Is it possible and how to allocate a share to a child in another apartment?

Is it possible to allocate shares to children?

The property rights of the child are enshrined in Art. 60 of the Family Code of the Russian Federation . It defines the child's right to own property.

• If maternity capital was used when purchasing an apartment, then allocating a share for the child becomes a mandatory requirement for completing the transaction.
• In order to allocate a share to a minor in a mortgaged apartment, the consent of the guardianship authorities is required to pledge the child’s property and at the same time the consent of the bank to allocate this share.
• Permission from guardianship authorities for children aged 0 to 14 years is obtained by their legal representatives; children over 14 years of age receive permission independently, with the consent of their parents or guardians.

In common practice, shares are allocated after the mortgage is repaid and the encumbrance on the property is removed. However, there are situations where separation is necessary before the transaction is completed.

Allocation of share before mortgage payment

Before paying off the mortgage, the allocation of a share may become necessary if the apartment is purchased using family capital. When using family capital, the parents agree to allocate a share in the property to their children after repaying the loan, which is certified by a notary.

If we are talking about a facility under construction, it will not be possible to immediately allocate a share. It must be allocated before putting the property into operation or before registering ownership of the housing. When constructing a private household, an additional allocation of a share of the land plot will be required.

The guardianship authorities give consent to the execution of the transaction if the rights of the children are stipulated in the real estate purchase and sale agreement. Therefore, the allocation of shares is required before receiving a loan.

Problems may arise with the sale of property that belongs to a minor if the borrowers are unable to repay the mortgage loan.

Conflict resolution is possible in several ways:

• offer the lender another property as collateral;
• transfer other property to minors;
• turn to loyal lenders working according to AHML standards.

Allocation of share after loan repayment

Within six months after the mortgage is repaid, the legal representatives of minors are required to allocate a share in housing for the children (if necessary). If this condition is not met, the authorized bodies may go to court against the parents, and the maternity capital will need to be returned.

Registration of a share is carried out through the execution of a deed of gift or the signing of an agreement to transfer part of the property to the child. Both methods represent a procedure for the gratuitous transfer of a share in residential real estate.

Both documents contain the following information:

1. Information about the participants in the transaction: I.O.F., date of birth, passport details;
2. Generic characteristics of the property, its registration number;
3. The size of the allocated share;
4. If a share is allocated to a minor under 14 years of age, his legal representatives are indicated.

The Law does not stipulate how many square meters should be allocated to a minor; the amount is determined by local authorities. If more children were born in the family during the mortgage payment, then the shares in the apartment are distributed to all children born in a joint marriage between the borrower/co-borrower under the agreement.

The allocation of a share is made by a notary; you will need to pay a state fee depending on the size of the allocated area.

The following documents must be submitted to Rosreestr:

1. Passports of all parties to the transaction;
2. Certificates of marriage, birth of children;
3. Documents for the purchased housing: Extract from the Unified State Register of Real Estate, purchase and sale agreement;
4. Agreement for the allocation of a share or a gift agreement;
5. Receipt for payment of state duty.

It is necessary to write an application for registration of property rights on behalf of all parties to the transaction.

All documents are submitted in original with copies attached.

Agreement on granting minors rights to housing

The agreement is drawn up in the Pension Fund of the Russian Federation before the transfer of maternity capital funds to pay for housing. It contains the obligation of parents to allocate a share to minor children.

The obligation to allocate a share to children lies with the parents with whom there is a proven family connection, i.e. when the child is common in the marriage.

When signing an agreement, the parents of a minor act as his legal representatives if the child is under 14 years old.

The agreement contains the following information:

• FULL NAME. parents, children with passport data, dates of birth;
• Characteristics of the acquired property with generic characteristics;
• Type of ownership, size of shares;
• Documents underlying the transaction;
• Information about MK;
• Condition with redistribution of shares in case of birth of children in the future.

How to allocate shares in a mortgaged apartment?

The allocation of shares in a mortgaged apartment is carried out in accordance with legal requirements.

