Buying an apartment in marriage for one of the spouses - who is better to register the apartment for when buying while married?

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Throughout family life, husband and wife acquire property, including real estate. Buying a home while married is a responsible step and makes you think about how to properly formalize such a purchase. When getting married, people rarely think about possible disagreements, but in the future such forethought can play an important role.

Marriage concept

Marriage in the legal sense of the word is a free and voluntary union of a man and a woman for the purpose of creating a family. A marriage formalized in accordance with the procedure established by law gives rise to mutual property rights and obligations for the spouses.

To enter into a marriage relationship, the legislation contains a number of requirements:

• mutual consent of persons;
• reaching marriageable age;
• absence of other marital relationships;
• lack of family relations between the bride and groom;
• the legal capacity of persons wishing to marry.

What is joint property of spouses

As a general rule, if you buy a home during marriage, it will be considered joint property of the spouses. This term means a regime of ownership, use and disposal of property in which it belongs to the couple equally without allocating shares to each.

Spouses can implement such objects only by mutual agreement. A co-owner cannot simply sell or donate his part of the joint property; to do this, he must first allocate his share.

All issues that are in one way or another related to family and kinship relationships are regulated by family law. In addition, transactions with property are classified under civil law.

• In this area, the following fundamental legislative acts can be identified:
• Certain nuances are regulated by special laws and by-laws.
• 

Types of property of purchased housing

When buying their own living space, many people wonder how best to decorate an apartment for spouses - for one or for two. There are several options:

• joint property
• total share,
• personal.

It is difficult to name the most suitable solution for a particular situation. Such issues are resolved individually, taking into account life circumstances.

Many couples find it difficult to decide whether joint or shared ownership is better when buying an apartment. As practice shows, the first option is still the most common. In this case, the shares of each party are not allocated, and the spouses use the real estate on equal rights. In this case, the documentation lists two owners.

The division of property in the event of a divorce occurs in court if one of the parties does not agree with the established size of the share.

In addition, spouses often register housing as joint property with their children. Thus, all family members are owners of a common home.

Registration of real estate as shared ownership

Spouses can initially arrange the apartment in such a way as to determine the shares of each of them. It is not at all necessary that the parts of the property be equal. The purchase of an apartment in shared ownership by spouses in 2023 is possible by concluding a purchase and sale agreement, which immediately indicates the shares of the parties.

The share of each spouse is separate, due to which it can be disposed of without any restrictions. The owner can sell his part, donate it, separating it from the common property.

This is the ownership mode most often chosen by families with children. This allows the heirs to be given a legal share of the home.

Shares are also determined using a marriage contract. This document can be concluded at any time in the family life of the spouses, defining all property issues in it in order to avoid disagreements in the future.

Registration of real estate into sole ownership

There are often situations when an apartment was purchased during marriage, but there is only one owner. Due to the fear of losing their home, as well as the reluctance to participate in property proceedings in the event of divorce and division of common property, many seek to insure themselves.

In order not to acquire common joint or shared property between spouses, and at the same time to protect themselves, more and more Russians prefer to buy an apartment for themselves while married.

The legislation defines a category of objects that can be classified as personal property of a person, for example, gifts. Therefore, one option is not to buy a home, but to receive it as a gift.

Not everyone has relatives who can give their loved ones housing. Therefore, many are forced to look for other options.

An apartment purchased during marriage can be registered in the name of one of the spouses through the conclusion of a prenuptial agreement. Using this document, it is easy to transfer any property to one of the spouses. At the same time, the second one will not be able to lay claim to this object in the future.

The procedure for purchasing and registering an apartment

Buying an apartment involves resolving issues related not only to who to register housing for, but also where and with what documents to apply for this.

A purchase and sale agreement can be concluded either with or without the help of a notary.

The law does not require notarization of a contract, although many citizens still prefer to turn to specialists for the preparation of important documents.

Many people are interested in whether the participation of a notary is necessary when purchasing an apartment in shared ownership. As noted above, the mode of use of property is of particular importance.

According to the law, from June 1, 2016, it is prohibited to sell, buy, give or change housing in shared ownership without the participation of a notary. Now a transaction with shares in an apartment must be notarized. Without this, it will not be possible to register the transaction in Rosreestr.

Spouse's consent to purchase real estate

The Family Code of the Russian Federation stipulates that all property acquired during marriage is considered the common property of the spouses, regardless of which of them it is registered in the name of.

