Buying an apartment by assignment of rights, what does assignment of rights mean when buying an apartment

Before agreeing to a profitable purchase of real estate, it is worth finding out what assignment of rights means when buying an apartment. This seemingly profitable procedure for transferring housing has its own characteristics and risks.

What is the essence of assignment

Purchasing an apartment by assignment of rights or an assignment agreement is a common mechanism when selling real estate not directly from the developer. You can make such a purchase only until the house is put into operation. It is understood that the new owner takes over all the responsibilities of the former, or rather the shareholder. In this case, the buyer receives all the rights under the DDU, but also the obligations. That is, he must make payments according to a previously developed schedule; it will not be possible to change the level of interest and other terms of the contract.

Important! At the moment, about 30% of people who want to buy real estate in a new building take advantage of the opportunity to purchase an apartment under an assignment agreement.

Often investors buy apartments in blocks, floors, and then when construction comes to completion they sell the property at a higher price using a cess. Unforeseen circumstances may also prompt such a step if it is not possible to pay the fees.

The assignment of the right of claim does not mean receiving ownership of the apartment - it means that the seller transfers the right of claim for its future transfer into ownership.

Advantages and disadvantages

Buying an apartment under an assignment agreement is profitable and dangerous at the same time, so before deciding on such a transaction you need to weigh all its aspects. If the transaction is carried out in accordance with the letter of the law, it is not disputed and is completely legitimate. Most often, such housing is cheaper than that of a developer or an apartment for which ownership has already been registered.

Do not forget that when an apartment is ceded, obligations are imposed on the new participant. The most dangerous in this case are the risks associated with the developer, including:

1. Violation of deadlines for delivery of the object.
2. Poor quality apartments.
3. Bankruptcy.
4. Other violations.

Before agreeing to purchase by assignment of rights, you need to thoroughly study the DDU, evaluate its conditions, terms of commissioning, etc. It would be a good idea to visit the construction site to see the situation with your own eyes. Only by assessing the transaction objectively, for this purpose it is worth involving specialists (lawyer, builder), will it be possible to eliminate the risks of such a procedure.

Important nuances

There are certain important points that must be taken into account when purchasing an apartment in this way, including:

• When registering an assignment, it is necessary to indicate in the agreement the type of original contract, which is the basis for the possibility of using this type of real estate sale. That is, the primary transaction between the developer and the first owner. This may be a share participation agreement or a preliminary purchase and sale.
• The amount and procedure for payment by the new shareholder must be present, otherwise the agreement is considered invalid.
• The availability of documents from the seller and their compliance with the developer’s papers must be checked personally and very carefully. If you are not confident in your knowledge, it is better to hire an expert.
• The agreement must be notarized.
• The seller is obliged to notify the developer of the upcoming assignment. Although the law does not require this, in practice it is necessary not only to agree, but to do it in writing. The developer may refuse to consent to the assignment only if the transaction is contrary to the law.

You can exercise the right to assign rights up to the signing of the transfer and acceptance certificate of the apartment, that is, putting it into operation.

Developers' opinion

The developer does not have the right to restrict shareholders in registering the assignment, at least such a rule is not spelled out in the law. But no one will stop him from influencing this situation. Often, primary agreements contain a clause regarding the obligations of the shareholder to notify the developer of the assignment.

Sometimes the DDU indicates a prohibition on assignment. This way, it is possible to avoid dumping on the part of investment companies, when they buy many apartments at the excavation stage and, when the house is almost ready, sell them much cheaper than the developer himself. They win anyway.

Based on practice, the developer is rarely against the assignment, and besides, it makes no difference to him who pays the fees, as long as they are paid on time. The only measure they practice is demanding payment of the entire amount of the contract.

In order to avoid any claims, it is better to invite the developer as a third party to the contract, so all parties will be safe from risks.

Sale-purchase of an apartment by assignment

There are some specific points that need to be taken into account when selling an apartment. So, if it was purchased during marriage, it will not be possible to sell it without the certified consent of the spouse. If the property is registered as joint property, personal presence is required.

As for the purchase of an apartment, the new shareholder actually replaces the previous one with all his rights and obligations. If the previous owner did not pay the contract amount in full, it will have to be paid according to the schedule specified in the first contract; it will not be possible to change anything. It is worth checking all the documents of the seller and the developer to minimize risks.

Following the transaction, the buyer must have the following papers in hand:

• The main, primary agreement under which the assignment was made.
• Confirmation of settlements under the main agreement.
• The act of transferring the specified documents.
• Written confirmation from the developer.
• The original of the assignment agreement that has been registered.

Risks

The greatest risks are associated with the recognition of the contract as invalid, and in this case both the buyer and the seller are at risk.

The reasons for this may be different, but in order not to fall into the trap of scammers, when drawing up an assignment agreement, it is necessary to indicate the actual cost that was paid/received. In this case, when the contract is terminated in court, everyone will remain to their own.

Moreover, undervaluation is inconvenient for the buyer, because he will be able to receive a tax deduction. If the amount paid is lower than the actual amount, then he will not be able to count on the entire deduction available to him.