Step-by-step instruction

1. Once the mortgage loan is repaid, the encumbrance must be removed from the collateral. To do this, you should contact Rosreestr with the appropriate application and documents confirming the absence of mortgage debt. After reviewing the documents, the applicant will be presented with a new Extract from the Unified State Register of Real Estate with no encumbrance on housing.

2. After this, the apartment owner has the opportunity to allocate a share.
3. Drawing up a written agreement with a notary to transfer part of the property to the child or a gift agreement. Documents are prepared for both parents, for the Pension Fund, for Rosreestr.

   You will need to submit documents confirming the identities of the parties to the transaction, marriage certificates, birth certificates, an extract from the Unified State Register for real estate, and an agreement on granting housing rights to minors.

4. Submitting documents to Rosreestr for registration. An application for registration is submitted on behalf of each owner.

   It is required to provide a complete package of documents as a notary, and a completed agreement or gift deed.

The state duty for the service will be 2 thousand rubles .

Documents are submitted to the MFC. The registration period for the transaction is 10 days, then the owners receive a new statement containing information about the owners of the apartment (house) where the minors will be present.

When is a commitment to allot shares required?

The obligation to allocate shares is not required if the shares in the purchased housing were allocated before the disposal of maternity capital.

In other cases, the Pension Fund will refuse to pay MK until the rights of children to housing have been determined.

Young owners

RBC Real Estate talks about the intricacies of registering real estate for minors and the possibilities of selling it

Photo: Sergey Kulikov/Interpress/TASS

Children can be property owners regardless of age. Registration of housing for a child guarantees that by the time he reaches adulthood, he will be provided with his own living space and no family circumstances will reduce his rights.

However, there is often a need to sell or exchange real estate owned by a minor, and such transactions have many features. About what rights a child and his parents have to dispose of housing can be found in the RBC Real Estate cards.

Registration In what cases is a child made the owner of a home?

The most common reason why real estate is registered in the name of a minor child is the desire to provide him with his own housing in advance, which the parents will not be able to divide among themselves during a divorce. In this case, the apartment will not be considered joint property of the spouses. Housing is also registered in the name of a child if it is given to him or passed to him by will.

There are cases when adults register an apartment in the name of a child in order to protect property from the claims of creditors to whom the parents have unfulfilled financial obligations.

Children's rights Can children dispose of their property?

No, minor children cannot dispose of property on their own. Those under 14 years of age do not participate in transactions at all - their parents (or adoptive parents or guardians) act on their behalf. Children aged 14 to 18 years can make transactions with housing, but only with the written permission of their parents (or adoptive parents or guardians).

In both cases, transactions with housing registered in the name of a child can only be completed with the consent of the guardianship and trusteeship authorities.

At the same time, a minor may receive the right to independently manage real estate from the age of 16 if he is recognized by the guardianship authorities or the court as fully capable (for example, if he works, gets married, etc.).

Parents' rights Can parents dispose of their child's property?

Housing registered in the name of a child is exclusively his property; parents do not have ownership rights to it. Parents or other legal representatives of a minor cannot sell, exchange or donate real estate belonging to him or her solely of their own free will.

They also cannot rent out the child’s property, transfer it for free use or as collateral, divide the property, or allocate shares from it.

Everything requires the consent of the guardianship and trusteeship authorities - without this, no transactions that entail a decrease in the child’s property are possible.

Sale In what cases do guardianship authorities give permission for it?

Permission to sell an apartment registered in the name of a minor can be obtained upon a change of place of residence and in exceptional circumstances concerning the interests of the child (for example, in the case of payment for his treatment). But the solution to this issue, again, remains with the guardianship authorities.

Alternative What guardianship authorities pay attention to

The location of the housing is also taken into account by the guardianship authorities and may not give permission if the child is offered housing in the regions instead of a Moscow apartment.

Guardianship authorities will also pay attention to the price of housing. If the cost of the apartment offered to the child is less than the price of the living space he or she owns, then they can oblige the parents to transfer the difference to the minor’s bank account—he will have access to it when he reaches adulthood.

There is one more restriction: parents (adoptive parents or guardians) and their close relatives cannot buy the apartment from the child.

Share How to sell if a child owns part of the apartment

If a child owns a share in an apartment, then such housing can also be sold only with the permission of the guardianship authorities. They can give consent if the minor is provided with a share in another apartment, but this share must be no less and no cheaper than in the housing being sold.  