Registering real estate for two spouses requires obtaining written consent to conduct a transaction with such property.

The consent, drawn up in writing, is certified by a notary. And although in the case of common shared property the permission of the spouse is not required, many still prefer to obtain such a document in order to avoid disputes in the future.

Procedure for concluding a purchase and sale agreement

Registration of a transaction with a notary in the case of shared ownership is becoming increasingly popular. Signing a document at a notary's office will guarantee that everything will be done correctly, and in the event of litigation or other disagreements, the transaction will have legal force.

Let us remind you: the law does not establish a requirement to contact a notary, so you can draw up a purchase and sale agreement yourself.

Check out what the purchase and sale agreement for common property looks like:

View document

State registration procedure

The transfer of ownership of real estate is subject to state registration. To do this, you need to contact the Rosreestr branch or the Multifunctional Center with all the documents.

You can also submit your application by mail or online.

List of required documents

Those who are interested in how to buy an apartment in shared ownership must submit a whole package of documents along with the application for registration:

• the applicant's identity card;
• identification card and confirmation of the authority of the representative in the event of an application being submitted by a third party;
• documentation for the apartment;
• receipt for payment of state duty.

Payment of state duty

To register the transfer of ownership of real estate, you must pay a state fee. Its rates are established by the Tax Code of the Russian Federation.

Currently, the mandatory payment for individuals is two thousand rubles.

Purchasing real estate with a mortgage

Buying a home together is not affordable for everyone, so many families take out a mortgage on square meters. Thanks to loans, an increasing number of citizens have the opportunity to acquire their own housing.

This also has its own characteristics that should be considered in more detail.

Buying a home using maternity capital

The maternity capital program was created to help families with children improve their living conditions. Of course, state aid funds will not be enough to fully purchase a home, but making a first mortgage deposit will be enough.

The legislation contains restrictions on the use of maternity capital money, so it will not be possible to spend it for any purpose.

Mortgage for housing in shared ownership

The legislation provides for a shared mortgage for the acquisition of property in shared ownership.

Families often resort to this method of purchasing real estate to purchase square meters in new buildings. To do this, a standard package of documents is submitted, and the sale and purchase agreement itself specifies the shares of each participant.

Tax deduction when purchasing real estate

1. According to the Tax Code, deductions for the purchase of property in shared ownership are distributed according to the amount of expenses of each spouse, confirmed by payment documents.

2. If the property is registered in the name of one of the spouses, then the husband and wife can independently distribute the expenses incurred based on the appropriate application.

3. This position of the legislator is due to the fact that, in accordance with the RF IC, both spouses participate in expenses regardless of which of them actually incurred them.

Features of allocating a share in a purchased apartment

If an apartment was purchased under a sale and purchase agreement, the question arises of how to allocate the spouses’ shares in it. As a rule, the shares of the parties are specified in the text of the agreement.

• You can also draw up an agreement on the allocation of a share at any time in family life and even after the dissolution of the marriage relationship.
• The purchase of real estate by spouses is certified by a notary.
• As a general rule, the parties have equal shares, but the agreement can also provide for a different division procedure.

How does home division occur during divorce?

Divorce involves resolving many issues, including property issues. In the absence of a marriage contract, which happens quite often in our country, to protect the rights of spouses to property acquired during marriage, they have to go to court.

Some citizens can find a common language and resolve everything voluntarily by concluding an agreement on the division of property.

How to divide an apartment purchased during marriage

Real estate acquired during marriage is the common property of the spouses and is divided in half. However, the agreement sometimes determines other shares of the parties.

The division of an apartment purchased during marriage will not take place if the property is considered the personal property of the person or a separate regime of use is established for it.

Donation of real estate between spouses

It is not always possible to transfer housing to each other under a gift agreement, or to determine the procedure for its division in the event of divorce.

Property acquired during marriage by one of the spouses can be gifted to the husband or wife. In this case, it will be considered the personal property of the donee, and the other party will not be able to claim it in the event of a divorce.

Sale of spouses' home

Throughout family life, a couple needs to improve their living conditions, especially after the birth of children. From time to time it becomes necessary to sell housing that is already owned by spouses.

Selling a home during marriage also has its own characteristics. In many ways, the procedure depends on the type of common property in which the housing is registered.

Sale of jointly owned real estate

Housing that is jointly owned by spouses is managed jointly by the couple by mutual consent. To sell it, you will need the notarized consent of the husband or wife.

The sale of real estate registered in the name of one of the spouses also has its own distinctive features.