If the apartment was registered with a mortgage, the new owner of the rights will be obliged to pay the mortgage according to the previously agreed terms. The assignment of the right of claim is welcomed by banks; when applying for a mortgage, this point may be indicated in the documents.

What is the difference between assignment and purchase of an apartment?

Upon assignment, the new owner, or rather the shareholder, receives the right and requirements to receive ownership of the apartment. This requirement can be made in the indefinite future, when the apartment is put into operation. As for the purchase and sale, when there is a certificate of ownership, that is, the apartment already belongs to a person, then the purchase of ownership rights occurs.

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The assignment agreement also transfers responsibilities, which is not possible with a purchase. An assignment is a transaction in which the seller is obliged to provide a whole package of documents and agree on the sale with the developer. All these documents must be recorded in a transfer and acceptance certificate, in which case it will be possible to avoid claims in the future.

With the purchase you don’t need anything like that, you only need a certificate of ownership and a document that is the basis for obtaining the right of ownership. The additional package depends on specific circumstances.

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Conclusion

Purchasing an apartment under an assignment agreement remains relevant and will remain so for a long time.

This is because many investors are interested in their own profit; they buy apartments at the start of construction, and at the moment when the object is almost ready, they successfully sell the property at a price 20-30% higher than what was spent. At the same time, the cost is still lower than what the developer himself asks.

Buying an apartment by assignment. What is an assignment, the purchase scheme in a new building and the specifics of the contract

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One of the possible options for buying a house is drawing up an agreement for the assignment of ownership. This form of agreement is not very common, so few people know how to draw it up correctly.

In this article we will look at all the features of such transactions, the documents that are needed to carry them out, as well as ways to verify them.

○ What is assignment of rights?

While the building is under construction, the shareholders, with whose funds it is being built, have in their hands equity participation agreements (EPA). On their basis, ownership will be registered after the house is delivered. But, despite the lack of ownership rights, the shareholder can sell his apartment, which will constitute a transfer of rights.

Assignment by a participant in shared construction of the rights of claims under the contract is allowed only after he has paid the contract price or simultaneously with the transfer of the debt to a new participant in shared construction in the manner established by the Civil Code of the Russian Federation (Clause 1 of Article 11 of the Federal Law “On Participation in Shared Construction” dated 30.12 .2004 No. 214-FZ).

Thus, under the assignment agreement, the buyer does not receive the apartment itself, but only the right to claim ownership of it after completion of construction.

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○ How can I buy an apartment by transfer?

Assignment of the right of claim is possible under two types of agreements:

1. Preliminary purchase and sale agreement. In this case, the right to claim the conclusion of the main contract, and not the transfer of the apartment, is subject to assignment. This form of agreement is not subject to mandatory state registration. But here you need to take into account that the transfer of financial resources should occur only after the conclusion of the main agreement, which governs the transfer of living space. The assignment of the right of claim is possible only in the period from the moment of concluding the preliminary agreement until the signing of the main one.
2. Under an equity participation agreement (DPA). Here, not only the right to receive an apartment is ceded, but also all obligations for shared contributions. Therefore, if they are not paid in full, then the buyer also receives an obligation for regular contributions. Assignment of rights is possible from the moment of conclusion of the contract until the signing of the transfer and acceptance certificate. The assignment agreement under the DDU is subject to state registration. Here we must take into account that the new owner receives the rights to the apartment to the same extent as the previous owner had. Therefore, it is very important to indicate in as much detail as possible the basis for the transfer of the right of claim, as well as the conditions of the DDU.

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○ Procedure for purchasing an apartment by assignment

When concluding an assignment agreement, you need to follow a certain algorithm. The success of the transaction depends on compliance with all the necessary nuances.

✔ Checking the construction company

When checking a developer, you need to pay attention to:

• Duration of existence of the company.
• Relevance of constituent documents.
• Availability of a building permit.
• Availability of a long-term lease agreement for land or ownership of it.

✔ Collection of documents

To conclude a transaction, the seller must provide:

• Initial agreement (preliminary or DDU).
• The developer's consent to the assignment (if the seller has paid the share in full, only notification to the construction company is required, and if he still has unpaid debts, the developer must approve the assignment of the right).
• Consent of the second spouse to the transaction.
• All receipts for payment of equity contributions.

The buyer is required to:

• Personal passport.
• Consent of the second spouse to the transaction.

✔ Drawing up contracts

After providing all the documentation and checking it, an agreement on the assignment of the right of claim is drawn up. Here you need to take into account that the agreement is drawn up in the same form as the original contract.

If it was certified by a notary, the assignment agreement must also be certified.
The essential condition of this agreement is its subject, i.e. transfer of rights.

It is necessary to spell out in as much detail as possible what rights and to what extent are transferred under the agreement, as well as indicate the grounds for such a transfer.

All other terms of the agreement are additional and are introduced by agreement of the parties.

✔ Registration of assignment agreement

The agreement is subject to mandatory registration with Rosreestr.
To do this, you need to contact the Registration Chamber or MFC branch directly. Transfer of funds is carried out only after completion of the registration procedure. It takes from 5 to 10 days from the moment the application is accepted.