Sale of an apartment with a share of a minor child 2023

Selling a share in an apartment is always a difficult task, and if we are talking about selling part of the real estate that belongs to a child, then this task becomes much more complicated.

In addition to the mandatory notarization procedure, without which such transactions are in principle impossible, it is important to obtain the written consent of the guardianship authorities, whose employees may turn out to be too principled in such an important issue.

The fact is that parents and government officials authorized to protect the rights of minors often have different ideas about what it means to improve a child’s living conditions and respect for his rights.

In this article we will look at how to sell an apartment with a share of a minor child in 2023, what needs to be done for this and under what conditions the guardianship authorities will approve the transaction.

Content

The main difficulty that arises when selling housing that is in shared ownership is, first of all, the need to document (and physically) divide the shares. If there is no preliminary agreement, and there are several property owners, complications may arise in the seller’s relations with other owners, who may simply oppose any transactions.

Even if the distribution of shares is documented, it often happens that none of the home owners can say exactly where the boundaries of their legal space lie and where the territory of the other owner begins.

However, even after going through the procedure for allocating a share “in kind” (in this case, the owner can offer the buyer a specific premises that he could dispose of) , it is necessary to strictly comply with other legislative norms.

To understand the legislative framework, it is worth studying Articles 244-259 of the Civil Code.

In case of refusal, you must obtain written confirmation that the owners of other shares do not object to the conditions imposed and have no claims to the property. It is worth remembering that now all contracts related to shared ownership must be notarized.

How to sell a share if the other owners are against it

If the relationship is such that there is no chance of reaching an agreement, and no one is going to provide a written refusal, you need to draw up a letter proposing a deal and specifying all the conditions, including the cost and location of the real estate.

The document must be sent by letter (to the address of each co-owner of the apartment) and wait thirty days; if there is no response during this period, the owner has every right to sell his part.

The notification that the letter has been sent will serve as proof that the owner has made the required offer if the dissatisfied co-owners decide to go to court.

However, when selling a share to persons who are not co-owners, it is necessary to offer exactly the same conditions that were offered to the co-owners. If the conditions change, all owners must be notified again, since ignoring this rule may lead to litigation and ultimately invalidation of the contract.

Situations when the other owner is categorically against the sale of one of the shares are not so rare. However, in many cases it is possible to defend the right to realize one’s share in court.

Selling a child’s share: restrictive norms from guardianship authorities

If a minor is registered in the apartment and has a share in the property that needs to be sold, even more restrictions arise.

An adult decides for himself how he will live after the sale of his home, but a child, from the point of view of the law, cannot be left without a roof over his head, even with documentation.

This means that you can sell a child’s share of real estate only if he is registered and lives at a different address, that is, the share being sold is not the only home.

The sale of a child's property must be confirmed by the consent of the parents (or guardians) .

However, in any case, it is impossible to do without the permission of the guardianship services, so the procedure must begin by contacting the local guardianship authority with the appropriate petition. 

It is worth noting that transferring money to the child’s account is a last resort, and guardianship authorities do not always agree with this option.

Required documents and basic rule

When contacting the guardianship authorities for approval of the transaction, you must take with you the minor’s birth certificate, identification documents of parents or guardians, certificates of ownership of the housing being sold, as well as documents for the apartment. In addition, you will need information about a special account opened in the child’s name and checks confirming the receipt of funds into this account. The account must be designed in such a way that only the child himself can have access to the money after reaching adulthood.

There is an important rule: if a privatized apartment with a child’s share is sold, he must be allocated no less a share in the new living space. It happens that an apartment is not sold in order to buy a new home.

In this case, the child must be provided with a share in other real estate or an adequate amount of money in a personal account. Only if these requirements are met, the guardianship authorities have the right to give permission for the transaction.

The task of government agencies is to ensure that the interests of minors are respected and to prevent them from losing their only real estate, or their living conditions from deteriorating as a result of the transaction.

