How to make the ownership of an apartment across the court

16.01.2011 13:25
Recently, more and more buyers of new buildings, waiting for the completion of the homes can not issue ownership.

Recently, more and more buyers of new buildings, waiting for the completion of the homes can not issue ownership. Circumstances may be very different: no sign of a party acts of the investment contract or the record of distribution of apartments, some financial problems of companies or expanded investment project, extending its action immediately on dozens of construction projects. Lawyer Oleg Sukhov, a leading lawyer of "The First Metropolitan Legal Center told how to make the ownership of the apartment (office) in a newly built house, if the company is the developer and the administration does not transmit the documents for registration in the normal way through the registration service?

Related article: How to legalize alterations to the apartment?

If the object is built

To go to court and meet the stated requirements, it is desirable to have a response to the developer, investor, or, at worst, local administrations refusal of registration of title to the purchased property, or the inability of such registration for any reason.

Mandatory condition to go to court are:

- Concluding contracts (investment, co-investment, concession rights, collaboration, equity participation in investment construction, investment deposits, the preliminary agreement, etc.);

- Vouchers for payment of these contracts;

- The act of receiving the transfer of real estate investor (in case of ownership of the finished construction of an object);

- Plan BTI (in case of ownership of the finished construction site);

- Investment contract, the decision of local authorities, the documents on land claimed by request of the court.

It should be remembered that, based on jurisprudence and civil law the applicant may request the court recognized the right of property only for a specific property. When addressing the court will have to pay the state fee, the amount of which can make the amount up to 60 000 rubles.

Requirements to the court for recognition of property rights should clearly describe the property in accordance with data obtained from TIB, otherwise the registration office will refuse the registration of property rights. As part of the trial court must provide a message of Rossreestra the absence of the registered rights to the property that you are applying for. By trial involved all the participants of the project, as well as the person claiming to be inferior or controversial subject.

Just a judicial inquiries claimed all the legal documentation on the construction site. After the entry into force of the court, should contact the General Directorate of Federal Registration Service of the federation subject documents BTI (cadastral identification and explication).

Unfinished Object

In contrast to the completed construction of the property when filing documents in the registration service for registration of ownership of the plan BTI will not be provided, as there will be no act of receiving a specific transmission facilities. In this case, applicants should remember that the more accurate it will be written decision of the court and what will clearly specify the object under construction, the easier it will register the property at the Fed.

From a literal interpretation of Art. 25 of the registration that:

1. When you register the right to object under construction is the object of all construction in progress and not part of it.

2. Registration of the right to object under construction is made, if necessary, a transaction with such an object, ie subject of the transaction will be the entire object under construction, and not part of it.

3. Plot of land allocated for the creation of the property.

Based on the above leads to the conclusion that the general rule is to record the right to object under construction in general (Article 25 of the Law on registration). However, the object registration forms and technical organizations and cadastre, and the establishment of Justice records law when there are legal grounds. Therefore, in the case of providing claimant entitlement to a part of the facility under construction with the mandatory application plot plan, certified by the authority responsible for the conduct of cadastral works, and plan for the property certified by a body of real estate inventory (Art. 17, 18 of the Law on registration), registration rights specified in these documents the object under construction is possible.

Current legislation allows for registration of rights to object under construction, regardless of the destination object under construction. On the question of whether a state registration of the transaction and transfer of rights or just jump right, you should respond, given that the residential building, whose construction is not completed, not a living space, as can not be used for this purpose. Consequently, the registration shall be subject only to transfer ownership, and not contract of sale of such an object.

As the jurisprudence shows in Moscow, for example, the courts prefer recognition of property rights to share in the investment contract in the form of certain premises which was stated in the contract with the share participant (investor, etc.), under which construction was started home. Recognition of title to such property as the partially constructed object - a practice more negative. In the Moscow region and other regions of Russia there are many, and this good practice.

Despite the fact that judicial precedents on the recognition of the right to share in the Investment Project are close to the origins, the practice is increasingly gaining its positive momentum. It is worth noting that the ownership of such court decisions can not register, but they allow you to withdraw the right to their property from the estate (sale by auction to a third party) in case of bankruptcy of the builder.

Lawyer Oleg Sukhov, a leading lawyer of the First Metropolitan Law Center "
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