Do you need a notary when selling an apartment in shared ownership in 2023 - notarization of transactions with real estate shares

A simple written statement will suffice. Read more about benefits, risks and exclusions

Soon, by analogy with selling a car in Russia, it will be possible to sell housing - under a simple written contract, without going to a notary.

The corresponding amendments to the law “On State Registration of Real Estate” come into force on August 1 (Article 42 of the Federal Law-218).

From August 1 in Russia, some housing transactions can be carried out without the participation of a notary. We are talking about situations with several owners and when an apartment is sold in shares. As in the case of selling a car, the seller and buyer will be able to document the transaction themselves - a simple written form will be enough.

Also included in this category are transactions with property constituting a mutual investment fund, and transactions for the alienation of land shares when concluding an agreement providing for the transfer of ownership of residential premises.

The procedure was simplified this spring. On May 1, Vladimir Putin signed Federal Law No. 76-FZ, which amended the Law “On State Registration of Real Estate” No. 218-FZ. The changes will come into force next week (from August 1).

The document states: owners of shares in an apartment, while simultaneously deciding to carry out a transaction for its alienation (purchase and sale, donation, exchange, allocation of shares), can do this without notarization, under an agreement concluded in simple written form.

On May 1, Vladimir Putin signed Federal Law No. 76-FZ, which amended the Law “On State Registration of Real Estate” No. 218-FZ. Photo kremlin.ru

Are there exceptions to the rules?

It will not be possible to sell an apartment without a notary in all cases - fundamental exceptions remain. So, for example, if a share in an apartment belongs to a minor or an incompetent person, then even if he agrees to the transaction, it will have to be concluded with a notary (at the same time, the acquisition of real estate by an incapacitated and minor person does not require these conditions).

Notarization will also be required for transactions involving the alienation of shares in property rights under separate agreements (that is, when housing is not sold by all participants in shared ownership). In addition to the notary's conclusion, you will also need a written notification of all other participants in shared ownership of the sale, indicating the terms of the transaction.

If spouses buy a house or apartment as joint property, a simple written form is enough for them. But if a husband and wife buy real estate as shared ownership (in a contractual mode), they will again have to go to a notary.

What are the advantages of selling without a notary?

According to realtors, the initiative has several advantages. Firstly, reducing costs when buying and selling, exchanging and donating an apartment.

After all, a notarial transaction required payment of a state fee of 0.5% of the contract price. Secondly, this significantly simplifies the procedure if the transaction needs to be carried out urgently.

At the same time, registration of the transfer of rights from the seller to the buyer in Rosreestr is a mandatory procedure; a notarial agreement does not cancel it.

— For example, you and I share an apartment in ½ share. If we want to sell it, we will have to certify the contract with a notary. What does it mean to “certify a contract with a notary”? This means that the purchase and sale agreement is not just printed on a computer, it is done by a notary and for this he takes half a percent of the contract price, but not more than 20 thousand rubles.

Plus about 5 thousand rubles will need to be paid for technical services. In total, on average, for one transaction we will have to incur from 15 to 25 thousand rubles of additional expenses every time we have minors or shared ownership.

And from August 1, amendments were made such that if an apartment is in shared ownership and is sold by the simultaneous decision of all owners, there is no need to contact a notary.

Registration of the transfer of rights from the seller to the buyer in Rosreestr is a mandatory procedure; a notarial agreement does not cancel it. Photo kadastr.tatarstan.ru

An agency representative gives another example. If there are three owners and they sell all their shares at the same time, then the transaction is not subject to notarization. But if among them there are minors and incapacitated persons, you will have to go to a notary, even if all the owners agree with the sale of the home.

— If there is only one owner, notarization is not required. Notarization in this case can be voluntary. But these are additional expenses. If the owners want to pledge the property, the same scheme applies: if both shares are pledged, the transaction is not notarial.

On the contrary, it makes life easier. If I’m not mistaken, until 2016 there was no notarization at all. It is not necessary. The notary gives additional guarantees of the rights of minors,” Veretennikov noted.

What risks does the initiative pose?

However, not all lawyers see only advantages in this initiative. Project Manager of the Moscow Bar Association “Yakovlev and Partners” Andrei Naberezhny believes that the presence of another barrier in the form of a notary created a certain obstacle for those who carried out dishonest real estate transactions.

— From an economic point of view, these are, of course, advantages. Because you don’t have to spend money on a notary, and often the sums were decent. On the other hand, when registering a transaction, the presence of another barrier that guarantees its purity would not hurt. But there is no need to complicate things either.

If you look at it conceptually, this is a plus, again, when there is no abuse, but, unfortunately, in our realities this is not always the case. This will not entail an overwhelming number of dubious transactions, but some isolated situations, of course, will arise, Naberezhny is convinced.

According to the publication’s interlocutor, black realtors have worked through their own notaries before, so a significant change in the situation here is unlikely to be expected: “I’ll say this - black realtors will be happy, they won’t have to spend money on a notary either.”

Notaries also had an ambivalent attitude towards the initiative:

— The notary certifies transactions and bears financial responsibility for completed contracts. And the registration authority only registers transactions, that is, the Registration Chamber does not bear any responsibility,” said Alsu Georgiadi-Avdienko at the notary’s reception.

Andrei Naberezhny believes that the presence of another barrier in the form of a notary created a certain obstacle for those who carried out dishonest real estate transactions. Photo by Roman Khasaev

Director of the Happy Home Academy Anastasia Gizatova notes that when making real estate transactions there can indeed be many pitfalls that the owner cannot find out about without the help of a specialist. However, the notary will still not be able to solve all the problems.

- Please note that the notary will be responsible for the last transaction between the seller and the buyer, which he certifies.