Coordination of the transaction with the guardianship authorities

Selling an apartment with the share of a minor without the participation of guardianship services means making an illegal transaction, which is very easily annulled in court. The best way to achieve what you want is a preliminary consultation with the guardianship authorities at the stage of intention to sell housing with the share of a minor.

It is important to understand in which case it will be possible to obtain permission from the guardianship authorities without problems. The most common mistake made is the decision to sell an apartment with a child’s share in order to then buy a room in his name.

If we are talking about a single home, the guardianship authorities will never approve such a deal, since a minor cannot live alone, and if you share a room for two, even with one of the parents, there will definitely not be enough square meters for the child.

In any case, difficult issues can be resolved individually, taking into account the current needs of the child and the financial prospects of the parents.

Most common reasons for denial of approval

If the guardianship service categorically refuses to give permission to sell the child’s share, the transaction, even if it takes place, will definitely be illegal. Parents who are planning such transactions should be aware of the most common cases of refusal:

• Firstly, the guardianship authority will not approve of a situation where the previous home is sold in full, and the new one is purchased in installments, and the child’s share in it cannot yet be allocated. It happens that parents decide to sell their home with their children's share for a down payment on the purchase of a home in a house under construction using a mortgage. If there is no amount on the child’s personal account equal to the value of his share, for the guardianship authority this situation is the deprivation of the child’s home, albeit temporary.
• Secondly, even if the new housing is larger in area than the old one, and the child’s share in area increases, the guardianship authority will refuse if the acquired property has fewer amenities than the previous one (for example, a large private house without running water and sewerage) . The same applies to the situation if the existing social infrastructure is not suitable for the full development of the child, for example, there is no school, kindergarten or children's clinic.

In other words, the standard of living of a minor after the sale of an apartment with his share can only be improved; changing the child’s living conditions for the worse is unacceptable.

The decision of the guardianship authorities can be appealed in court

• If there is a strong conviction that the refusal is unlawful, you can appeal the actions of the guardianship authorities in court, be sure to obtain legal support, since such litigation is not simple and straightforward. In addition to the package of documents, the following arguments can be used as evidence of improving the child’s life, first in the guardianship authorities, and then, if necessary, in the judicial authorities (of course, if they are justified) :
• • improvement of the environmental situation or climatic conditions;
• • parents getting better paid jobs and improving the standard of living of the whole family;
• • documented prospects for infrastructure development in the near future.
• The guardianship authorities have a period specified by law for consideration - two weeks from the moment they receive an application from the parents, accompanied by a full package of documents. 

The permit, which is issued in person, must certainly indicate the full address at which the previous housing is located, and the address of the new apartment or other grounds for a positive decision. This document will also serve as the basis for deregistering the minor.

Notarization: a prerequisite

Any real estate transactions, if a minor is involved in them, must be certified by a notary.

To certify the contract, it is necessary for both parents to be present at the notary, but if this is unrealistic due to the fact that one of them does not consent to the transaction, moved very far after the divorce, and his whereabouts are unknown, the appropriate permission can be obtained through the court.

If the second parent has died, you must remember to bring the death certificate to the notary. When one of the parents is abroad, he can certify the permit at the Russian consulate and send it to his spouse .

After the contract has been certified by a notary and a certificate of acceptance and transfer of real estate has been received (in the same office), it is necessary to complete the formalities at Rosreestr and register the child at the new place of residence. Upon completion of all activities, it is important not to forget to provide copies of the agreements to the guardianship authorities so that they record the fact of full replacement of the minor’s previous property.

Conclusion

The sale of an apartment with a “children's share” should begin with a visit to the guardianship authorities and end with a visit to the same service.

There is no point in looking for workarounds, since, as practice shows, finding a way out of legally difficult situations is much easier than later dealing with the consequences of an illegal transaction.

Considering the fact that this type of transaction cannot be called simple, the best solution would be to involve a professional lawyer.

Child-owner: if guardianship does not allow...