✔ Payment of duties

The amount of the state duty depends on the status of the parties to the transaction. So, for individuals it is 2,000 rubles, for legal entities – 22,000 rubles. If several applicants apply for registration, the amount of the state fee is divided equally between them, and each is issued a receipt for payment.

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○ What are the risks when purchasing by assignment?

When drawing up an assignment agreement, it is worth considering:

• The presence of not only debts on contributions, which are reflected in the agreement, but also fines for their delay.
• Possibility of concluding an unlimited number of similar contracts based on one initial agreement. Here you need to trace the entire chain, checking the information in Rosreestr. Only those contracts that have passed state registration will be valid.

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○ Features of purchasing a new building by assignment

The main feature of the assignment agreement, where the subject is an apartment in a new building, is the participation of a third party, the developer, in the transaction.

If the package of documents does not contain certified consent from the construction company, the transaction will be considered invalid.

Another feature is the possibility of concluding several assignment agreements during the construction of a house. After its commissioning, transfer of the right of claim is impossible.

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○ Registration of assignment “retroactively”

This type of agreement is possible when a long period of time passes between the signing of the transfer and acceptance certificate of the apartment and the registration of its ownership. There are two options here:

• Changing the date of the acceptance certificate by agreement with the developer.
• Changing the date of the preliminary purchase and sale agreement (if it has not yet passed state registration).

This scheme has its own risks, the main of which is changes in the cost of housing. So, if you pay 5 million rubles for it, and the contract indicates the amount of 4 million rubles.

(estimated at the specified date of signing), then in the event of termination of the transaction you will only be able to return what is specified in the agreement.

Thus, purchasing an apartment by assignment of rights has its pros and cons, which are assessed by each buyer personally.

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○ Advice from a lawyer:

✔ Is it possible to formalize an assignment under an equity participation agreement?

This is the most optimal assignment option for each of the parties. For the seller, this is an opportunity to avoid fines for terminating the contract, and for the buyer, this is a favorable price for housing and guarantees of its registration as property.

✔ When is it possible to buy an apartment by transfer of rights?

This is possible when purchasing housing in a new building under an equity participation agreement, on the basis of which an assignment agreement is drawn up. You can also buy an apartment by assignment with the conclusion of a preliminary purchase and sale agreement.

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Director of the Residential Real Estate Department Ekaterina Nemchenko will talk about the pitfalls of buying an apartment by assignment.

Published by: Vadim Kalyuzhny , specialist of the TopYurist.RU portal

What does assignment mean when buying an apartment: from an individual, in a new building

Last modified: May 2023

At the moment, the real estate market is replete with various offers for the sale of apartments in new buildings and methods for purchasing them (DDU, mortgage, installment plan, etc.).

Along with the above methods of acquiring real estate, a method of selling housing in new buildings called assignment (assignment of the right of claim) is also gaining momentum in popularity.

Assignment can be provided for in different areas of law, but what does assignment of rights mean when buying an apartment, we will consider further.

Concept: subjects of assignment

The subjects of the assignment are the buyer (assignee) and the seller (assignor).

Such an agreement as an assignment of rights is very beneficial for both parties to the transaction, but only if the share participation agreement itself does not indicate the obligation of the shareholder to notify the developer himself about this.

The assignee is given the opportunity to purchase cheaper housing than when purchasing a ready-made property.

And the assignor has the benefit that it becomes possible to return the money invested, and in some cases, increase it by slightly increasing the price.

But in some cases, buying an apartment by assignment is associated not only with benefits, but also with the acquisition of an encumbrance to pay monthly payments, if the previous owner did not repay the entire amount under the DDU.

It also increases the risk of shareholders being left without housing and without money if the developer company turns out to be unscrupulous. And it’s good, if only they increase the period for putting into operation the MHD, in the worst case, they may declare themselves bankrupt. In such a situation, the wait to receive the treasured squares for use may drag on indefinitely.

But as practice shows, contrary to common sense, about 35% of all transactions for the sale and purchase of real estate are formalized by assignment. Investors in equity participation are most often ordinary citizens (individuals).

For whom, purchasing apartments under the DDU at the excavation stage is a good incentive to increase their capital by later reselling the housing at market value.

It is important for Russian citizens to know what the assignment of the right to an apartment in a building under construction is, and how to correctly formalize such an agreement. The transparency and legality of such transactions is not disputed if the procedure is based on legitimate programs recognized by Federal Law No. 214 and the amendments and additions of Federal Law No. 218 (ZhSK, DDU, PDKP).

In the event of complete closure by the assignor of obligations under the DDU, the assignee is transferred exclusively to the rights of claim, and to the developer the obligations to register ownership of the apartment on the basis of a share participation agreement and an assignment agreement. The legislation also allows for a transaction to assign rights without the official consent of the developer, but with mandatory written notification to him about this.