But if before this there was a 5-6-year history of this apartment, the notary cannot see this without additional requests; here it is very difficult to talk about his responsibility.

If we prescribe and determine the responsibility of notaries for the entire history of the apartment in a regressive manner, I think that many transactions in this case simply will not happen.

For purchase and sale transactions that took place, say, five years ago, there could be problems - the inheritance was incorrectly formalized, the rights of some heirs were infringed, who could find out about this and make their claims. When checking the history of an apartment, you can be horrified. It is necessary for notaries to look at the entire history of the apartment, says Gizatova.

Why was it initially planned to tighten the procedure?

It is curious that two years ago legislators came up with a completely different initiative: a bill was introduced into the State Duma, according to which any real estate transactions subject to state registration would have to be notarized.

In the explanatory note, legislators cited examples from international experience, from which it follows that in countries where notarization is mandatory, much fewer legal disputes arise. However, the main reason for tightening legislation was the increasing incidence of fraud in real estate transactions.

“Every day we learn from the media about a continuous stream of illegal transactions for the alienation of property, in fact, raider seizures of residential premises and other real estate.

The victims of such crimes are primarily representatives of unprotected social groups: elderly citizens, children, people who, due to various circumstances, are left without proper care and are unable to independently defend their rights,” the explanatory note to the bill said.

However, as a result, the law was not adopted. Moreover, it turns out that the State Duma decided to continue liberalization when registering real estate transactions and even expanded the list of cases when transactions can be executed without a notary.

Real estateBusiness Tatarstan

Registration of transactions for participants in shared ownership will be simplified

From July 31, 2023, the procedure for registering transactions for participants in shared ownership will be simplified. This means that from the end of July, share owners do not need to go to a notary if both parties to the transaction have agreed.

Rosreestr reminded citizens about changes to Federal Law No. 218-FZ “On State Registration of Real Estate”. These amendments will take effect on July 31. Why are they important? The amendments abolish the mandatory notarization of certain types of transactions with shares in common property rights.

This is what the RG correspondent was told at Rosreestr. According to the innovation, from July 31, 2023, notarization of transactions is not required for the alienation or mortgage of all participants in shared ownership of their shares in one transaction.

In this case, as a general rule, alienation transactions or agreements on the mortgage of shares in the right of common ownership of real estate are subject to notarization.

“Double” sites of Rosreestr will be removed from the Internet

The amendments are important and affect a huge number of citizens. According to Rosreestr statistics, as of March 31, 2023, 65.4 million rights of common shared ownership of individuals were registered in the Unified State Register of Real Estate.

The problem with citizens' shares has recently become very acute. Now the courts are overwhelmed with lawsuits that concern the owners and buyers of these shares. In addition, shares often appear in crime reports. When a minimum share is purchased, and then the survival of the owners begins.

The innovation will allow participants in common shared ownership, who make a mutual decision to complete a transaction, to reduce time and financial costs when alienating and mortgaging property.

And until July 31, 2023, the current version of the law “On State Registration of Real Estate” is in effect.

Let us recall that notarization of transactions for the alienation of shares in the right to real estate became mandatory in 2016, when changes were made to Art. 24 of Federal Law No. 122-FZ “On state registration of rights to real estate and transactions with it.” These amendments were also taken into account in Law No. 218-FZ.

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On May 1, 2023, the President of the Russian Federation signed the federal law “On amendments to certain legislative acts of the Russian Federation regarding the specifics of changing the terms of a credit agreement, loan agreement, which were concluded with a borrower - an individual for purposes not related to his business activities, and obligations the borrower for which are secured by a mortgage, at the request of the borrower,” which amends Art. 42 of Federal Law 218-FZ “On State Registration of Real Estate”.

Meanwhile

The Duma, in its second reading, is considering a bill banning the sale of micro-shares in apartments. This measure will protect people from raiders.

An unusual loan will be issued to those who want to move to abandoned villages

It is proposed to establish a rule according to which a share in the right of common ownership of housing can be formed provided that the size of the share of each of the owners provides him with the opportunity to move into the dwelling, subject to the accounting norm for the area of ​​the residential premises. Exceptions are privatization, inheritance, and also in cases where the right to common shared ownership arises by force of law.

There is a restriction on the owner’s right to move in “third parties” if, as a result, each person ends up with less than the accounting norm for the area of ​​the residential premises. One of the amendments introduced after the first reading states that moving into a share less than the norm is allowed only in certain cases, for example, by court, or if it is a child or parents of the owner.

What transactions now need to be completed by a notary? / Sibdom.ru

In early June, home sellers and buyers once again had to quickly learn how to make transactions under the new rules.

Changes to legislation have come into force, developing the trend of including notaries in real estate transactions that began in December last year.

The changes happened just as quickly and turned out to be as much of a surprise to the market as the regulations adopted at the end of last year.

Until recently, notarized transactions in the housing market were the exception rather than the rule.

 On December 29, 2015, Law No. 391-FZ “On Amendments to Certain Legislative Acts of the Russian Federation” came into force, which introduces the mandatory participation of notaries when registering a number of real estate transactions.

From now on, the parties must engage a notary to certify the transaction when selling an apartment whose owners include minor children, as well as if a share in the ownership of the apartment is being sold to an outsider.

After June 2, 2016, the list of transactions subject to registration by a notary has expanded. These now include absolutely all transactions with shares in the ownership of real estate. Without the participation of a notary, it is now impossible to sell, donate, or exchange a share in an apartment.

The transaction will also need to be certified by a notary if the share in the ownership of the apartment is sold to another co-owner.

And also when an apartment that is in common shared ownership of all family members is sold as a whole.

In addition, the alienation of apartments of minors must be registered with a notary. In practice, this means that without a notary, the parties cannot not only sell the apartment, but also enter into an exchange agreement.