According to the law, children from 14 to 18 years old can make transactions only with the consent of their legal representatives (parents), and children under 14 years old cannot make transactions themselves at all - their parents act for them, with the exception of cases specifically listed in the law (Article 26, Article 28 of the Civil Code of the Russian Federation). At the same time, parents do not have the right, without the prior permission of the guardianship and trusteeship authority, to make transactions (or give consent to their completion), if as a result of this the child’s property is alienated or otherwise reduced or the child renounces his rights (Clause 2 of Article 37 of the Civil Code of the Russian Federation , Part 2 Article 20 and Part 1 Article 21 of the Federal Law of April 24, 2008 No. 48-FZ “On Guardianship and Trusteeship”).

The guardianship and trusteeship authorities, checking the legality of the transaction for the alienation of real estate, establish whether it corresponds to the interests of the minor and whether the living conditions of the minor are worsened if he is not the owner of the alienated residential premises, or whether his property is reduced if the minor is the owner apartments.

Permission to carry out a transaction must be expressed clearly and unambiguously; it must contain an indication of what kind of transaction (purchase and sale, exchange, pledge, etc.) and under what conditions it is permitted to conclude. But the main criterion in this case is that such conditions should not in any way diminish the property rights or infringe on the legitimate interests of the minor.

At the same time, the Constitutional Court, in its ruling of March 6, 2003 No. 119-O, came to the conclusion that from the content of paragraph. 2 p. 1 art. 28 etc. 2-3 tbsp.

37 of the Civil Code of the Russian Federation does not entail the right of guardianship and trusteeship authorities to arbitrarily prohibit transactions for the alienation of property of minor children made by their parents; on the contrary, in accordance with the general principles of law and the requirements of Art. 2, art. 17 and art.

 38 of the Constitution of the Russian Federation, decisions of guardianship and trusteeship authorities - in the event of their appeal in court - are subject to assessment based on the specific circumstances of the case.

For example, judicial practice proceeds from the fact that to withdraw funds from an account opened in the name of a child, permission can be issued to the guardian not only for a one-time act, but also, for example, for the disposal of funds unlimited in the number of withdrawals and the amount of funds until a child of a certain age (usually up to 16 years old, when he can do this himself) (see, for example, the decision of the Novozybkovsky City Court of the Bryansk Region dated March 4, 2011). A person who is not the legal representative, guardian or custodian of a child cannot be given permission from guardianship to dispose of the minor’s money: for example, in one of the cases, the grandfather opened a deposit in the name of his grandson, but after some time he changed his mind and decided to take the money, but neither the guardianship authority, neither the court could satisfy his desire (decision of the Khimki City Court of the Moscow Region dated July 18, 2012).

The objections of the second parent regarding the transaction are not an unconditional basis for the refusal of the guardianship authority - it is checked to what extent the transaction corresponds to the interests of the child, and not the parents (one of them).

Thus, according to the procedure approved by the municipal act, both parents had to apply to the guardianship authority to obtain permission, including in the event of divorce between them; a statement from one parent could only be accepted from a single mother or if the second parent was declared missing. However, the court found this provision to be inconsistent with the law, since it limits the rights of parents - after all, federal legislation does not provide for the mandatory agreement by parents regarding the property rights of their child (see, for example, the decision of the Khanty-Mansiysk District Court of the Khanty-Mansiysk Autonomous Okrug - Ugra dated May 17 2011 in case No. 2-1249/11).

Moreover, if the disagreement of the second parent is motivated by objective reasons - that is, that the transaction is contrary to the interests of the child, and this is confirmed as a result of an inspection carried out by the guardianship authority - then the court recognizes the refusal of the guardianship authority to give consent to the transaction as lawful.

So, in one of the trials, a case was considered where the mother, father and child each had 1/3 shares in the apartment. The mother sold her share to a stranger and then asked the guardian for permission to sell the share and the child, but the father objected.

After selling her share, the mother did not purchase any housing in return, continued to live with her child in someone else’s living space in the apartment of her new husband, and with the proceeds from the sale of the child’s share she planned to purchase an apartment in another city for rent, and not to improve the child’s living conditions.

The guardianship authority, naturally, refused to issue a permit for the sale, and the Zelenogradsky District Court of Moscow supported it.

In another case, the mother asked for the consent of the guardianship authority to sell an apartment belonging to her daughter, since they lived elsewhere in a private house and she did not have the funds to maintain this apartment; she planned to spend the money from the sale on her needs and the needs of her children, and not to purchase a home for my daughter. Naturally, the court recognized the refusal of guardianship as lawful (see the decision of the Tashtagol City Court of the Kemerovo Region dated October 22, 2010 in case No. 2-855/10).