For everything to be legal, the following order must be followed::

• the assignor transfers to the assignee a complete package of documents relating to the conclusion of the initial transaction (DDU, housing cooperative, PDKP, confirmation of monthly contributions (receipts, payment orders, etc.), related certificates, mortgage lending agreement, etc.);
• the buyer, in turn, verifies the authenticity and legitimacy of the rights transferred to him, and then fulfills his obligations;
• Then the transaction itself is concluded, and the assignment agreement is registered in the Russian Register.

• According to Federal Law-218 “On Registration of Real Estate”, any transaction with it is subject to mandatory amendments to the Unified State Register of Real Estate, through registration of rights in the Rossreestr.
• The following documents must be attached to the assignment agreement:

• confirmation of rights to the apartment being sold (housing cooperative, DDU, PDKP, mortgage agreement, etc.);
• written permission for the transaction from the developer;
• technical documentation for MHD, plus permitting documentation for development;
• constituent documentation of the developer, etc.

The full package of required documents can be clarified at the registration authority itself.

Risks when assigning rights when buying an apartment

If there is no opportunity or desire to build yourself, then this type of housing purchase is the best option. But as statistics show, the assignment of rights to an apartment, like any other real estate transaction, carries not only benefits, but also corresponding risks, such as:

• Recognition of the assignment as imaginary, fictitious. There can be many reasons for this. But in order to get your finances back, the agreement must include the real price for the property.
• Fraudulent schemes associated with the dishonesty of the developer company, which sells the same real estate in new buildings under preliminary agreements not to one person, but to several.

But the risks associated with purchasing housing through assignment can be avoided. To do this, it is necessary to study the signed agreement in detail and formalize the transaction only on the basis of the DDU, which in turn undergoes legal registration.

Also, immediately before making a decision to purchase housing through assignment, it is worth carefully analyzing all the activities of the development company and focusing on the reliability of this company.

Is the assignor obligated to pay tax on the transfer?

 

In accordance with the tax code, any citizen of Russia is required to pay tax when receiving profit. And a transaction involving the assignment of rights is no exception.

Thus, we can conclude that tax legislation does not separate the transaction for the sale of real estate owned from that sold under the DDU. The tax must be paid in any case.

However, the amount of tax may be changed downward due to expenses incurred by the assignor.

In reality, the tax fee is paid exclusively on the difference between the amount of sale under the assignment and the funds spent under the DDU.

For example, an apartment purchased from a developer company cost 2 million rubles at the time of concluding the agreement, and when sold by assignment, the assignor increased the price by 500 thousand rubles. It is precisely on this amount (500 thousand rubles) that it is necessary to pay tax, which in our country is generally accepted at 13%.

From the above, we can conclude that the transaction concluded under an agreement for the assignment of rights is beneficial in all respects. And to avoid problems before or after it happens, you need to be more careful. Without legal skills, you can contact a lawyer who practices in this area and has sufficient experience in this.

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Assignment of an apartment in 2023: example of a contract, risks

The assignment of an apartment is one of the ways to acquire real estate ownership in an apartment building under construction. This is not a rare occurrence in the new buildings market, so it is important to take the contents of the contract and the documents submitted seriously. An agreement can be concluded between legal entities and individuals.

Transfer of rights to an apartment

In the case of purchasing an apartment by assignment of rights, two forms of registration are allowed:

1. Preliminary agreement. The right of demand is valid not in relation to the transfer of a specific apartment, but to the conclusion of a purchase and sale agreement. It is impossible to complete a transaction under this type of agreement, since it is only an agreement on the intention to conclude it in the future. Assignment of rights is permitted only until the main agreement has been concluded.
2. DDU. This is a more reliable agreement and is often used by bona fide participants. The assignment is carried out until the transfer deed is signed, and the agreement itself is required to be registered with Rosreestr.

The preliminary agreement is not subject to registration with Rosreestr. This simplifies the procedure, since you do not need to provide documents to submit for registration. But the buyer will be less protected, since the share participation agreement undergoes mandatory registration and officially records the rights.

The concept of assignment

An assignment or assignment agreement is regulated by Articles 388-390 of the Civil Code of the Russian Federation. They determine the conditions and period for the occurrence of the obligation. The assignment of an apartment in a new building cannot be called one of the methods of purchase and sale. This is a legally established procedure in which one of the parties to the agreement with the developer changes.

As a result, the buyer receives the rights and obligations under the main agreement between the developer and the buyer. This may be the right to demand that the apartment be transferred after the house is completed.

Also, by agreement with the construction company, it is allowed to continue payments under the contract if the previous buyer did not pay the full cost of the apartment.

Parties and form of agreement

Any subjects of law act as parties to the contract. If we are talking about buying an apartment in a building under construction, the following participants are recognized as parties:

1. Assignor. This is the person who transfers the right of claim. This is the seller who originally bought the property at an earlier stage of construction of the new building.
2. Assignee. This is the one who buys the right to claim under the preliminary purchase and sale agreement or PSA.