Prepared by a notary:

• transactions for the alienation (sale, exchange, donation) of shares in the right of common ownership to any person (including one of the co-owners);
• alienation (sale, exchange, donation) of an apartment, the owner of which is a minor child;
• transactions in which an apartment that is in common ownership of family members (the shares of each family member are determined) is sold as a whole.

No notarization required:

• when selling an apartment that is jointly owned by spouses;
• when selling an apartment that has one owner.

Without a notary you cannot not only sell an apartment, but also enter into an exchange agreement. 

At the same time, transactions that relate to the property of a mutual investment fund or that which is acquired by a mutual investment fund were excluded from the list of notarial ones.

According to the law, such property is the common property of the mutual fund participants, they are controlled by the Central Bank, they do not need to be additionally certified, the existing norm was redundant, so the notarization of these transactions was canceled.

“On June 2, Federal Law 172-FZ came into force, which amends the law “On state registration of rights to real estate and transactions with it,” explains Elena Abramova, a notary and member of the board of the Notary Chamber of the Krasnoyarsk Territory. “And from January 1, 2017, the same changes to the new law on state registration of real estate No. 218-FZ will come into force, which will replace the existing one.”

What work does a notary do when certifying a transaction?

Notaries are entrusted with checking the so-called legal purity of the apartment: they must make sure that there are no legal obstacles to the transaction, and that the interests of third parties will not be violated as a result of the sale. To make sure of this, the notary needs to collect all the documents necessary for the sale and check whether there are any controversial issues in them that could later lead to the recognition of the transaction as invalid.

“Notarization of a transaction provides an increased guarantee,” explains Elena Abramova, “in relation to facts that are secured by documents certified by a notary, increased evidentiary value has been established. If it is determined that the notary’s error led to the recognition of the transaction as invalid, the material damage to the buyer will be compensated.”

At the same time, it is necessary to make a reservation that we are talking about this specific transaction certified by a notary. If during the previous period any violations were committed during transactions, as a result of which the transaction will be challenged, no one is responsible for this.

According to Elena Abramova, the notary also requests the documents missing for the transaction.

“Citizens need to come to the notary with the title documents for the apartment; if some documents are missing to complete the transaction, the notary himself will request this information,” says Elena Abramova, “We request information from the Unified State Register, we receive not only publicly available information.

There are limited-use registers, from which we receive information about the deprivation of legal capacity of citizens, whether an individual is bankrupt, about marriage contracts and the validity of passports.

The time frame for registering property rights on the basis of notarized transactions has been reduced. If registration documents are submitted electronically by a notary, registration takes one day.

If citizens provide documents for registration on their own, registration of rights occurs within three working days.

Only the buyer, without sellers, can apply to the registration authority with a contract certified by a notary.

The cost of notary services is changing

The cost of notary services for registration of real estate transactions consists of two parts:

• state fee for performing notarial acts
• and fees for legal and technical work.

The amount of the state duty depends on the transaction amount. According to Article 333.24 of the Tax Code of the Russian Federation, it is 0.5% of the contract amount, but not more than 20 thousand rubles. Thus, when selling an apartment that belonged to a minor child worth 3 million rubles, the notary fee for certifying the transaction will be 15 thousand rubles.

The second part of the payment - the cost of legal and technical work - is established centrally by the notary chamber in each region.

“This was done so that there is a uniform approach to determining fees for services,” explains Elena Abramova. — As practice shows, previously, where there were no such centrally established tariffs, the cost of notary services was higher than in other regions.

In order to streamline the amount of fees for notary services, this year the Federal Chamber of Notaries adopted an act mandatory for all chambers of the constituent entities of the Federation, which determined the maximum amount of tariffs for legal and technical work.

The maximum threshold for payment for the legal and technical work of a notary when certifying an agreement, for which the notarial form of registration is required by law, in the Krasnoyarsk Territory for 2016 was 6,835 rubles.

“In practice, the fee will most likely be less, five thousand rubles,” says Elena Abramova. — In cases where a contract is not required for notarization by law, citizens turn to a notary at will; the maximum tariff for legal work is set at 13,671 rubles. It is expected that it will be significantly lower and amount to two thousand rubles.”

The same decision of the Federal Notary Chamber established benefits for minors in paying tariffs for legal and technical work. At the same time, you need to understand that when conducting a transaction, the parties to the transaction will be exempt from payment only for that part of the share in which the apartment belongs to the minor.

For example, if an apartment is jointly owned by one parent and one minor child and is sold to one buyer, the tariff for legal and technical work will be reduced by one third. Until now, the fee for legal and technical work in the Krasnoyarsk Territory in such cases was 3,000 rubles.

These changes will take effect on July 1, 2016.

Opinion of real estate market professionals

Alexey Lagutin, director of the Academy of Sciences "Krom"

Almost all transactions on the secondary housing market are now subject to mandatory notarization. It applies to all those objects where there is shared ownership.

These are transactions with privatized apartments, with apartments purchased with the participation of maternal capital.

One of the conditions for using maternity benefits is giving children a share in the ownership of the property.

The reason for the innovations is, in general, clear: the state does not have enough money, and these changes are an opportunity to receive quite significant funds. The notary fee is not as high as it was in 1998, when the cost of notary services was up to 1.5 percent of the transaction amount.

Now on average the costs of the parties range from 10 to 25 thousand rubles. As for who exactly should pay for the notary’s work, the seller or the buyer of the home, the issue here is resolved individually, by agreement. In most cases, the costs are split equally between the homeowner and the homebuyer.

The changes were introduced recently; there is no established practice yet. 

Elena Abramova, notary, board member of the Notary Chamber of the Krasnoyarsk Territory

Federal Law 172-FZ, which came into force at the beginning of the summer, clarifies the issues that arose in practice after the introduction of changes last year. Thus, legislators determined that those transactions in which all participants in shared ownership sell their shares are also subject to notarization, that is, the entire apartment in common shared ownership is sold.