How to allocate a share to children in an apartment, agreement template, algorithm of actions

How to allocate a share to children in an apartment - such a simple task sometimes requires large financial costs to pay for notary services.
A mandatory notarial transaction formalizes the allocation of shares only from the common shared property.
The allocation of shares from individual and common joint property is formalized in simple written form.

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

How to allocate a share to children in an apartment

Have you taken on a notarial obligation to allocate a share to your children in the apartment and don’t know how to do it?

 Article updated 01/16/2022

A notarial obligation may contain:

• allotment of shares to all family members or
• only children.
  Due to this circumstance, the algorithm for transactions for the allocation of shares varies.

It is worth distinguishing:

• Obligation to allocate shares in property rights to children, in accordance with the requirements of the Guardianship and Trusteeship authorities
• The obligation to allocate shares in the right of common shared ownership to all family members, when applying for payment of the Certificate “Maternity (family) capital,
• An obligation to allocate shares in the right of common shared ownership to participants in the “Young Family” program or other budgetary funds to support the family.

Are allocating shares and allocating shares the same thing?

Conferring shares is a broader concept; it does not imply the use of any special form of document. The main thing is that the children or all family members have their property rights registered.

That is, you can allocate shares in property rights:

Allotment of shares to children

If this apartment was purchased in a legal marriage, but the sole ownership of one of the spouses is registered, then a notarial consent for the donation will be required from the other.
Read more: Gift agreement for a minor

However, from 01/02/2017, the transfer of rights to the Donees will be registered without the consent of the other spouse, but the registrar will make an entry about this in the Unified State Register of Real Estate.
What can interfere with the subsequent sale of real estate, because this data will end up in the Extract from the Unified State Register and is unlikely to please your buyers.

• The allocation of shares to children in an apartment/residential premises/house with two owners occurs in a notarial form with common shared ownership.

How to sell and how to buy an apartment with a child's share

In the monthly Blitz-CriK column, our readers have already several times raised the topic of unfair decisions of guardianship authorities that prevent the purchase or sale of housing where the owners are minors.

RealEstate.ru decided to find out from experienced realtors how to prepare for these transactions in such a way as to protect yourself as much as possible from the risks of delaying the process or from a ban on transactions by the guardianship authorities.

In the monthly Blitz-CriK column, our readers have already several times raised the topic of unfair decisions of guardianship authorities (here and here) that prevent the purchase or sale of housing where the owners are minors. RealEstate.

ru I decided to find out from experienced realtors how to prepare for these transactions in such a way as to protect yourself as much as possible from the risks of delaying the process or from a ban on transactions by the guardianship authorities.

A survey of companies operating in the Moscow real estate market revealed that such transactions have three problems:

• — delaying the approval process for an indefinite period; — a high risk that the transaction will not be approved by the guardianship authorities;
• — the possibility of officials making arbitrary and often overly reinsurance decisions due to “holes” in the legislation.

Time and documents

“As a rule, in a transaction with the participation of guardianship authorities, the list of documents is wider than in a simple transaction. Such transactions require a mandatory assessment of both real estate objects (sold and purchased).

All this leads to the fact that the timing of the transaction increases.

We cannot exclude the possibility of refusal by the guardianship authorities if their requirements are not met,” says Inna Ignatkina , director of the branch of the company “MIC-Real Estate” on Presnya.”

Participants in the real estate market complain that there are no time regulations for the guardianship authorities , within what time they must give an answer as to whether the transaction is allowed.

Applicants must provide guardianship with all the documents required for a purchase and sale transaction for the apartment being sold and all documents for the apartment being purchased. Documents confirming that the sellers have no tax debts are also required.

  In addition, the guardianship authorities are now also checking the cadastral value of objects and the market value of apartments. In some cases, they use data from advertisements posted in real estate databases.

Guardianship officials may also ask applicants to provide information about similar apartments from the database in graphical form.

Are there discounts for apartments with children's shares?

