Buyer`s apartment on the secondary real estate market is waiting for no less pitfalls than the market buildings. Not for nothing that the word "risk" comes from the Italian "risk", which means "rock." Apparently, the Italian merchants, despite the experience and skill of their masters, often flown on the hidden underwater rocks.
Recently, I as a lawyer had a chance encounter with a fraudulent scheme in the sale of apartments on the secondary market. Feature of this scheme was that it was calculated for seven moves ahead, and every action of fraud was based on good knowledge of current civil legislation of Russia. Here is how could take place this masterfully thought out, but unfulfilled criminal transaction.
Late last year, one young woman after her divorce from her husband decided to buy a separate apartment. Benefit by the time she had a savings of $ 1.9 million rubles. She even managed to find this amount cozy "kopeck piece" in Noginsk. It must be said that a similar apartment cost in the region of at least 2.1 million rubles. However, it is not alarmed potential shopper, but, instead, caused her keen intention to acquire this particular apartment. There was even a signed contract with the agency and paid him a small sum for his services.
On the history of desired apartments were presented copies of the documents. We list them in chronological order (from past to present), with comments. Okay, these are:
• a copy of a very long time drafting a document on the privatization of apartments;
• a copy of the certificate of ownership of a new sample (green) in the name of a citizen Ivanov;
• a marriage certificate, according to which Ivanov during the privatization process was married to his wife, Ivanova;
• concluded four years ago, a contract of sale of the apartment with a citizen of Petrov and seven years of a child Petrova (at buyers shares were equal);
• a copy of general power of attorney with the right to sign the contract of sale, registration of the transaction and the right to receive money for an apartment, issued in the name of Ivanova - she sold the apartment on behalf of her husband. Mrs Petrov was involved in the transaction as a representative of a minor, the buyer, that is, his seven sons Petrova, Jr.;
• copies of marriage certificates Petrovs spouses and birth certificates Petrova, Jr.;
• registered a year ago, deed of gift a citizen of his Petrov 1 / 2 shares to the apartment to his son, a minor. Mrs Petrov signed even if this symbolic act of giving her own husband as the representative of the child Petrova, Jr. 1 / 2 share in the ownership of the apartment;
• signed permission of the local Noginskiy guardianship authority to sell the apartment Parents of young children, spouses Petrov.
From the words of potential women customers, realtor convinced her that the apartment is purchased by retailers for more than three years ago that three years later, no risk and can not be and that there is a resolution of the guardianship to the deal, so the contract for the sale of this "kopeck piece" in Noginsk easily pass the state registration.
And now attention. For me personally, there are strict conditions for the purchase, repeatedly confirmed stories "thrown" Buyers of apartments, luxury cars, as well as shares and shares in the company`s charter capital: "Never, nowhere, no one under any circumstances do not buy from the seller`s attorney" .
One might ask: "And what have the authority, it`s been more than three years from the date of the sale of the facility, and the apartment has been privatized in a marriage? Why then do need a lawyer? "However, I believe that it is the simplification of the complex can be designed to mask the deception, but particularly large.
In the scam, as in chess, the idea is important debut. In this case Noginsk flat debut idea is that the owner has the right to reclaim their property from a bona fide purchaser by requiring vindication of the claim if the assets are departures from his possession against his will, with this limitation does not apply to the owner.
Another couple of legal nuances in support of their debut ideas. Privatized in marriage flat is not jointly acquired property, and is the property of the person who it is privatized, that is, Ivanov. To file a vindication of the claim (for the recovery of property from a bona fide purchaser) Ivanov does not necessarily have a certificate of property on hand, enough to declare their ownership of the apartment.
Now imagine that unfolded would have happened if Petrov had sold the apartment.
1. A girl buys a one bedroom apartment in Noginsk in Petrova, Jr., with the consent of the guardianship. Property right girl is registered, the money paid to spouses Petrov.
2. Further, at any time, Ivanov, filed suit in Noginsk City Court of Moscow Region on the recognition of its ownership of the apartment. In the lawsuit, he said that at the time of the sale of his apartment, he told his wife Ivanova that the power of attorney revoked, and she sold the apartment without his knowledge and against his, Ivanov will. Quite possibly, the court gets to claim Ivanov sympathy and kindly listens to the plaintiff`s attorney Ivanov: the statute of limitations on the application of the defendant can not be applied.
3. To participate in the draw spouse Ivanov, and that the plaintiff in unison Ivanov said that, yes, power of attorney was revoked Ivanov, as Ivanov put it into prominence before the transaction, that a year before they deal with Ivanov began to live separately, but it is extremely needed money for treatment (nutrition, to repay a debt, etc.). It is even possible in the case on the plaintiff`s petition will be a written notice Ivanov address of his wife to revoke a power of attorney signed by Ivanova in receipt of a notice, or even notice Ivanov to cancel a power of attorney to the notary, who decorated it.
Defending a thesis in court "involuntarily", Ivanov will be sufficient to prove that the transaction day, he did not know about it, the deal never approved. All last years Ivanov lived with relatives in the village (it was on a business trip, in prison, a common-law wife in Sterlitamak and other options) and now suddenly discovered that his apartment was sold against his will to strangers, but he no penny is not even handed .
4. Spouses Petrovs court also attracts the participation in the proceedings as third parties, but they do not go to court.
5. The court shall grant a claim for the recovery of Ivanov`s apartment at the end a bona fide purchaser.
6. Having court of cassation and deprived apartment shopper gets the right requirements for spouses Petrov.
7. The customer accesses Petrov for compensation paid in the transaction, but the prospects of business for her disappointing. Not for nothing because semeika Petrovs has issued 100% ownership of an apartment on the Petrov-Jr.
According to Clause 3, Article. 28 of the Civil Code, property liability for transactions are minor, his parents, unless they prove that the obligation has been violated is not their fault. To prove his innocence spouses Petrov in the cellar: the deal between Bush and Petrov shopper is framed and executed perfectly legal!
It is also possible that there will be a decision in favor of women customers yet because at the time of submission of its claim for Petrov, it turns out that the whole family went to an unknown destination and to establish their place of residence is not possible (options: moved to a permanent residence in the warmer climes - to the sea in Crimea, in Israel, etc.).
That is a possible endgame party, conceived by dishonest people. But if on a chessboard has strict rules and all the figures are before the eyes, something in life version of the fraud to be more likely to occur, so the client needs to trust his legal adviser, taking the decision on refusal of a very profitable at first glance the deal.
Of buying an apartment in Noginsk girl refused. It considered and adopted the proposed me another option for the same price: one-bedroom apartment of 50 square meters. m in the five-story house on an individual project in the village of Novorizhskoe highway on the lake shore with forest and field. Apart from the incomparable Noginsk ecology and the motorway, the village has a railway station 300 meters from the buildings. In the same house, knowing from the inside position of the builder as a corporate lawyer`s firm, the author of these lines, too, bought an apartment with the intention to use the mother`s capital, but more on that in a future article.