Elena Kats, Head of the Legal Support Department of the Rosreestr Office for the Krasnoyarsk Territory

After the introduction of mandatory notarization of a number of real estate transactions, the legal examination carried out by the Rosreestr Office for the Krasnoyarsk Territory during registration is limited for notarial transactions. In this case, the notary is responsible for checking the legality of the terms of the transaction.

Prepared by a notary:

• transactions for the alienation (sale, exchange, donation) of shares in the right of common ownership to any person (including one of the co-owners);
• alienation (sale, exchange, donation) of an apartment, the owner of which is a minor child;
• transactions in which an apartment that is in common ownership of family members (the shares of each family member are determined) is sold as a whole.

No notarization required:

• when selling an apartment that is jointly owned by spouses;
• when selling an apartment that has one owner.

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Without a notary: from August 1, 2023, the mandatory notary for transactions with real estate shares is canceled

The rules for registering ownership of real estate in the Russian Federation are periodically revised. The purpose of the changes is to make the transaction as safe as possible for both the buyer and the seller.

Federal Law FZ-218 “On State Registration of Real Estate,” adopted only in 2015 (and which came into force in 2017), has already been amended several times. In 2016, amendments were made that introduced mandatory notarization of transactions for the alienation of shares.

And here are the new changes: from August 1, 2023, the mandatory notary for transactions with shares is cancelled. However, according to the new law, this rule does not apply to all transactions, but only to part of them. In addition, Federal Law No. 218 specifies cases where notarization is still required.

That is, the changes are not universal. Read more in the article.

Legislative basis

The abolition of notarization of real estate transactions in 2023 was (partially) approved by Federal Law Federal Law No. 76 dated May 1, 2022. He introduced changes to a number of legislative acts, including the federal law on the procedure for state registration of real estate. In Part 1 of Art.

Federal Law-76 states that it comes into force after 90 days from the date of its official publication. The first publication took place on the official legal information portal on May 1, 2023.

At the same time, a complete abolition of notarization of transactions with shares has not yet been introduced - mandatory notariation from August 1, 2023 (more precisely, from July 31) continues to operate for a number of transactions.

For which transactions with shares is notarization required?

In the original version, even before the latest changes, exceptions had already been made regarding the mandatory use of notarization of transactions for the alienation of shares in the right to real estate. In accordance with Part 1 of Art. 42 FZ-218 transactions with shares that do not require notarization are the following transactions:

• related to the property constituting a mutual investment fund;
• related to property acquired specifically for inclusion in such a fund;
• on alienation of land shares;
• on the sale or receipt, acquisition of shares in the right of common ownership of real estate upon concluding an agreement providing for the transfer of ownership of housing in accordance with the Law of the Russian Federation No. 4802-1 “On the status of the capitals of the Russian Federation” (exception - the case specified in Part 19 of Article 7.3 of the above law).

These cases have not lost their relevance with the adoption of the new Federal Law-76. In addition, these rules, like the newly approved ones, also apply to the execution of a mortgage agreement providing for shared common property.

According to the norms of Federal Law 76, it is now possible to additionally buy or sell a share without a notary if all co-owners simultaneously enter into one agreement on the alienation of their shares or a mortgage agreement. This is the essence of the latest change, which was announced with the loud phrases “notarization of transactions with real estate shares will be canceled in 2023.”

How to sell a share in an apartment - step-by-step instructions in 2023

Which transactions with shares in real estate require notarization?

Transactions with shares in 2023 will take place according to the new rules from July 31. According to the latest changes, if an object in respect of which the regime of common shared ownership is established is sold under one document at a time by all co-owners, notarization is not required.

At the same time, for many other cases of implementation of such objects, this requirement remains relevant. Exceptions introduced before the adoption of Federal Law 76 are indicated above in the article.

In addition, we must not forget that in accordance with Part 2 of Art. 54 FZ-218, notarization will also be required when alienating real estate owned

• to a minor;
• limited capacity.

Thus, if one of the co-owners of an object in shared ownership is a minor or has limited legal capacity, the transaction will need to be formalized by a notary.

How to discharge a person from an apartment without his consent?

Meaning of amendments

The significance of innovation cannot be underestimated. Shared ownership is quite common in the Russian Federation; according to Rosreestr, more than 65 million rights of common shared ownership of individuals are registered in the Unified State Register of Real Estate.

The amendments will allow citizens who intend to sell property quickly by mutual decision to exercise their rights as quickly as possible and significantly reduce the financial costs of completing the transaction.

Meanwhile, the State Duma adopted in the second reading a bill banning the sale of micro-shares in apartments. This document provides a rule according to which the formation of shares may be limited.

The size of the share should allow the owner to exercise his rights to move in, subject to the established housing accounting standards.

There are also exceptions to this rule: privatization, inheritance, the emergence of shared ownership in accordance with the law.

It also provides for the restriction of the owner’s rights to move third parties into the home (with the exception of children and parents), if as a result the housing provision standards are violated. It is assumed that these innovations, among other things, will help protect citizens from raiders.

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Sale of a Share in an Apartment in 2023 Need a Notary

The state fee for an extract from the Unified State Register of Legal Entities recognizing the copyright holder as incompetent or partially capable on paper is 950 rubles.

Selling a share in an apartment in 2023, do you need a notary?

It is worth noting that the notary bears full financial responsibility for all notarial acts performed, which is an additional guarantee of the rights of the parties to the transaction.

Federal Law No. 172-FZ of June 2, 2023 includes in this list the following types of transactions for which a mandatory notarial form is provided: Call us or make an appointment using the electronic form in order to receive detailed advice and begin the process of preparing for the conclusion of an agreement purchase and sale of an apartment or house.