Sale of real estate in shared ownership

Each owner can dispose of his share. However, the preemptive right of the remaining owners to purchase a share is of particular importance.

Before selling, a person must notify the other co-owners in writing of their desire to sell their part of the property. They are given a month to consider such a proposal.

If during this time no one volunteers to act as a buyer, the seller is allowed to sell the housing on the same terms to other persons.

conclusions

Purchasing real estate during marriage is a familiar phenomenon for many citizens. However, the specifics of this procedure should be taken into account, first of all, what kind of property the housing should be registered as. For spouses, common joint or shared property is more common. In each case, the spouses choose the form that is suitable for themselves.

Joint property of spouses. Common shared ownership: Video

Purchasing an apartment in a registered marriage

The current economic situation often makes it possible for married people to purchase residential real estate. However, to confirm the legality of such a transaction, it will need to be formalized from a legal point of view.

The purchase of an apartment or other residential property is a fairly significant event for a family, especially if this family has officially registered their relationship.

In order to make it easier for legally married people to purchase a home, some banks provide a reduced interest rate on a mortgage loan. This allows you to purchase square meters as joint property.

Purchase Features

If you want to find out how to solve your particular problem in 2023, please contact us through the online consultant form or call :

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there are certain features when making purchase and sale transactions

• the acquired property becomes the joint property of the spouses (with the exception of cases where the spouses have entered into a marriage contract, which determines the procedure for dividing property after a divorce);
• in the event that an apartment is purchased with a mortgage, then, despite the execution of the contract for one of the spouses, ownership of it will be joint (however, it will be possible to re-register ownership from sole ownership to shared ownership only after the mortgage loan taken has been fully repaid);
• if no additional conditions are formed during the transaction, then the apartment purchased by spouses in a registered marriage is registered as shared ownership.

Despite the existing features of registering a transaction for the purchase of an apartment, such a transaction has its own procedure.

Procedure for purchasing an apartment while married

The procedure for the purchase and sale of real estate by legally married people differs from the standard procedure carried out in accordance with the provisions of the Civil Code, only in an expanded list of documents to confirm the legality of the contract.

The entire transaction will be carried out in the following order:

• Selection of the optimal option for purchase. This selection is carried out by studying the available options, for example, through advertisements presented on the Internet.
• Preparation of documents for purchase. Almost all documents must have either copies that have been notarized or presented in originals.
• The third stage of the purchase consists of two parts - the conclusion of a purchase and sale agreement and the registration of the transfer of ownership to the new owners.

Legal confirmation of the transaction is carried out with a special package of documents.

If you want to find out how to solve your particular problem, please contact us through the online consultant form or call :

• Moscow: +7 (499) 110-86-72.
• St. Petersburg: +7 (812) 245-61-57.

What documents to prepare?

The list of documents that will need to be prepared for the purchase and sale of an apartment by married persons will look like this:

• personal documents of future potential owners (if for some reason one of the spouses cannot take part in the transaction, he must draw up a notarized power of attorney for his spouse to carry out the transaction and on his behalf);
• consent to the transaction (if according to the documents the owner of the purchased home is only one spouse);
• in the event that the purchase of an apartment is carried out on a mortgage, certificates of confirmed income of both spouses will be required (since the provision of such documents will increase the total family income and obtain bank approval for a larger amount);
• in the event that we are talking about the acquisition of an apartment by spouses who signed a marriage contract upon marriage, this document will have to be provided when registering the transfer of ownership, so that the received extract from the Unified State Register of Real Estate Rights will indicate the forms of distribution of the acquired property;
• if we are talking about the shared purchase of housing by spouses, then, unless an appropriate agreement has been concluded between them, the property is divided in proportions of 1/2 to each spouse (to determine the size of the shares, you will need a specially drawn up agreement on the shared distribution of property, which is attached to the purchase and sale agreement apartments when registering a transaction in Rosreestr).

The list of documents is not exhaustive, since in each specific case spouses can initiate various situations when purchasing an apartment.

Purchase with a mortgage

Buying an apartment using borrowed funds is a fairly common situation in officially registered marriages. As mentioned above, according to the current rules of law related to the regulation of mortgage lending, registration of ownership is possible only in the name of the person who signed the loan agreement.