A number of difficulties that accompany transactions with apartments where there are minor children do not mean at all that these apartments are sold cheaper.

According to all the realtors surveyed, today there is no discount on the secondary housing market due to agreement with the guardianship authorities. Rather, in their opinion, we should talk not about a discount, but about increased exposure periods.

But if buyers like this particular apartment, then they are willing to wait an extra three to four weeks.

Should I agree to buy an apartment from my children?

Victor Kupriyanov , a private realtor, advises making such a purchase only if the sellers of an apartment with a child’s share already have the address of an alternative apartment for which a package of documents has been collected, ready for submission to guardianship. Most likely, in this case, the buyer’s realtor will tell the seller: “There is interest, but we will make an advance when you have an alternative address.” And he will continue to look for another option for his client.

Failure deals

Guardianship may refuse if it considers that the child will live in worse conditions than before - most often this means a reduction in space. They often refuse to move to another city, or even more so to a village, considering this to be a deterioration in living conditions. There are also controversial cases.

For example, moving from a separate apartment to a room in a communal apartment may or may not be considered a deterioration. Refusal may follow if the transaction violates any provisions of the Family or Civil Code.

In particular, any transactions for compensation, except for transactions of gift, between a parent and a child are prohibited.

Friendship between realtors and guardianship authorities: good or evil?

In essence, the delays associated with coordination with the guardianship authorities are quite predictable and realtors have learned to deal with them well.

Firstly, they try to first consult with the guardianship authorities whether they will give permission for such a transaction before collecting a package of documents.

It should be noted that parents or guardians, having decided to make a certain change in the housing issue, can also visit the guardianship authorities in order to figure out in advance what they will be allowed and what will not. Secondly, no one canceled the “friendship” with representatives of government agencies.

And thirdly, if the guardianship authorities refuse unreasonably, then you can go to court .

The interviewed respondents did not remember such cases, but lawyers argue that it is possible to challenge the decision, the main thing is that it is received in writing. This path is long and does not guarantee success.

The courts try not to conflict with government agencies, so it is not surprising that none of the market participants recalled cases of successful proceedings.

If at the consultation level it becomes clear that your guardianship authorities take an uncompromising position, then you can decide on a workaround - submit an application to another guardianship authority.

To do this, the child must be re-registered (registered) in another area.

A similar case from life was told by Viktor Kupriyanov, but to fully understand it, a short story about such a phenomenon as maternity capital is required.

Bomb with maternal capital

The so-called maternity capital is actually family capital (and this is its second name). Let us remember that this is money that the state pays to families in which a second child was born or adopted. In 2014, the amount of maternity capital was about 430 thousand rubles.

According to the law, shares in an apartment purchased with state funds must be allocated to all family members. However, in practice everything happens in two stages.

After the allocation of capital by the Pension Fund, the purchase of housing is registered in the name of the recipient of the capital, and then the second stage follows - the allocation of shares to all family members, including the husband.

Guardianship authorities also cannot interfere, since they protect the rights of children when they have already become owners. At the same time, it is possible to sell an apartment purchased using maternal capital, but in which children are not vested with property, since Rosreestr does not check this aspect of the property when registering a sale transaction.

As a result, it happened that no one in the real estate market makes sure that parents give their children a share in the apartment purchased with the help of maternal capital, professionals state.

Therefore, the danger for buyers of an apartment from a family that once purchased it using maternal capital is such that grown children can sue, claiming that their rights were violated, and the transaction should be declared void.

The “hole” in the law was noticed more than two years ago, but so far nothing has been done to “close” it.

Case study: Giving cannot be bestowed

Commas in this sentence are placed according to the decision of a specific inspector of the guardianship authorities and this is an example from the practice of a realtor.

In 2012, one family bought an apartment using maternal capital. In 2013, my parents decided to change it to a more spacious one and turned to realtors for this. It turned out that the children were not given an interest in the property, and the clients initially wanted to sell the home “as is.” Theoretically it was possible.

“The original idea of ​​the deal was that the apartment, purchased using maternal capital, would be sold by the mother, who was its only owner and did not have time to transfer the shares to the children,” says Viktor Kupriyanov. — It was planned to allocate shares to the children in another apartment, the owner of which was the father. It should be noted that they were registered there.