Read also:  Where to start a divorce with division of property?

When the Russian Federation compensates for damage caused to the person or property of a citizen or the property of a legal entity by lawful actions, with the exception of the case specified in Part 3 of this article, the rights registration authority has the right of recourse in the amount of the amounts reimbursed by the Russian Federation: 1) to a government body or to a local government body, if such losses arose as a result of the court declaring an act of a state authority or local government body illegal; 2) to the person who performed cadastral work, if such losses arose as a result of a registry error and the provision by this person of inaccurate data and documents for making an entry about the property in the Unified State Register of Real Estate. This requirement cannot be addressed to a legal entity or individual who has entered into an agreement on carrying out cadastral work with the person who performed the cadastral work; 3) to another individual or legal entity whose illegal actions led to such losses.

Do you need a notary when selling a share of land in 2018-2019?

The process of selling a share of a land plot has its own legal subtleties. Depending on the current situation, the transaction can be carried out in different ways. If you have any questions regarding the sale of your land interest, please consult with a legal professional.

1. Property transactions, one of the parties to which is a minor citizen.
2. Transactions made by incapacitated persons or legal representatives on their behalf.
3. Property transactions made by any persons in relation to shares of real estate.

Donating a share of an apartment from a notary: how it is formalized in 2023, how much it costs and what documents are needed

The foundation agreement is a document on the basis of which the donor owns a share or the entire apartment. When the apartment was purchased, it is a purchase and sale agreement. Or the donor inherited the apartment, then a certificate of inheritance. When during privatization – privatization agreement, etc.

If the donor or recipient cannot personally contact the notary (for example, lives in another city/region), then he must draw up a power of attorney from his local notary and send it by mail to his authorized representative.

And the authorized person, together with the donor or donee, will already contact their notary to draw up and sign the agreement. The donee does not have the right to issue a power of attorney to the donor himself to sign a gift agreement for him, and vice versa.

Because the donor and the donee cannot be the same person (clause 3 of Article 182 of the Civil Code of the Russian Federation).

Notarization of a donation agreement for a share in an apartment in 2023

In the first case, it does not matter how the owner became the owner of the property, whether it was inherited, purchased or privatized. It also does not matter who the citizen is, who, according to the concluded agreement, will become the owner of the already shared property. If a citizen is the rightful owner of an apartment, he can donate its share to anyone he wishes.

Despite the fact that the amount of remuneration for a specialist is quite high, most citizens prefer to formalize the donation of an apartment or its share by a notary. Those who turn to a professional have a better chance of winning the case if in the future someone challenges the legitimacy of the documents drawn up.

Do you need a notary when selling an apartment in shared ownership?

Not so long ago, notarization of a purchase and sale agreement was optional and was carried out only at the request of the parties. However, after amendments were made to Federal Law No. 122-FZ on July 2, 2016, certification of transactions for the alienation of real estate shares by a notary became necessary.

1. Checks the contents of the contract for completeness and compliance with current legal regulations.
2. Verifies the capacity, adequacy and free will of the parties.
3. Examines title and other documents presented.
4. Provides details for paying state fees and notary services.
5. Supervises the signing of the contract.

The procedure for selling a share in an apartment to a new owner

The ability to sell a share on the terms fixed in the agreement directly depends on compliance with the procedure for notifying the remaining shareholders, as well as the outcome of this procedure. Violation of the rule on mandatory notification may result in the transaction being declared invalid at the request of an interested party.

1. during the specified period, none of the co-owners will express their opinion or respond to the notification - the transaction can take place on the terms specified in the agreement;
2. co-owners can immediately respond by refusing the pre-emptive right to purchase a share - the transaction can take place immediately after receiving an official refusal;
3. one or more shareholders can exercise their right and demand that a purchase and sale agreement be concluded with them - in this case, the initial transaction cannot take place, the alienation will be carried out in favor of one of the owners.

Sale of a share in an apartment to a third party notary 2023

In the ownership right, such a share is displayed as a percentage or fraction of the total area. The sale of a share is carried out in the same manner as the sale of the entire apartment. But there is also some nuance. The remaining owners have a priority right to purchase a share.

This rule also applies to the alienation of other objects that are in shared ownership, for example, a house, land or room. You can inform co-owners of real estate about the sale of a share in various ways: If this procedure is not followed, shareholders have the right to challenge the sale of part of the apartment in court.

Apartment for sale in 2023

• alienation of shares in the right of common shared ownership. This is a sale, donation, allocation of shares, exchange
• alienation of real estate owned by minors or incompetents
• purchase of real estate in shared ownership by legal spouses (recognized as a division of jointly acquired property. Article 38 of the Family Code of the Russian Federation)
• pledge of shares in favor of the creditor

There is no need to provide it to Rosreestr; the state registrar has access to this information, but it is necessary to draw up an agreement.

Cancellation of notary transactions

The abolition of notarial transactions with shared ownership has occurred. A simplified procedure for real estate transactions has come into force . This means that costs for the purchase and sale, exchange and donation of real estate are SIGNIFICANTLY reduced. After all, a notarial purchase and sale transaction required payment of a state fee of 0.5% of the contract price.

https://www.youtube.com/watch?v=JJvZSQSLRk4

In addition, registration of the transfer of rights from the seller to the buyer in Rosreestr is a mandatory procedure!

And the notarial agreement does not cancel it.

A small part of transactions still remain “in the hands” of notaries.

Cancellation of notarization of transactions

The abolition of notarization of transactions is a long-awaited event. After all, a notarial transaction not only required large financial costs, but also greatly complicated and delayed the transaction procedure. But there was no use in this.

