner’s family. In addition, the rights to use residential premises can be based on an agreement between the owner and the tenant of this premises or on an agreement on free use, as well as on an agreement on moving into the premises as a family member. It is also not uncommon for persons under guardianship to have the right to use other people’s residential premises.

Taking this into account, the reflection in the text of the agreement of the circle of persons who retain the right to use the alienated residential premises is essential not only for these persons, but also for the acquirer himself.

The practice of concluding transactions in the housing market is replete with cases when the seller prefers to remain silent about the existence of rights of third parties to his premises. As a rule, standard texts of contracts contain a clause guaranteeing the absence of prohibitions and encumbrances on the alienated real estate. An unscrupulous seller excludes the clause on the rights of third parties from the contract. In this case, the concluded transaction has signs of an invalid transaction made under the influence of misconception (Article 178 of the Civil Code of the Russian Federation). The erring party will be the acquirer. By virtue of Art. 460 and 168 of the Civil Code of the Russian Federation, as well as paragraph 7, clause 1, article 20 of the Registration Law, such a transaction is not subject to registration as invalid.

It should be recalled that an agreement for the purchase of residential premises is considered concluded not when the parties have reached an agreement on all essential issues (“conditions” - Article 432 of the Civil Code of the Russian Federation), but from the moment of state registration of such an agreement (Article 558 of the Civil Code of the Russian Federation). Accordingly, the transfer of the right to residential premises is considered completed at the time of state registration of the transaction (Article 223 of the Civil Code of the Russian Federation), and not from the moment of payment and transfer of the premises from hand to hand. A transaction is considered failed if state registration is refused.

There is a situation in which the reality of the transfer of the right to housing depends not only on the fulfillment by the parties of the obligations assumed under the transaction (transfer of property, payment, etc.), but also depending on the parties’ compliance with the requirements and procedures prescribed by law. In this case, the rule formulated in Art. 209 of the Civil Code of the Russian Federation, which states that the owner has the right, at his own discretion, to take any actions in relation to his property that do not contradict the law and other legal acts and do not violate the rights and interests protected by law of other persons.

Among the essential conditions of paid transactions with residential premises, the law (Articles 552, 554, 555, 558,567 of the Civil Code of the Russian Federation) includes, in addition to the definition in the contract of the subject, price, simultaneous transfer of a residential property with the transfer of rights to a land plot, also the requirement indications of persons retaining the rights to use the premises. As a rule, this condition is based on the existence of certain obligations of the seller to third parties (persons) and these obligations, by agreement of the parties to the transaction, are assigned to the new owner of the residential premises.

Let us consider in order possible cases of preservation of the right to use residential premises by various entities after the transfer of the right to this premises.

1. Preservation of the right of use by testamentary refusal. A citizen living in residential premises provided to him by testamentary refusal (legatee) is not deprived of this right when the owner changes within the period specified by the will (as a rule, this period is set for life) (Clause 2 of Article 1137 of the Civil Code of the Russian Federation). The buyer of residential premises must be aware of this and agree to enter into a transaction for the purchase of housing taking into account this circumstance. When registering such a transaction, the presentation of a document (will) giving rise to these rights, or a notarized copy thereof, is mandatory.

2. Right based on the rental agreement. When concluding a rental agreement for residential premises (both social and private), the owner may be limited or even deprived of the right to use the premises, depending on the conditions included by the parties in the rental agreement. According to Art. 675 of the Civil Code of the Russian Federation, the transfer of ownership of residential premises occupied under a lease agreement does not entail a change or termination of the agreement. In such cases, the contract for the alienation of residential premises must contain an essential condition - a list of users, which includes the tenant and all persons permanently residing with him. The terms of the lease agreement are limited in duration and must be known to the buyer, since both the obligations and rights of the lessor are transferred to him. When state registration of a transaction for the purchase and sale of residential premises with the condition of preserving the rights of the tenant, a lease agreement detailing the obligations of the parties must be submitted for registration and a copy of such an agreement must be placed in the file of title documents.