The advantage of purchasing an apartment under an assignment agreement

Transferring an apartment under an assignment agreement often becomes an advantage not only for the seller, but also for the buyer. The following positive points are highlighted:

• if all the apartments are sold out, you can choose housing in the house you like;
• sometimes the price is 20-25% lower than that of the developer;
• in the case of a mortgage, you can expect speedy occupancy or rental (read more about the nuances of purchasing an apartment with a mortgage), and not payment with the impossibility of using the apartment as when purchasing at the initial stage.

The seller can make a decent profit by selling a new building at a profit just before the property is put into operation. It is important that the contract is concluded at the initial stage of construction work.

But there is a greater risk for the buyer than when concluding a share participation agreement directly with a construction company. If the latter is declared bankrupt, payments are received first by the shareholders, and then by everyone else.

When is it possible to draw up a contract for the assignment of rights?

According to Art. 388 of the Civil Code of the Russian Federation determines the conditions for concluding an agreement. It can only be concluded within a specific period of time. Resale is allowed after the state registration of the DDU has occurred. But it is important to be in time before signing the transfer deed and registering ownership of the apartment. After this, regular purchase and sale is possible.

The shareholder cannot independently assign the right of claim if the agreement was drawn up in installments and is not currently repaid in full. In this case, replacing the shareholder is permitted with the consent of the construction company. The contract specifies the amount and the remaining debt passes to the buyer.

Drawing up an assignment agreement: algorithm of actions

When concluding an assignment agreement, a certain sequence of actions must be followed. The following is done step by step:

• inspection of a construction company;
• preparation of documents;
• drawing up and signing an agreement;
• registration with Rosreestr and payment of state duty.

When checking a developer, it is important to pay attention to the following:

• period of existence of the company;
• relevance of information from constituent documents;
• availability of long-term lease or ownership of land;
• availability of a building permit.

Art. 389.1 of the Civil Code of the Russian Federation defines both the requirements for real estate and the procedure for signing an agreement. Particular attention is paid to drawing up an agreement, according to which the first buyer assigns the right of claim to another person. The agreement must be drawn up in a similar form as in the original version. If a notary was present at the transaction, notarial support will be required.

The main requirement is to reflect as accurately as possible the subject of the contract, which is the transfer of rights, and not the sale of a specific apartment. It specifies exactly which rights are to be transferred. The important point is the basis for the transition. Everything else is considered only an addition and is included by agreement of the parties.

Notification of the conclusion of an assignment agreement

Documents for concluding an agreement

Before proceeding with the execution of the agreement, it is necessary to inform the developer in writing about the planned procedure. He can set a commission for the transaction. The following documents from the seller will be required:

• passport;
• the initial agreement, such as a PDU or preliminary purchase and sale agreement;
• consent from the developer, received in writing;
• consent of the seller’s spouse to the transaction if the property was purchased during marriage;
•  all receipts for payments made under the agreement.

The buyer only needs a civil passport and the consent of the spouse to the transaction if he is married.

 The developer's consent is not required if payment is made in full. It is only necessary to properly notify the developer about the planned transaction. If there are debts or the installment payment schedule has not come to an end, the mandatory approval of the developer is required.

Apartment assignment agreement

Registration of rights, terms, amount of state duty

If you are registering a DDU, it must be registered in accordance with the established procedure. You can submit documents to:

• Rosreestr;
• MFC;
• through a special form on the website of Rosreestr or State Services.

The registration period is 5-10 days, but much depends on the method of application. Documents will be registered faster when applying to Rosreestr, because this is where all actions are carried out. When applying through a multifunctional center, the period increases, since it takes time to send documents.

The state fee is paid along with the documents. Its cost is 2,000 rubles for individuals and 22,000 rubles for legal entities.

Risks when concluding an assignment agreement

One of the main risks is failure to complete construction. Therefore, it is necessary to carefully select the developer. It is important to study the number of current construction projects and housing offered for sale under assignment agreements. If there are many such apartments, this may indicate a problem with the developer.

There is a risk that the transaction will be declared invalid. Among the reasons are the declaration of the first shareholder as bankrupt and the lack of notification to the developer about the transfer of rights.

It is taken into account whether there are any minors among the owners. If the transaction is carried out without their participation, the guardianship authorities may later cancel it by court decision.

What to pay attention to when drawing up a contract to avoid dealing with scammers

There is a possibility of fraud, which includes multiple sales of one property, bankruptcy of the developer, and expiration of the lease on a construction site. To avoid such circumstances, it is important to devote time to thoroughly checking not only the seller, but also the construction company.

The following documents must be requested:

• extract from the Unified State Register of Real Estate;
• building permit;
• extract from the Unified State Register of Legal Entities;
• payment documents confirming settlements between the previous buyer and the construction company;
• the previous DDU and all additional agreements to it.

It is important to compare the submitted receipts with the developer’s stamp if payments were made in cash through the cash register.

When can a transaction be declared invalid?

In order for an agreement to acquire the right to claim a property to exist, it must meet a number of requirements. It is invalid if the following is not observed:

• the shareholder is obliged to deposit all funds;
• if the acquisition of primary property involved bank funds, the bank must evaluate the transaction;
• the developer approves the assignment agreement.