• On May 1, 2023, the President of the Russian Federation signed Federal Law No. 76-FZ.
• This law amends Article 42 of Federal Law-218 “On State Registration of Real Estate”
• Now Article 42 of Federal Law 218 is stated in the following wording:

“Transactions on the alienation or mortgage agreements of shares in the right of common ownership of real estate are subject to notarization, with the exception of transactions involving the alienation or mortgage by all participants in shared ownership of their shares in one transaction , transactions related to property constituting a mutual investment fund or acquired for inclusion as part of a mutual investment fund, transactions for the alienation of land shares, transactions for the alienation and acquisition of shares in the right of common ownership of real estate when concluding an agreement providing for the transfer of ownership of residential premises in accordance with the Law of the Russian Federation of April 15, 1993 N 4802- 1 “On the status of the capital of the Russian Federation” (except for the case provided for in part nineteen of Article 7.3 of the said Law).”

90 days after the official publication in the Rossiyskaya Gazeta, the law will come into force and the parties to the transaction will save significant money. And from 01.08.2022, participants in shared ownership will be able to alienate it (with simultaneous alienation by all participants) without notarization, under a contract or agreement in simple written form.

Cancellation of notarization of real estate transactions (exceptions to the rule)

So. Now there is no need to necessarily certify the alienation of real estate - purchase and sale, donation, exchange, allocation of shares. BUT!

There are exceptions to this rule:

1. Transactions on the alienation of real estate or shares in the right to it belonging to INCOMPETENT and MINORS owners are subject to mandatory certification by notaries.

Article 54 Federal Law -218 “On state registration of real estate”

clause 2 “Transactions related to the disposal of real estate under guardianship conditions, as well as transactions for the alienation of real estate belonging to a minor citizen or a citizen recognized as having limited legal capacity, are subject to notarization.”

In addition, such transactions require special permission from the guardianship and trusteeship authorities. Guardianship permission for sale is easy to obtain

The acquisition of real estate by an incapacitated person or a minor does not require certification by a notary or permission from the Guardianship.

2. Transactions on the alienation of shares in property rights IN SEPARATE AGREEMENTS (not by all participants in shared ownership at once under one transaction) still require notarization and, in addition, written notification of all other participants in shared ownership about the sale indicating the terms of the transaction.

Note!!!

“...all participants in shared ownership of their shares under one transaction..

That is:

1. The transaction must be formalized in one agreement. If, in order to reduce the tax burden using a tax deduction of 1,000,000 rubles, the participants in shared ownership formalize the transaction with different sales and purchase agreements (sale agreements) - this is not one transaction, then certification of the SPA by a notary is required.
2. The second common situation is transactions of donation or purchase and sale within participants of shared ownership. For example: an apartment is owned by three owners, one of whom decided to donate his share to one of the other two participants. This is a notarial transaction.
3. Another common situation is that there are two participants in shared ownership, one alienates (donates or sells) his share in favor of the other. How in this case? The procedure for such a transaction in Art. 42 is NOT described, which means each registrar will use it differently. Until the central office of Rosreestr or the Supreme Court expresses its position on such transactions. But you'll have to wait a long time, unfortunately)
4. There are also transactions for the distribution of shares (changes in the size of shares between participants in shared ownership. That is, the composition of the participants does not change, only the size of the shares changes. For example: there were 12 shares each, the participants redistributed the shares by agreement and it became 99/100 and 1/100 shares. Such transactions are described in paragraph 2 of Article 42. They do NOT require certification of the distribution agreement by a notary.

Transactions involving the PURCHASE OF REAL ESTATE BY LEGAL SPOUSES IN SHARE OWNERSHIP require the agreement to be certified by a notary. Since common shared property is not a legal, but a contractual regime of ownership. The legal regime of property of spouses is common joint property.

The law allows legal spouses to register joint ownership of an apartment, house, land plot, room or share in the right to these real estate objects in simple written form.

And when spouses purchase real estate as shared ownership (if you really need it), you need to certify the transaction with a notary, or provide to Rosreestr, along with the agreement in simple written form, a notarized Marriage Agreement, which spells out the contractual regime of ownership of property acquired during marriage.

Read more: Buying an apartment by spouses

From 02/01/2022, a notary who certifies a real estate transaction must send FREE documents to Rosreestr electronically to register the transfer of ownership from the seller to the buyer (this is a mandatory government procedure that completes the transaction).

HOWEVER, a notarial agreement does not exclude registration of the transfer of rights in Rosreestr. This is a mandatory procedure!

Cancellation of mandatory notarization of transactions with shares

Many properties are registered as shared ownership. This often happens during the privatization of housing. Until December 29, 2015, the purchase of real estate by spouses was registered as shared ownership without a notary, and such transactions were “universal.”

1. So, for such owners, the abolition of notarial transactions with shares is a great joy.
2. BUT!
3. Very often, shared ownership is now registered in the name of all family members.

A lot of housing has been purchased, and will be purchased in the future, using government funds to support families with children. And minors become participants in shared ownership.

And transactions for the alienation of real estate belonging to minors or incompetents remain notarial.

If you do not have such complications in the transaction, draw up a purchase and sale agreement in simple written form and submit it along with applications for registration of the transfer of rights to Rosreestr. Documents are submitted to Rosreestr through the MFC, and on an extraterritorial basis - to the Rosreestr office.

Contract templates are here.

The seller submits an application for the transfer of rights from him to the buyer.

The buyer submits an application for registration of property rights and pays a state fee of 2000 rubles. How to correctly pay the state fee for registering property rights.

The position of the Federal Cadastral Chamber on changes to Article 42: “The new law No. 76-FZ simplifies the procedure for registering transactions for participants in shared ownership. Thus, from July 31, 2023, notarization is not required when concluding a transaction for the alienation or mortgage of shares in real estate, if the transaction is carried out simultaneously with all owners.