• This option is common if only one spouse is the borrower under the mortgage agreement.
• If both spouses provide the bank with certificates about their level of income, and the bank considers them as co-borrowers, the mortgage loan agreement will be issued for two spouses at once, which will make it possible to register ownership also for both spouses.
• If for some reason the second spouse cannot act as a co-borrower, then ownership of the documents can be registered only after the mortgage loan agreement has been fully paid.

However, when dividing an apartment purchased with a mortgage in the event of a divorce, the square meters will be divided in accordance with the provisions on joint property, but the reimbursement of the mortgage loan amount will also be extended to both spouses. And until the entire loan amount is repaid, they will not be able to re-register the ownership rights open to them to someone else.

Purchase under a marriage contract

The use of a marriage contract is found today in the vast majority of families that have formalized their relationship, already having some capital behind them or having increased their wealth in the first years of official cohabitation.

As a general rule, real estate and other large assets acquired during marriage should be divided equally.

However, if the parties have signed a marriage contract, then the entire division of property will be carried out in strict accordance with its terms (for example, under the terms of such a contract, the only owner of the apartment will be the one who contributed the entire amount necessary to purchase housing; another option may be the division of property in shares proportional to the funds contributed to the purchase, even if the apartment was purchased using mortgage lending - in this case, the amount of funds contributed in proportion will be calculated based on what share each spouse contributed to the monthly payment).

The purchase of an apartment by spouses in an officially registered marriage constitutes the acquisition of real estate in shared ownership.

In accordance with the provisions of family law, an apartment purchased during a registered marriage will be considered joint property, unless another division of large purchases is provided for by the provisions of the marriage contract.

In addition, the purchase of an apartment with a mortgage will also be considered as a purchase of joint property , which in the event of a divorce will be divided in half, but the obligations to make payments on the mortgage loan will also be divided in half.

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Peculiarities of purchasing an apartment in shared ownership by spouses

What is shared and what is joint property

When concluding a purchase and sale agreement for an apartment, the new owner is granted ownership of the property. And if there is only one owner, then everything is clear with this situation.

But most often, an apartment is purchased during marriage or by several individuals, it is inherited by children, and a deed of gift can also be issued for several people.

In this case, the answer is ambiguous, and means that the property becomes not individual, but common. In turn, common property has two options: joint and shared.

Shared ownership is when a property has several owners, whose shares are strictly distributed among them. Everyone is issued a certificate of ownership, which clearly indicates how many shares belong to a particular person in a particular apartment. Such a share is separate, which means it can be sold.

It is with shared ownership that you can sell part of the apartment, thus breaking it up and turning a single piece of real estate into an actual communal apartment. Of course, before you sell your share, you must offer to buy it back to the owner of the second share, and under the same conditions as on the free market.

If he refuses, then the share can be sold to anyone on a general basis.

As for joint common property , it arises most often in marriage. Joint property cannot be split up, divided, part of it sold, etc. It is a single object owned by two people.

In this case, on paper the apartment has one owner - for example, one of the spouses, but in fact it is owned by two. And do something with the apartment - sell, exchange, mortgage, etc.

– it is impossible without the consent of the other party.

When purchasing an apartment, by default the property is considered joint, but if the spouses wish, it can be divided into shares.

Registration of an apartment when purchasing an apartment in shared ownership by spouses

As you know, there is a strict legislative provision that everything that is acquired by spouses during marriage, using common joint funds, is divided in half upon divorce. That is, an apartment purchased by spouses during marriage is in any case joint property.

But, of course, they have a choice - to register an apartment for one of the spouses, or for both .

• In the first case, when the apartment is registered to one owner , it is joint property. By the way, for the purchase it will be necessary to obtain a notarized permission from the second spouse. According to the documents, the owner of the apartment will be the husband or wife. But in fact, they both have the right to own and dispose of it, and one cannot do anything with this property without the other. All actions regarding housing will be carried out only with the notarized consent of the second party.
• In the second case ( registration for both ), when purchasing an apartment, the purchase and sale agreement indicates two owners of the apartment - both spouses. It also determines the shares of their ownership - most often the apartment is divided in half, but there are other options. The package of documents submitted to the registration authorities is practically no different from where one of the spouses is the owner; it is only necessary to first indicate the shares for each of the spouses. The advantage of such a transaction is that when registering shared ownership, you do not need to write and certify each other’s consent to the purchase.

When purchasing an apartment in shares, you should also think about the method of payment for the property. To avoid any questions, it is best to do it in proportion to shares. That is, each spouse pays his share - this will ensure that both government agencies and the tax office do not have questions when applying for a property tax deduction.