3. The right to indefinite residence in residential premises is reserved for the member(s) of the owner’s family who refused to participate in privatization, if at the time of privatization of this residential premises, this family member lived and had equal rights to use this premises with the person who privatized it (Article 19 of Law No. 189 Federal Law of December 29, 2004). This right is also reserved for the former family member of the owner of the privatized home. Accordingly, in the event of transfer of the right to privatized housing, paragraph 2 of Article 292 of the Civil Code of the Russian Federation cannot be applied. The Plenum of the Supreme Court of the Russian Federation, in Resolution No. 14 dated July 2, 2009, summarizing the judicial practice of applying the provisions of the Housing Code, indicated the existence of rights of users of privatized residential premises. The court explained that since “... former family members, giving consent to the privatization of the premises occupied under a social tenancy agreement, without which it would have been impossible, proceeded from the fact that the right to use this premises, for them, would be of an indefinite nature. Consequently, it must be taken into account when transferring ownership of residential premises on the appropriate basis to another person (for example, purchase - sale, exchange, donation, rent, inheritance)." The state registrar, when conducting a legal examination of documents on transactions with privatized premises, must take into account the rights of possible users and the negative consequences. The new owner cannot evict former family members of the seller of the residential premises from the residential premises if they renounced their right to shared ownership at the time of privatization of this premises. In the event that the seller managed to hide the fact of the existence of rights of use of third parties, the new owner has the right to file a claim in court to declare the transaction invalid as made under the influence of misconceptions regarding the consumer qualities of the purchased object (Articles 168, 178 of the Civil Code of the Russian Federation) .

4. The rights of use of persons moving in as family members of the new owner of the residential premises. When drawing up contracts for the purchase and sale of housing, the parties to the transaction do not need to mention members of the buyer’s family as persons retaining the right to use the premises. This right is guaranteed and protected by law (Clause 2 of Article 31 of the Housing Code of the Russian Federation) the owner of the property does not have the right to prohibit members of his family from using the premises.

In practice, situations increasingly arise when the parties to a transaction come to an agreement to retain the seller’s right of residence after the transfer of the right to the premises to the buyer. In this case, the parties to the transaction are not related by family relations. The state registrar is often unable to understand the motivation and logic of such an arrangement. The inclusion of such a condition in the purchase and sale agreement as an essential one must be based on the law, and not on the contract (Article 558 of the Civil Code of the Russian Federation). The owner has the right to move into residential premises and assign rights of use to any persons, unless this violates the law and the rights of third parties. Moving into a premises based only on an agreement (not based on an article of law) cannot be considered one of the essential conditions of the contract for the sale and purchase of residential premises.

The law binds the owner with the obligation to preserve the right of residence for family members. At the same time, in addition to persons recognized by law as members of the same family (spouse, children and parents, provided they live together), other relatives, as well as other persons moved in by the owner of the residential premises, may also be considered members of the same family. as members of their family (Article 10 of the RF IC, Article 31 of the RF LC). Since moving in as a family member requires documentary confirmation of the will of the owner and the person moving in, a written agreement is required that contains all the conditions for such moving in. Such an agreement does not require mandatory notarization. Thus, if, during the purchase and sale of residential premises, the parties agree to include in the contract a condition for maintaining the seller’s residence, a mandatory annex to such an agreement may be an agreement on the moving in of the former owner as a family member. Such an agreement may contain specific conditions of use, have a list of specific isolated premises permitted for use, terms of payment for the consumption of utilities and other conditions. The inclusion in the contract of purchase and sale of housing of a condition to preserve the seller’s residence, which is not based on an agreement to move in as a family member, will not have legal force. Without a separate agreement, it cannot be classified as an essential condition based on the provisions of the law, since the user’s status will not be determined. The right of use is not directly related to maintaining registration at the place of residence and its presence or absence is not a determining condition for recognizing the user as a member of the owner’s family (Resolution of the Plenum of the Supreme Court of the Russian Federation of July 2, 2009 No. 14). The owner who undertakes to respect the right of use of the person being moved in and recognized as a family member must be aware of the legal consequences of such a step. At the same time, subsequent alienation of residential premises does not preserve the right of the “university as a family member” to use this premises.

State Registrar Kovalev S.A.