If at least one of the conditions is violated, the assignment becomes invalid. This means that the apartment is returned to the original owner, and he must return the money deposited with interest for its use.

Taxation and use of the deduction

According to the Tax Code of the Russian Federation, it is proposed to choose one of the methods - reducing the payment by the amount paid to the developer or a tax deduction.

Learn more about how the deduction procedure occurs when purchasing an apartment.

A declaration in form 3-NDFL must be submitted to the tax service by April 30 of the following year, which follows the year of the transaction. Attach copies of documents that can confirm payment. The tax must be paid by July 15th.

How to confirm the transfer of money

In accordance with Art. 220 of the Tax Code of the Russian Federation, to confirm ownership, a title document is provided - an agreement and an extract from the Unified State Register of Real Estate. In addition, a payment document is required, which can include the following:

• receipt of funds received by the seller;
• bank account statement indicating the purpose of payment.

 Lease of a safe deposit box or assignment agreement without providing payment documents cannot indicate the transfer of funds.

Tax paid by the assignor

Current taxation requires payment of tax if income is received. The transfer is subject to personal income tax at the rate of 13% for citizens and 30% for foreigners, since it cannot be owned for more than 5 years, after which no tax is levied. You can use a deduction or indicate the funds that were paid to the developer during the initial registration of the DDU.

Tax deduction on transfer

Upon assignment, the assignor (seller) may receive a deduction of up to 1 million rubles. to reduce the tax amount. If the transaction amount exceeds the deduction, tax is paid based on the resulting difference. But it is important to indicate your desire to take advantage of the tax deduction in your income tax return.

Thus, if a DDU has already been concluded, the right to sell the home to another person remains. It is important to do this while the house is being built and before it is put into operation. There are risks for the buyer that would not happen with a properly executed contract.

The main risks when buying an apartment by assigning rights in a house under construction and commissioned

What type of contract is concluded with the buyer for an apartment in a new building?

The contract concluded when purchasing housing in a new building can be of several types, and this depends on the stage of construction at which it is at a particular moment.

1. Share participation agreement . It is concluded at any stage of construction of a house, up to the commissioning of the object for direct operation, that is, until its acceptance by the state commission. It is concluded directly with the developer.
2. Agreement for assignment of rights (claims) . This agreement, like the first one, can be concluded during the period from the start of construction to the commissioning of the house, but it is no longer concluded with the developer, but with an individual/legal entity that has already purchased this property from a construction company under an equity participation agreement. Or with a person who bought an apartment also by assignment of rights from the one who concluded the agreement. Thus, the chain of such agreements can be almost endless. At the moment when the house is considered completed, i.e. accepted by the state commission and put into operation, registration of assignment agreements is no longer carried out.
3. Preliminary purchase and sale agreement . This type can be concluded during the period when the house has been handed over, but documents on ownership of the apartment have not yet been received. This is the time period when the house is already completely ready and the owner of the apartment directly (under a contract of ownership or assignment) issues a certificate of ownership of the property. Such registration in new buildings can take quite a long time - up to 1 year, and sometimes situations arise when the acquisition of property rights is decided in court.
4. Contract of sale . This is a common agreement that is concluded when an apartment in a new building already has an owner with a certificate of ownership.

As is clear from the above, the assignment agreement is concluded with an individual/legal entity to purchase an apartment from him in a building that is under construction. A purchase under this document can be completed until the house is put into operation.

The practice of concluding such agreements before the actual delivery of the house is common because such objects are purchased by investors at the stage of digging a foundation pit, at a lower price, but it makes no sense for them to register ownership of the apartment.

They are trying to implement it up to this point. In addition, no one wants to deal with that time period, possibly a long one, when the registration of ownership of housing takes place.

During this period, it is impossible to sell the object, and the result is an incomprehensible state.

What is the essence of an agreement for the assignment of rights (or assignment)? It is concluded on the basis of an initial agreement with the developer - a “shareholder” agreement. That is, there is the first buyer of the apartment, who most likely purchased it at the very beginning of construction directly from the developer.

And between them a DDU was concluded, which is obligatory registered in Rosreestr. On the basis of it, further assignment agreements are concluded, but in fact there is simply a change in the buyer in the DDU agreement. There can be many such changes.

Therefore, when completing a transaction, you need to check the availability and accuracy of the initial documents that are transferred to the party purchasing the apartment under the assignment agreement:

1. Participation agreement. This initial agreement with the developer in its original version is with the last buyer of the apartment, in any case. It must be registered with Rosreestr, otherwise it is invalid.
2. All assignment agreements that took place after the conclusion of the DDU. This is necessary so that you can trace the entire chain of buyers of the object.
3. Receipts for payment for the property. All genuine checks and money orders, depending on how the payment took place, are also transferred to the purchasing party. As for payment for the property, it can be made either in full or not, by agreement with the developer, for example, on installments. If there is a debt on the apartment, it is transferred to the new buyer. But another thing is important - the seller may also have overdue debt. Here you should consult directly with the developer about the possible debts of the seller, since overdue debt is a big obstacle to the successful purchase of an apartment, since the construction company can in some cases sue it for overdue debts.
4. The developer's consent to the assignment. In principle, this may not be done by law, but such a clause is provided for in almost all shared participation agreements - to notify the developer of the transfer of rights. Therefore, it is best to obtain his permission for this transaction. In addition, the assignment agreement means not only the acquisition of claims to the apartment, but also the receipt of certain responsibilities. If the seller has debts to the developer, they are either repaid before the assignment agreement is concluded or transferred to the new buyer. Only in this case the developer will give consent. The transfer of debt on a real estate property can be formalized by a separate agreement signed along with the assignment, or it can be included as a clause in the assignment agreement itself.
5. An act of acceptance and transfer of all the above documents, signed by both parties to the assignment agreement.
6. Consent of the seller's spouse to carry out this transaction. After all, an apartment purchased under the DDU is also jointly acquired property. And if the property is joint, then there should be several sellers in the assignment agreement.

The presence of all these documents is mandatory, which will protect the buyer from invalidation of the transaction.

An agreement on the assignment of rights (assignment) must be registered with the authorized bodies! Otherwise, proving its validity will be problematic.

When deciding to purchase an apartment based on the assignment of rights/claims, it is necessary to carefully study the data of the original contract: the property must have precise characteristics, a floor plan with its location, etc. The real price of the apartment must also be indicated in the contract.

When the house is already rented, problems may also arise . Moreover, it does not matter what kind of agreement is concluded - equity participation or assignment. Obtaining a title deed is sometimes not that easy. It seems that the house is already completely ready, accepted by the state commission, but its final registration of ownership is not taking place.

Until these disputes are resolved, registration of ownership does not occur.

Great risks may be associated with such a concept as double sales, both intentional and accidental. This means that one apartment can be sold to several persons. This happens because not only shared construction agreements are concluded, but also various types of investment agreements, assignments and preliminary sales.

Therefore, when concluding an assignment of an apartment or a preliminary purchase agreement, it is necessary that it be based only on the DDU registered with government agencies, because only records are kept on them in Rosreestr .

In other cases, when records are not kept at the state level, you can purchase an apartment that already has owners.

What are the dangers of buying an apartment in a new building through assignment of rights?

Assignment of the right to claim is an official transaction that provides for the transfer of the right to claim the apartment from the assignor to the assignee. Each party has its own benefits from such an operation. But is it safe to buy an apartment by transfer, what risks may there be, and is it realistic to get housing? These questions concern every buyer who decides on such a transaction.

Federal Law No. 214 regulates the entire procedure and main points of the assignment. It is necessary to take into account the main factor that it is not the ownership of the apartment that is transferred, but the right to claim it.

Some participants simply do not understand the essence of the process, which leads to dishonest cooperation.

To know whether it is dangerous to buy an apartment through assignment, you need to carefully study the concept of assignment, evaluate the market, its participants, and the practice of concluding such agreements.

You can claim ownership rights after putting the house into operation. The developer must officially complete construction work, put the house into operation, and then begin occupancy.

Should you choose the primary market?

The assignment can only be made if the property is actively being developed. This means that the contract is concluded before the house is put into operation. A participant in shared construction assigns his right to another person. The assignment agreement becomes an addition to the main part of the DDU.

The developer will be obliged to transfer the property not to the first participant, but to the one who bought the right of claim. To find out whether it is dangerous to buy an apartment on assignment, you need to take into account several important criteria:

1. Reputation of the developer - you should study the history of the company. It is important to know that the company is not at the stage of bankruptcy, since this is a clear option for losing your investment.
2. The cleanliness of the developer - you need to make sure that there are no criminal cases involving managers or the company itself. To do this, you can visit the electronic file cabinet of the Federal Arbitration Court.
3. Study of project documentation - this document is publicly available on the official website of the developer or on the website of the residential complex. You can compare the established deadlines, projects, housing characteristics with the actual situation on the construction site.
4. Reviews from clients and customers are a reliable source of evidence of the company’s reputation.

Those assignees who were already parties to the transaction, or simply investors in the DDU, always express their opinion about the developer. Despite the fact that reviews can be positive and negative. Negative ones can always alert you to cooperation and prevent possible risks.

The dangers of reassigning an apartment may include double sales . Thus, scammers sell the right to claim property to several buyers. In the end, it turns out that there are several owners of the apartment at once.

The only proven and correct way is to correctly prepare all documents and compulsory registration of the agreement with Rosreestr. Only one document per claim in a particular house can be officially considered legal.

“Double sales” are excluded in this case.

Fraud during the assignment of an apartment can await the buyer in various aspects. You need to be legally savvy, know the real situation on the market, and know all the information about the developer. This is the only way to prevent the danger of buying an apartment on assignment.

The assignment of rights must be carried out in accordance with all legal rules and be officially formalized.

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Transfer of rights to an apartment. What is assignment and why is it needed?

Assignment of rights, as a rule, goes hand in hand with new buildings and equity participation agreements. It is used when selling apartments at the last stage of construction, before putting the house into operation.