One of the spouses, having the appropriate authority, can register an apartment as shared ownership, which means that he must have a power of attorney from the other, notarized, to carry out such actions.

But it should be understood that no matter what shared ownership the apartment is registered in, it, in any case, is property acquired jointly, which means it belongs to the spouses in equal halves.

And this situation can be changed only in one case - if you draw up a marriage contract.

A marriage contract is a fairly strong document that regulates the property relations of the spouses. Its provisions and clauses always apply to execution when dividing property acquired during marriage. It is he who can resolve the share issue by circumventing the legislation.

For example, if it states that when real estate is divided, it remains with the person in whose name it is registered, then in this case the distribution of shares when purchasing an apartment makes great sense! After all, the size of the share that belongs to the spouses according to documents will remain the property of each of them after a divorce.

Property deduction for personal income tax for shared ownership

Registration of an apartment as shared ownership by married spouses affects the calculation of the property deduction for personal income tax. And if, when dividing property, this aspect - registering it as joint or shared ownership - is not of decisive importance (in the absence of a marriage contract), then when recovering personal income tax, it has a fairly large impact.

In case of joint ownership, both spouses and one of them can receive the deduction..

In the latter case, the second spouse writes a refusal to receive the deduction in favor of the one who is more beneficial for the family as a whole to receive this deduction.

If the apartment is registered as shared ownership, then each spouse receives a deduction separately from each other. Moreover, it is important to note that they receive this deduction in proportion to the distributed shares.

As a general rule, the deduction is RUB 2,000,000 . It is valid for one property. The total cost of the apartment is divided proportionally to the shares (and not to the number of people to whom the property is registered). This will be a deduction for each spouse.

But only if the cost of the purchased housing is equal to 2 million rubles, or less than this amount. If the price of an apartment exceeds the limit, then the deduction for each person will be calculated as 2 million rubles multiplied by his share.

Accordingly, whoever has a larger share will receive a larger deduction.

When owning shared property, everyone receives a personal income tax deduction in their own amount, and there is no need to write any additional statements.

How to buy an apartment while married so that the buyer gets it in the event of a divorce. A detailed overview of the available ways to purchase an apartment and how to get it during a divorce

In this article, I will consider the main points that allow you to understand what norms of the law to follow, possible options for registering ownership and purchasing housing, both during marriage and before its official registration. How to prove your right to an apartment and prevent it from passing into the possession of your ex-spouse.

○ What the law says

The regulatory framework for regulating the issue of division of property is:

• Civil Code (hereinafter referred to as the Civil Code).
• Civil procedural legislation (hereinafter referred to as the Civil Procedure Code).
• Family Code (hereinafter – FC).
• Tax Code (hereinafter - TC).

• Article 256 of the Civil Code:
• “Property acquired during family life (movable and immovable things) is the property of both spouses, unless otherwise determined by contractual relations.
• In addition, property owned before marriage, received under a gift agreement or as an inheritance by one of the spouses, is the exclusive property of that spouse.”

The above rules must be considered together with the norms of family law, where Chapter 7 defines the regime of such property, and Chapter 8 regulates the issue of contractual property status.

• Article 34 SK:
• “the parties are given the right to change the existing legal regime to a contractual one by concluding a marriage agreement.”

The Code of Civil Procedure of the Russian Federation determines the procedural order of division, its terms, list of documents, content of the statement of claim, judicial procedure for division, etc.

The legislation regulating taxation issues determines the procedure for paying tax fees related to the implementation of property legal relations.

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○ Buying a home while married

Buying an apartment while married should begin with determining the form of ownership of it. In this regard, there are several options for the development of events.

Possible acquisition schemes.

1. Shared ownership, when the living space is divided into shares and is common (this option is also possible in case of cohabitation without registering a marriage).
2. There is a non-share ownership method, when this issue is not documented, that is, shares are not determined (only for spouses).
3. Property rights may belong to one of the spouses.
4. Acquisition of living space by a spouse using his own funds. In this case, during the trial you will have to prove the fact of donating money.
5. To reinsure yourself for the future, formalize your relationship by concluding a marriage contract, including including a clause on the purchase of living space and its future fate.
6. Mortgage purchase. If the loan is issued to one person, then the second person provides consent to this. If this point is specified in the marriage agreement, then permission is not required. Applying for a loan for both, but with registration of ownership in one person. It is possible to register ownership of an apartment on both. In both cases, upon divorce, the debt will be divided between the spouses.

