One of the most popular investment methodsin the real estate market - reassignment of an apartment in a new building. Not everyone understands this, and often a newcomer simply does not want to get involved with it. According to statistics, almost a fifth of all houses under construction is sold under this scheme. What are the main advantages and disadvantages of these deals? What is the risk to the buyer?
Transfer of an apartment in a new building: what is it?
Assignment is a contract for the transfer of rights toobtaining real estate to a third party. The transaction is possible until the time of the state commission, when the title documents for the premises in the residential building do not yet exist. An investor who has purchased a new home from a construction company transfers his property rights to another individual for a fee. Typically, the investor receives from the transaction from 10 to 90% of the profits from the money invested in the new building. Obligations and rights to the developer are also transferred to the new participant in shared construction.
Transfer of ownership of an apartment in a new building can be done in two ways:
- According to the contract of DM (the seller repays the debt to the developer and the buyer’s funds, the transaction may be conducted several times with one property)
- Under the preliminary contract (not subject to mandatory state registration, it establishes the right of the seller and buyer to conduct the transaction in the future).
Payment of funds occurs by agreement of the parties.
How to sell an apartment in a new assignment: stages
The assignment contract goes through four stages of execution:
1. The developer’s documentation is checked:
- company charter;
- memorandum of association;
- certificates of state registration and accounting in the FTS;
- permits for construction;
- project declaration;
- Proof of funding.
2.The seller announces the intention to sell the property to the developer, after which he must obtain consent from him in writing, as well as documents confirming the absence of financial obligations to the firm. It is also required to obtain notarial consent from the spouse for the sale of real estate, permission from a credit institution (if the housing was purchased by mortgage), an extract from the registry for living space. The buyer must obtain the notarial consent of the spouse and take a mortgage in the bank and a contract for the provision of a housing loan (with a mortgage).
3. The contract of cession is made. You can make it at the developer, real estate office or a lawyer.
4. There is a state registration of the contract of assignment in the division of the Federal Registration Service.
Is it possible to transfer by mortgage
Current Russian legislation statesthat the transfer and mortgage of an apartment in a new building are possible. To do this, the seller needs to obtain a written consent of the credit institution, since it transfers its monetary obligations to the buyer in full. Thus, the buyer undertakes to fulfill all the conditions of the loan agreement. At this stage, it is necessary to carefully study the housing loan agreement, since the bank has the right to make changes at its discretion.
Taxes
Согласно Налоговому Кодексу, после того, как there was a transfer of the apartment in the new building, a tax of 13% must be paid by the seller. The deduction is made from the amount of profit - the difference between the money and the initial cost of housing. To do this, the seller submits a 3NDFL declaration to the tax inspectorate.
For example, if an apartment is purchased for 1,000,000 and sold under a transfer agreement for 2,000,000, the amount of the tax deduction will be 130,000.
If the buyer wants to receive a tax deduction for the purchase of real estate, he must request from the seller a receipt for tax payment.
pros
Both the seller and the buyer benefit after the assignment of an apartment in a new building is made. What is this benefit?
The seller makes a profit from the sale. At the same time, its size may be several times larger than the initially invested amount.
Advantages for the buyer:
- Low cost compared to finished housing.
- The possibility of individual planning.
- Acquired legally clean apartment.
Minuses
Despite the fact that the transfer of rights to the apartmentin the new building - one of the most popular transactions in the real estate market, it still remains a risky business. Among the main risks are:
- Bankruptcy of a construction company.
- Cancellation of the cession agreement.
- Dual sales.
- The seller does not notify about the transfer of the developer.
Now we will sort these moments in more detail.
Bankruptcy construction company
In the period counted from the momentstate registration of the pre-payment unit, and before signing the act of transferring the house into operation, the interest holder has the right to transfer its rights to real estate. The main reason for the assignment is a violation of the quality standards by the developer and repeated postponement of construction terms. Typically, such circumstances are due to the emerging bankruptcy of the developer.
После того, как первоначальный дольщик передаст housing rights in the new building, the responsibility to the new participant of the DDU will be borne exclusively by the developer. If the developer violates the DDU and does not fulfill the obligations imposed on it, the termination of the contract of assignment is impossible. The new shareholder will be facing litigation directly with the developer.
The initial construction participant may carryresponsibility for the actions of the developer under the contract, only when he accepts the guarantee. Transactions with the guarantee are extremely rare.
Cancellation of a cession agreement
Assignment when buying an apartment in a new building is notshould contradict the norms of the current legislation and the agreement on participation in shared construction. The cession agreement may be considered void in the following situations:
- The initial shareholder did not fulfill monetary obligations to the developer and the bank.
- No written consent was received from the construction company.
- No written permission was received from the bank if the housing was purchased with the involvement of credit funds.
In the presence of at least one of the abovepoints cession agreement is invalid. According to article 390 of the Civil Code, the responsibility for concluding an invalid contract falls entirely on the original participant in the DDI. He is obliged to pay in full the money transferred to him, as well as to pay interest and reimburse the losses incurred by a defrauded shareholder.
Double sale
В 2011 году было принято постановление, согласно which all DDU are subject to mandatory state registration. Unfortunately, Russian legislation in the field of shared construction is far from perfect. In particular, the risk of double sales in the transfer of apartments in houses under construction is not excluded.
In practice, there are often cases whereunscrupulous sellers entered into a contract of assignment with several buyers at the same time. This happens because preliminary sales contracts are being concluded, registration of which in the Federal Registration Service is not a prerequisite. The right of ownership is recognized in court by the assignee who first entered into an agreement with the seller. Transfer money to the seller should only after the state registration of the DDU.
The seller did not notify the developer
The seller must receive from the developerwritten consent to the sale of the apartment. Otherwise, the new interest holder will incur losses associated with this risk, including the inability to recover damages from the developer until the DDU is canceled.
For example, if a new interest holder in a court of law wants to recover from a construction company a penalty for late delivery of the object into operation, he will be denied.
Contesting a contract in court
By court decision, individuals and legal entitiesmay be declared insolvent, or bankrupt. In this case, all transactions relating to the issue of the purchase and purchase of real estate are deemed void in two cases:
- When the contract of sale indicates a deliberately low price.
- The transaction took place less than 12 months before the bankruptcy proceedings.
In judicial practice, there are cases when one andThe same premise is sold under the cession agreement several times. Subsequently, a new construction participant pays for the acquired property. The initial shareholder starts the bankruptcy process, and the transaction is declared invalid. Thus, the new shareholder remains not only without the cherished living space, but also without the money spent on an apartment.
Unified Transfer Center
In St. Petersburg and Leningrad regionThere is a specialized agency - the Uniform Center of Assignment. Apartments in the new building are more attractive to potential buyers than secondary residences. Moreover, assignment is a rather complicated and time-consuming process, requiring a clear knowledge of legislative norms.
Specialists of the Center have extensive experience in transactions under cession agreements. The agency also has its own database of verified properties, which practically guarantees the legal purity of transactions.
One of the most risky, but the most accessible typereal estate acquisition - reassignment of an apartment in a new building. What is this deal? By assignment is the transfer of the right to register property from a participant in shared construction to a third party. This type of transaction has undeniable advantages, but also many significant drawbacks. To avoid problems with real estate in the future, you should entrust the support of transactions to qualified lawyers. In Russia, there is only one specialized agency dealing with such matters - the Unified Transfer Center.