In other words, an agreement for the purchase and sale, gift, inheritance or mortgage of shares can be concluded in simple written form if signed by all share owners of the property without exception.

“Thanks to the innovation, citizens have the right to decide whether they need to have a general transaction with shares notarized.

After all, often the co-owners of an apartment, house, garage or land plot are close relatives who simply have no need to confirm the legality of a transaction with each other,” says Nadezhda Leshchenko, an expert at the Federal Cadastral Chamber.

The abolition of the mandatory notary fee for co-owners participating in one transaction will significantly reduce the financial burden on citizens and make the process of turnover of real estate in common shared ownership simpler and more accessible. At the same time, at the request of the copyright holders, any transaction, as before, can be certified by a notary. "Primary source

Cancellation of notarial transactions when allocating shares to children

As of July 1, 2018, it is possible to allocate shares to children without a notary from the sole and joint property of the parents. But still not everyone knows about it.

Allocation of shares to children without a notary (Change in the law!)

For more information on how to independently allocate shares to children, read the article: Allocation of shares to children without a notary (Change in the law)

2019 new law on notarization of all transactions with shares, even when purchasing

It is possible to certify transactions at the notary level if both parties wish, but there are situations when accompaniment without a notary is impossible by definition . In such situations, the law requires the agreement to be drawn up in a strictly defined form.

1. Marriage.
2. Rente.
3. Donations, purchases and sales, pledges of shares.
4. This also includes preliminary agreements, in situations where the transaction will later be concluded in the presence of a notary.
5. Termination, assignment and modification of debts under contracts that were concluded by a notary.
6. Payment of alimony.

Do you need a notary when selling a share of land in 2018-2019?

Any transaction related to the sale of shares of real estate, and, in particular, a land plot, must be carried out in accordance with the requirements of the law. In this article we will tell you how the sale of a share of a land plot is carried out in 2018-2019, whether documents need to be certified by a notary and what subtleties accompany such a transaction, based on the situation.

We recommend that you contact a geodetic company and carry out the surveying procedure properly. After receiving all the necessary documentation, there will be no problems with the execution of transactions regarding the share of the plot. In addition, you will thereby avoid disputes with neighbors.

Sale of a share in an apartment - notarial transaction

The notary lobby and the State Duma presented Russians with another “gift” for the New Year - Law No. 391-FZ of December 29, 2015 “On Amendments to Certain Legislative Acts of the Russian Federation.” Effective date: December 29, 2015.

Such “protection” is actually a duplication of the functions of the registration chamber, which is obliged to conduct an examination of the compliance of transactions for the sale of shares with the requirements of Article 250 of the Civil Code of the Russian Federation.

250 of the Civil Code of the Russian Federation? It won't protect at all. So there is nothing but commercial interest in introducing this amendment into law.

Share in an apartment

Today, it is important to purchase part of an apartment or house to acquire registration (registration).

Only in this case the buyer is interested in the minimum standard for the possible part of the purchase of quadrature, which, according to the new law, is established by the authorities of each region of Russia. Supposedly the size varies from 8 to 15 square meters.

m per person. In Moscow, the norm intended for sale must be at least 10 square meters. m.

Let us remind you. Regardless of place of residence, changes in the legislation on the sale of real estate apply to both the metropolis and a small town. We are talking about the implementation of a micro share, i.e. a small part of your apartment, which was previously especially in demand when purchasing.

As we remember, the sale of a small part of the house was especially in demand among migrants, both internal and those who arrived from abroad, for certain purposes. Even if accommodation was impossible due to the small area, it was possible to obtain permanent registration in order to find a job and receive benefits and allowances.

For example, the income benefit for a low-income family in Moscow is very different from the regional one

List of transactions subject to mandatory notarization

• Explaining contractual obligations and rights to interested parties, as well as the terms of the process. If a situation arises where the interests of any of them are infringed, such information is communicated to them;
• Certification of documents by a notary guarantees the purity of the procedure and its protection from appeal. If any fact is confirmed by an appropriate specialist, then it will not need to be proven in court proceedings, not including cases where its authenticity is refuted in the prescribed form;
• The notary bears absolute financial responsibility for failure to comply with the norms of the Fundamentals of Legislation on Notaries when carrying out relevant activities and causing damage.

1. Representation by proxy. Required for legal transactions that require mandatory registration with a notary, submission of statements, disposal of powers and other actions established by Art. 185 of the Civil Code of the Russian Federation. For a power of attorney providing for the transfer of powers, there is a form drawn up by a notary (Article 187 of the Civil Code of the Russian Federation).

   This rule does not apply to documents issued by organizations or their heads.

2. Collateral obligations. The agreement is prepared in a simple written format, but its certification by a notary office is regulated by Art. 22 FZ-14, when a share or part thereof in the authorized capital of an LLC is pledged.

   If he ensures the fulfillment of obligations under a notarized agreement, then the document must also be certified by the appropriate specialist (Article 139 of the Civil Code of the Russian Federation).

3. The assignment of rights of claim arising from obligations formalized in notarial form is carried out in the same way (Article 389 of the Civil Code of the Russian Federation).

4. The transfer of debt obligations requires compliance with the rules established by Art. Art. 389, 391 Civil Code of the Russian Federation.
5. Rent. An agreement to transfer a property for payment of maintenance must undergo a registration procedure (Article 584 of the Civil Code of the Russian Federation).
6. Will. It is drawn up in the form of a document and certified by a notary office.
7. Consent of husband/wife.

   If one of them participates in transactions for the transfer of property rights that need to be entered into the Unified State Register, the notarized consent of the other spouse will be required (Article 35 of the Civil Code of the Russian Federation).