In fact, if you want to purchase a new building at the final stage of construction, then most likely you will have to buy it under an assignment agreement, because usually at this moment there are no more apartments left from the developer and you can only buy the desired object from investors who invested in the early stages.

What is an assignment?

Until the new building is built and commissioned, shareholders who invested in the construction, instead of a certificate of ownership, have in their hands agreements for participation in shared construction (the so-called DDU).

These agreements are a necessary and sufficient condition for registration of ownership of the apartment when the house is delivered, and actually secure this right. So the transfer of this right to another person is called assignment.

That is, an agreement on the assignment of rights of claim does not mean the acquisition of an apartment, but the right of claim to transfer it into ownership.

Why do they sell on assignment?

During the period when a house in which a person has shared ownership is put into operation, a transfer and acceptance certificate is signed and a certificate of ownership is issued, the apartment cannot be sold.

And this time lag can range from one to several months. That is why investors who do not want to be in such a “limbo” state try to sell their property before the house is delivered.

Why do they buy on assignment?

What is the advantage of buying an apartment by transfer of ownership? Of course, in price. As a rule, the rights to apartments are assigned to professional investors who risk their money and invest in real estate at the foundation pit stage.

At the same time, they do not like to register their investment apartments as their property, and although apartments with a certificate are more expensive, they prefer to sell them by assignment.

That is why the practice of purchasing a finished apartment by transfer at the stage just before the delivery of the house is quite widespread.

Risks during assignment

The main risk that an assignment agreement may pose is its recognition as invalid. The reasons for this may be different, but regardless of their nature, the protection of both the buyer and the seller is the same - indicate the real price that was paid. Otherwise, in case of controversial issues, you will not be able to get your money back in full.

So-called “double” sales, that is, sales of one apartment to two or more persons occur under investment agreements or preliminary sales agreements. Therefore, avoiding a “double” sale is quite simple - you need to use the assignment of rights only under an equity participation agreement with registration, because only the state register and records are maintained according to them.

About 25% of real estate transactions are carried out under assignment of rights agreements. They are quite safe and are approved by banks in case of purchasing an apartment through a mortgage.

The risks that assignment transactions carry are more likely associated with the risks of shared-equity construction itself, because even when the apartment is built and ready, it is not a fact that the house will be accepted by the regulatory authorities and put into operation.

Therefore, when purchasing an apartment by assignment of rights, in addition to the seller, you must carefully check the developer himself.

We do not recommend that buyers contact sellers who have agreements other than the agreement on participation in shared construction with state registration. Only such an agreement is considered protected by Federal Law 214 “On participation in shared construction” of December 30, 2004.

Sale of an apartment by assignment of rights

An agreement on the assignment of ownership of an apartment or an assignment agreement works on the basis of the same Federal Law “On participation in shared construction.”

And although it does not say about the need to obtain the developer’s consent to assign the right, most likely this will have to be done - such items are included by developers in the DDU. Of course, federal law is higher than a construction company's contract.

When selling an apartment, if it was purchased during marriage, a notarized consent of the spouse to the transaction will be required, since the “sharing” is jointly acquired property. In the case of joint ownership, personal presence may be required.

Buying an apartment by assignment of rights

By purchasing an apartment under an assignment agreement (assignment of rights), the buyer actually replaces the seller in the agreement for shared participation in construction. At the same time, he has corresponding rights and obligations. In the case of purchasing a shareholder, the rights and obligations of the shareholder.

It would be a good idea to check the developer, look at the seller’s payment documents, and make sure that the mutual obligations of the developer and the equity holder are fulfilled in full. It is necessary to make sure that the seller of the apartment has fully paid the amount under the equity participation agreement.

Information about the apartment can be obtained from both the seller and the developer, and then compare it for compliance.

Agreement on assignment of ownership of an apartment

The contract itself for the assignment of property rights from the seller to the buyer must include an attachment of the document under which the seller has acquired the right, which now passes to the buyer (DDU), as well as the transaction amount and the payment procedure. In addition, there must be the developer’s consent to this assignment, as well as complete information about the property. Drawing up a transfer agreement is possible only before the house is put into operation and the transfer and acceptance certificate is signed.

Taxes upon assignment of rights

According to the Tax Code of the Russian Federation, any income received by a Russian citizen must be taxed. Including if it was received from the sale of an apartment under an assignment agreement.

Thus, regardless of whether the sale of an apartment owned or the sale of shared ownership is carried out, the income is subject to tax. However, the tax base itself can be reduced by the amount of expenses incurred.

In fact, the tax must be paid only on the difference between the amount of sale under the assignment agreement and the amount of purchase of the “addition” from the developer.

Example: an apartment purchased from a developer cost 2,000,000 rubles and a year later was sold under an assignment agreement for 2,500,000 rubles. The tax will be 13% of 500,000 rubles, that is, 65,000 rubles.

Obviously, if the amounts are the same, then the tax is zero. However, both in the case when tax must be paid and in the case when the tax is zero, it is necessary to submit a tax return in form 3-NDFL. Otherwise, you may be sent a notice for the entire sale amount or fined for failure to declare.