Which option is better? Those spouses who are afraid of being left without housing or of its unfair division can arrange the purchase using the shared method, and the shares can be different; this issue is resolved individually.

Without shared ownership, the apartment is divided into two equal halves. The partition process will be carried out by the court.

The procedure for dividing residential meters will follow the same procedure in the case of one owner per apartment.

Important! The concluded agreement for the purchase of property involves the return of a tax deduction - the amount by which the spouse can reduce the income subject to taxation.

To receive a deduction you need to take into account:

• The paperwork and payment document must be in the name of one of the spouses.
• Receiving official earnings by both to split the deduction between two.
• The possibility of returning to the address of one, the second leaves the right to take advantage of the deduction in the future.

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✔ Who owns it?

Persons who may own an apartment after a divorce:

• Spouse.
• Spouse.
• Their children (until they reach adulthood, one of the parents will act on their behalf).

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○ How not to share an apartment with your ex-spouse

In legal practice, there are several ways to leave your other half homeless.

1. Contractual method.
   • Article 41 SK:
   • “A contract called a “nuptial agreement” can be concluded by spouses both before marriage and after registration. In such an agreement, the spouses themselves have the right to resolve the issue with the apartment on a voluntary basis.”
2. Recognition of housing as the property of one of the spouses.
   • Article 36 SK:
   • “Property that one of the spouses received free of charge (by inheritance or gift) is his property.”

   To implement this method, the participation of relatives on the spouse’s side is necessary, who are able to confirm the fact of receiving the apartment free of charge.

3. Debt method.
   • Article 39 of the RF IC
   • “The total debt (debt) is divided on a proportional basis in accordance with the existing shares in the common property.”

   To implement such a scheme, it is necessary for the spouse’s trustee to prove the existence of a debt equal to the cost of the living space.

   Such evidence can be a receipt confirming that the spouse has received money for the purchase of an apartment, which will imply the division of the resulting monetary obligation (debt) between them. Next, the spouse is required to repay the debt.

   Of course, in such a situation, the party will refuse either its share in the residential premises or a monetary obligation equal to half the cost of the housing.

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✔ Purchase of housing through third parties with subsequent donation to one of the spouses

One of the reasons for purchasing residential real estate is the reluctance to share an apartment with a spouse. This behavior is most often characteristic of parents. For example, the spouse’s parents purchase housing by drawing up a sales contract, and in the future they draw up a deed of gift and give it to their daughter.

In this situation we are talking about two transactions, the disadvantage of which is:

• Duration by processing time.
• Payment of double state duty.

The way out of this situation is to conclude an agreement through a third party.

What is needed for this? To do this, all parties need to come to the notary’s office and sign an agreement, according to which the parents buy housing in the name of their daughter (son) with their own money and she (he) becomes its owner.

Here, the right to such housing will be considered as transferred free of charge, since the payment was made by the parents. In the event of a divorce, the other half will not have any claim to the property, and if it is sold, the permission of the spouse is not required.

• Clause 1 of Article 252 of the Civil Code:
• “A gift agreement is an agreement under which one party, free of charge, transfers to the other party (the donee) an item (apartment) into ownership.”

Should a “third party” pay tax on the profits received to the state? In this case, taxes are not paid. Even when a gift agreement is drawn up, relatives are exempt from the obligation to pay tax.

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✔ Apartment inheritance

An apartment received as an inheritance is the personal property of the spouse. Moreover, the time of receiving it does not matter (before or after marriage). During divorce proceedings, such property is not subject to division. Even if one of the spouses lived in it for many years, the other has the right to evict during a divorce.

Inherited housing is also personal because it was acquired at the expense of third parties, and not with marital money.

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✔ Buying an apartment with funds received or earned before marriage

Ways to purchase housing before marriage:

• Purchase with your own funds.
• Inheritance.
• By receiving as a gift.

Purchase of housing before marriage can be proven:

1. Prove that the funds came from the parents. Ideally, have a notarized housing donation agreement. It is also possible to draw up such an agreement for the gift of funds in simple written form. When drawing up an agreement, it is important to indicate the targeted nature of the monetary gift by entering the phrase “we are transferring funds in the amount of 3,000,000 rubles for the purchase of an apartment.”
2. A certificate from a banking institution confirming the fact that it was not possible to purchase real estate during the marriage.
3. A certificate from work about earnings, which will indicate the insolvency of the spouses.
4. Witness's testimonies.
5. Bank statement from parents' account showing account movements.