8. Marriage contract.
9. Agreement on the fulfillment of alimony obligations (Article 100 of the Civil Code of the Russian Federation).
10. Transfer of shares in the right of common real estate.

    Does not apply to procedures related to property included in a mutual fund involving investments, or purchased for inclusion in it, the sale of land areas, as well as general ownership of real estate.

11. Carrying out operations to dispose of property objects with the participation of guardians, minors or partially incapacitated persons.

12. Sale of part of the authorized capital of the organization.
13. A partnership agreement with the participation of investments, implying the implementation of joint measures, the transfer of powers and obligations under it.
14. Partnership management agreement and amendments to it.
15. Alienation of a share in the formed partnership fund.

The Federation Council approved the law on notarization of transactions with real estate shares

The Federation Council approved a law according to which the transfer of real estate shares from one owner to another will need to be formalized by a notary. It is expected that this will help ensure the legal purity of transactions and will make it possible to effectively combat apartment fraud, Rossiyskaya Gazeta reports.

We recommend reading: Child deduction limit in 2023

There are many schemes in Russia that are used by scammers. For example, a stranger is given a share of a share in real estate, that is, a microshare. The owner of the microshare ceases to be an outsider in the apartment, and later the entire share can be registered in his name, bypassing the notary and without notifying the other owners.

The Federation Council approved the law on notarization of all transactions with real estate shares

“As experts say, the crooks could have used different schemes. For example, donating to a stranger not the share itself, but even a micro-share of an existing share in real estate.

That is, cut off a little from what has already been cut off.

The new owner ceased to be an outsider in the apartment, and then the entire share could be re-registered to him, bypassing the notary ,” the newspaper writes.

According to the new law, all transactions for the alienation of shares in real estate are subject to notarization. The notary, in turn, when certifying the transaction, is obliged to make sure that the co-owners of the real estate are properly notified of the possibility of a pre-emptive right to purchase.

In addition, notes the Internet portal of the legal system "GARANT", from January 1, 2017, a notary will not need to certify transactions for the alienation of shares in the right of common ownership of any real estate, including when all participants in shared ownership alienate their shares one by one deal. Let us recall that the initiative to cancel notarization of transactions for the sale of land shares in May of this year was made by a group of deputies together with member of the Federation Council Gennady Gorbunov.

New in terms of notarization of real estate transactions

For state registration of the right of common shared ownership of owners of investment shares to real estate constituting a mutual investment fund (acquired for inclusion in the mutual investment fund), restrictions (encumbrances) of this right or transactions with this property, in addition to the documents required in accordance with this Federal Law, documents must be submitted :

On June 2, 2016, Federal Law No. 172-FZ “On Amendments to Certain Legislative Acts of the Russian Federation” was adopted, which amended Article 24 of the Federal Law of July 21, 1997 No. 122-FZ “On State Registration of Rights to Real Estate and Transactions” with him".

Is it necessary to notarize a housing purchase agreement with children’s shares?

According to the letter of the Federal Tax Service dated June 22, 2016 N 2173/03-16-3, the notary fee is charged in the amount of 0.5% of the contract amount, but not less than 300 rubles and not more than 20 thousand rubles.

10 facts about joint and shared ownership of housing What do you need to know when buying a house in the village? Transactions on the sale of a share in the right of common ownership of real estate to an unauthorized person are subject to mandatory notarization (that is, when the alienated property belongs to two or more owners and for this reason is shared), or transactions on the sale of real estate owned by a minor citizen or a person recognized limited capacity. In your case, one owner (solely) transfers a single property into your joint ownership (of two or more persons).

Article 333.

24 of the Tax Code of the Russian Federation for certification of contracts, the subject of which is subject to assessment (if such certification is required in accordance with the legislation of the Russian Federation), a state duty is established in the amount of 0.5 percent of the contract amount, but not less than 300 rubles and not more than 20,000 rubles ( subparagraph 5 of paragraph 1 of article 333.24). “When certifying a transaction for the purchase and sale of an apartment worth 3,500,000 rubles, in which one of the sellers is a minor, the cost of notary services will be 17,500 rubles. To save time, you can also additionally pay the notary for the service of transferring documents for registration with Rosreestr - 1,000 rubles. Do not forget that when certifying a transaction, some notaries additionally charge a fee for “legal and technical services.”

How to sell a share in an apartment - step-by-step instructions in 2018

Third step : if a refusal is received or there is no response, the interested party can enter into a purchase and sale agreement. In this case, refusal with reservations cannot serve as an obstacle. Or the agreement is concluded on the proposed terms with one of the co-owners.

To have a general idea of ​​the procedure for carrying out a transaction, you need to have an idea of ​​what the legislator means by the concept of “share in property.”

This is the right to a part of the object, which is not necessarily defined by any exact characteristics, but is indicated in the form of 1/2 or 1/3, that is, the share may not be allocated to a separate property.

The issue of using a specific room is decided by the co-owners, and each individual owner has the right to demand at any time the allocation of a share on the basis of Art. 252 of the Civil Code of the Russian Federation.

Transactions with real estate shares are now formalized only through a notary

If the apartment is not communal and the shares in the property are not allocated, then in order to resolve issues of using the common property, a joint decision of the property participants is necessary, that is, a mutual, unanimous opinion, so to speak, agreement.

When such agreement is not reached, then in order to avoid questions arising about the violation of the rights of another co-owner, the dispute must be resolved only in court. That is, a claim should be filed regarding the procedure for using the common property.

No, it's not legal. The mother is the legal representative of the children and can act on her own behalf in their interests. A gift is an unconditional transaction and does not require minors to provide reciprocal obligations (payment, etc.). Thus, the rights of minors are not infringed in any way. The participation of the guardianship authority is not required by law in such a transaction.

08 Feb 2023 juristsib 1390