But the address of the second apartment, of course, was different from the address in the Pension Fund’s obligation.” It turned out that with such a scheme, parents could be caught in the misuse of public funds (a serious violation!), and future owners could face problems with the violated rights of minors. “As a result, it was decided to give the children shares in the mother’s apartment.

This was done, and after successfully registering the rights of the children in the apartment and their registration in it, I contacted the guardianship authorities in the area where the children had property. I wanted to get permission to give the children shares in their father’s apartment, so that I could now officially free the apartment with maternal capital from these shares and sell it,” explains the realtor.

    But the agent was refused, explaining that “transactions between the guardian and the ward are illegal on the basis of clause 3 of Art. 37 of the Civil Code of the Russian Federation." “For some reason, the guardianship staff “divided” the whole process into parts: since the children’s shares are sold, they must buy corresponding other shares. You cannot buy shares in your father’s apartment - this would be a violation of the law; the father cannot sell anything to his children.

And employees consider the donation of a share by a father to his children as a voluntary act, which cannot be associated with the sale of other property,” Victor shares the guardianship inspector’s train of thought. According to an employee of those guardianship authorities, the transaction will be legal only in one single case: in exchange for the sold shares, the children are bought shares in another apartment that does not belong to the parents.

“I and my clients could not be satisfied with this option in any way - other objects are not needed, and the problem remained the same, only the address changed,” states the realtor. He also states a serious problem arising from the wording of the law. The law on maternity capital says the word “endow”, not “endow”.

“Such a concept is not provided for in the Civil Code at all. This ultimately leads to the fact that the interpretations of territorial guardianship authorities remain at their discretion,” he explains. However, a happy ending to this deal was possible. Victor’s colleagues advised him to contact the guardianship authority in the area where his father’s apartment was located.

“Luckily for us, guardianship officials in the area where the apartment of the father of the minor owners was located gave a positive response to the proposed conditions for the sale of the children’s shares,” explains Victor.

Guardianship officials in this area did not consider parents as “guardians” and minor owners as “guardians” because there was no procedure for “establishing guardianship.” In the statement, however, it was necessary to look for such wording for all transfers of law so as not to fall under the concept of “transaction”. “We successfully completed all operations.

And I’m glad that there are civil servants who truly protect the interests of citizens,” says Victor.

New buildings to offer

Traditionally, guardianship authorities carefully study the apartment that is supposed to be purchased to replace the one being sold.

And previously, coming to them with a draft transaction where an old apartment was sold and an apartment in a new building was bought without ownership rights was pointless - the refusal followed immediately.

At the beginning of 2014, it became known that the guardianship authorities in Moscow, on an experimental basis, agreed on several transactions for the exchange of a “secondary” apartment for a new building (the house is ready, an acceptance certificate has been received, but a certificate of ownership has not yet been received).

“Yes, indeed, such transactions take place. A list of documents from the developer, an application and other papers are provided. The guardianship authorities issue an order for permission to sell the apartment with the subsequent allocation of property to the child,” explained Svetlana Birina , head of the city real estate department of NDV-Real Estate.

Inna Ignatkina says that for such a transaction, certain conditions must be met: a new building must be built, and the child must be registered at a third address (not in the sold apartment or in the new building) until moving to a new apartment. “The decision to conduct such a transaction is made by the guardianship and trusteeship authorities based on their own criteria, so before planning such a transaction, it is worth familiarizing yourself with the position of a particular inspector on this issue in advance,” she adds. As an example, she cites a deal that was “closed” by their agency in March of this year. A three-room apartment in Moscow was sold and a four-room apartment in Kommunarka was purchased. Approval for the deal was received when the new building was ready. The child will become the owner of a share in the new apartment as soon as ownership rights to it are registered. Realtors note that so far such transactions are isolated. But they give hope that such an opportunity will revive the real estate market. Many families with children would like to move to a new building, but they can only buy it when it has already become a “secondary building” and the ownership rights have been registered. In this case, it is already 10-20% more expensive than housing in a house that has already been completed, but without formalized ownership rights.

Valentina Serova