The fact of proof will be carried out in court. The decision will be made based on examination of the information provided by the parties.

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✔ Conclusion of a marriage contract

Possibility of concluding a marriage agreement:

• Until registration.
• Directly upon registration.
• During the period of family residence.

Nuances of a marriage agreement.

The terms of the agreement begin to apply after registration of the relationship. The form of preparation is written. Mandatory certification by a notary is required.

The purpose of the conclusion is to regulate all property and financial issues. Other issues are not subject to inclusion in the agreement.

The term of imprisonment can be either indefinite or have specific validity periods. It can also be changed or terminated at any time. However, refusal of one of the spouses to fulfill the contractual terms is impossible.

Possible options for entering questions about property:

• Changing the regime of jointly acquired property.
• The property that everyone will receive after the termination of the relationship has been determined.
• Change of shares for an apartment and others.

The provisions of the contract cannot:

• Limit the rights and capacity of the parties.
• Regulate the rights and obligations regarding the child.
• Limit the right of a non-working spouse in his financial support.

Important. Amendments to the terms of the agreement are possible: by mutual agreement, in court, or in case of disagreement of one of the parties.

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○ What documents need to be kept in case of divorce if the apartment belongs to one spouse

Documents required to prove ownership of housing:

• Apartment purchase agreement.
• Loan agreement.
• Donation agreement.
• Documents confirming inheritance rights.
• Statements from personal bank accounts.
• An extract from the personal account for the apartment, where the full name is indicated. its owner and reflects all financial transfers for utility services.
• A receipt indicating receipt of the amount for the purchase of real estate.
• Agreements on the supply of utilities and their payment by the owner of the apartment during the premarital period.
• Checks for the purchase of property and building materials during the premarital period;
• Contracts for repair work and so on.

Thus, to avoid all property disputes during a divorce, it is recommended to conclude a prenuptial agreement that covers all possible property and financial issues. This step will save in the future time spent on disputes and money paid for the work of a qualified property specialist.

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○ Advice from a lawyer:

✔ My husband was given an apartment by his parents, but the money for renovations was taken from his wife’s account, as a result the apartment became 30% more expensive than the original cost. How can my wife collect her share?

The norm of paragraph 1 of Article 36 of the RF IC regulates that property that belonged before marriage is personal and is not subject to division; this also applies to gifted property.

However, there is reason to consider such an apartment a joint one if significant repairs and construction work are carried out that increase its market value. The legislation does not stipulate a list of such works, the significance of which is subject to assessment. This issue is being studied in court, taking into account all the circumstances of the case.

The following may serve as grounds for recognizing joint property:

• An expert opinion on the repair issue, which will indicate that the apartment, as a result of the reconstruction, acquired a new value.
• Proof of expenses.

If the court takes into account all the evidence, then such a gift from the parents during a divorce will be divided between the spouses.

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✔ According to the marriage contract, the apartment belongs to one of the spouses, but it was purchased jointly, while the second spouse does not have any property. Is it possible to challenge the marriage contract and divide the living space in half?

• It is possible to file a claim and challenge the terms of the contract, but this will not give any positive result, since the contract expresses your will and its provisions do not contradict current legislation and allow you to resolve the issue of determining the right to own the property.
• Such an issue can only be resolved through mutual agreement by making changes to the agreement regarding the living space.
• In practice, there are two ways to amend a contract:

• Voluntarily, by having it certified by a notary.
• In court, in case of disagreement of one of the parties.

Guided by the norms of Article 451 of the Civil Code, it is possible to demand changes in court only in the event of a violation of the contractual terms of one of the parties and a change in the situation in which the contract was concluded.

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

Sale of an apartment by spouses during marriage

Everything that spouses in a registered marriage acquired during their life together is considered jointly acquired property, regardless of who owns the property.

According to the norms of the Family Code (Article 34), everyone’s share is determined 50/50, with the exception of what passed to one of the spouses during the inheritance process or was accepted as a gift.

Excerpt from Article 34 of the RF IC

Otherwise, it may also be established by a marriage contract, subject to mandatory certification by a notary. In an agreement, a husband and wife can establish a special property regime, when each has the right to acquire any property without the consent of the other, and it will belong only to him and permission for its sale or disposal in any other way is not required.

Legal regime of spouses’ property and sale of an apartment

If the marriage contract is not concluded, then in all other cases in accordance with Art. 35 of the RF IC, the disposal of joint property must be agreed upon: if one of a married couple decides to sell an apartment that was purchased after the registration of the marriage relationship, then there is a need to obtain the approval of their other half by registering it notarially.

If the apartment once purchased by the spouses was registered in both hands, indicating the share of each, then both will act as sellers at the conclusion of the transaction, but this does not mean that everyone can sell their share on their own. Even the share determined for each is still their joint property.

If you intend to sell an apartment, spouses must prepare a standard package of documents:

• certificate of ownership of the apartment;
• confirmation of the legality of the grounds for ownership of the apartment: previous purchase and sale agreement, privatization;
• passports of all home owners;
• certificate of persons registered in the apartment, obtained from the Federal Migration Service (passport office). IMPORTANT : Its validity period is no more than 30 days
• if there are minor children, the consent of the guardianship and trusteeship authorities is required and it can only be obtained if the condition is met that the parents, when selling the old apartment, simultaneously purchase a new one in which the children will live. It is very important to prove that the new living conditions will not be worse than the old ones, for which a copy of the technical passport of the property being sold and purchased is requested;
• notarized consent of the second spouse;
• a purchase and sale agreement in triplicate, which the persons entering into it must sign in the presence of registration service employees, and an application for state registration drawn up when submitting documents;
• receipt of payment of the state duty for registering the transaction.

The following list is not mandatory, but buyers may request it:

• an extract from the unified register of rights about the absence of encumbrances on housing in the form of arrest, pledge or claims of other persons, for example, a lease agreement (it makes sense to ask for it only before the transaction, since during registration this information will be checked by the registering authority);
• information about utility debts;
• cadastral and technical passports of the apartment, from which it is possible to determine whether alterations were carried out in the apartment and whether they were legalized;
• a certificate from the tax office stating that taxes on the apartment have been paid;
• conclusion of a psychoneurological and narcological dispensary on the health status of the sellers. If it later turns out that they could not be held accountable for their actions when concluding the contract due to illness, then the transaction may be declared invalid by the court.

There is no particular difference in the list of documents when selling to persons taking out a mortgage loan. The bank may require a report on the cost of the apartment, but, as a rule, all costs fall on those who purchase the property.

Make a deal

Before concluding a transaction, it is necessary to agree with the buyers on the payment procedure: cash or non-cash, advance payment and final payment after registration or in a lump sum at the time of signing the contract. If part is paid in advance, and the balance after the buyer receives the certificate, then the apartment will be encumbered until full payment and a mortgage entry will be made in the documents by force of law.

After all pre-contractual disputes have been settled and documents have been prepared, the seller and buyer submit them to the Rosreestr branch for registration.

In cases where the marriage is dissolved, but property has not been divided, then within 3 years (the statute of limitations for filing a claim for division), the consent of the spouse is required in any case. If one of the family members disposes of the apartment without the approval of the other, the transaction can be appealed in court. The chances that the court will invalidate it are more than high.

Of course, any family is based on the principle of trust between spouses, therefore, before making a decision on important issues related to living together, especially on the disposal of property, you need to agree and agree on further actions in order to avoid violating the rights of your other half.

Selling an apartment if the apartment is privatized for one of the spouses

Often the object of sale is an apartment that was previously privatized for one of the spouses. Even more often, such an apartment becomes the cause of disputes between spouses who consider this housing to be joint property.

According to the provisions of the legislation on the privatization of real estate, privatization is a gratuitous transaction, which means that the residential premises become the property of the person to whom it is registered. In fact, in relation to a privatized apartment, rules similar to the rules on donation apply - within the framework of privatization, the apartment is given free of charge, which means it belongs exclusively to its owner.

Thus, for the sale of an apartment that has been privatized in the name of one of the spouses, the consent of the other is not required either during the marriage or after its dissolution for three years.

IMPORTANT: The second spouse has a chance to recognize the privatized apartment as joint property in court if he has invested money in improving housing for a long time during the marriage relationship and can confirm this fact in court. In this case, the court may recognize the privatized apartment as the common property of the spouses and the relevant legislation will begin to apply in relation to it: it will be possible to sell it only with the consent of the second spouse. Note: major repairs, redevelopment, installation of inseparable items from the apartment may be recognized as significant financial expenses on housing equipment - heating, plumbing and other communications, etc. In each case, the court examines the situation individually, checking both the fact of the work performed and the person who paid for it.

The material was prepared by the editors of the site pravila-deneg.ru