According to realtors, afraid to state control due to the introduction of the new law, buyers and sellers of real estate are already specified in the contract of sale, real prices.
OFFICIALS I assure you that law-abiding citizens should not be afraid CHECK THEIR CASH OPERATIONS. Law enforcers in sight will enter only those people who commit FINANCIAL CRIMES
For several weeks, Ukrainian real estate market is living under the new rules. After August 21, many of the sale of real estate should have been under close government control.
Recall that, according to a new edition of the Law "On prevention and counteraction to legalization (laundering) of proceeds from crime," significantly expanded range of professionals required to report "the competent authorities of" suspicious real estate transactions over $ 400,000 hryvnia.
And the important thing is that now, in addition to banks, insurance companies and other financial institutions to report to the State Committee for Financial Monitoring (Gosfinmonitoring) on major transactions must: real estate developers, precious metals and stones, antiques and art, as well as notaries, lawyers and auditors .
"Businesses must ensure that any money" go "to the market of Ukraine"
The law has received wide public. Some believe that control the real estate needs, and this is just healthier market, others - that the latest attempt to totally control the state financial lives of citizens would only care real estate market in the shade. To understand the situation, we decided to hear the views of all participants.
To begin with his view on the impact of the new edition of the Law of Ukraine "On prevention and counteraction to legalization (laundering) of proceeds of crime or terrorist financing" FACTS "stated Chairman of the State Committee for Financial Monitoring of Ukraine Serhiy Gourjii:
- There are obvious things. And then that society must protect its financial system from dirty money, is an obvious fact for granted.
Measures to protect the financial system should be adequate to the existing risks. Provisions of the law aimed at preventing the device and use of the financial system of the country for corruption and questionable financial transactions. In my opinion, this is an adequate measure. Businesses must ensure that any money "go" on the Ukrainian market, to be interested in transparency and purity of the financial system and help the state.
This law should be viewed primarily as a preventive measure for the recovery of the financial system, business and the economy of Ukraine. This can be compared with the use of toothpaste to prevent tooth decay. But there is no limit to perfection, as there are no perfect laws. Therefore, this law will be improved taking into account the results obtained. But once again I want to note that state action should be adequate to the risks.
The world community agreed on the protection of the global financial market, so the need for this law in Ukraine is connected with bringing into line with international standards of the national system of combating money laundering and terrorist financing.
"Although the law came into force on August 21, the registration of Realtors in Gosfinmonitoringe eschene yet started"
Given the fact that since the enactment of the law has already passed a few weeks, "FACT" asked whether the realtors have begun to monitor their customers and report suspicious transactions to the State.
Our questions answered chairman of the committee on legislation, standards and legal affairs of the Association of Realtors (Realtor), Ukraine, adviser to the chairman of the State Committee for Financial Monitoring Svetlana Bovsunovskaya:
- Despite the fact that the law came into force on August 21, the registration of Realtors in Gosfinmonitoringe not yet begun, since not all regulations passed approval and agreement, including a presentation of information concerning the form and placement of Realtors registered in Gosfinmonitoring. And with regard to the influence of law on the real estate market conditions and robots Realtors no changes have not yet observed.
The passed law along with increased state control over the financial operations of citizens and businesses also expanded the powers Gosfinmonitoringa. They are now largely congruent with the powers of law enforcement.
Representatives of the state assure that law-abiding citizens have nothing to fear and in the field of view of the Committee will get only the people who commit financial crimes. Indeed, so far the financial monitoring bank wire, and it has not led to a total inspection of the citizens and businesses.
Of course, there are cases of officials of office for personal gain. But for such action officer shall bear legal liability, even criminal. I do not think that representatives Gosfinmonitoringa will abuse their official position. It's a solid organization.
I believe keeping the financial monitoring may have a positive effect for both the operators of real estate market, and for the market itself. Incidentally, the first positive aspect was that after August 21, when he joined the force of the law, virtually all sales transactions are conducted on real estate prices. Apparently, the people themselves decided not to risk it. Although these transactions in the current crisis conditions a bit.
- For example, in Gosfinmonitoring were reported undervaluation of the transaction? What awaits the participants of this contract?
- I think Gosfinmonitoring check traders, find out the reason for this underestimation. And if there are grounds, then, in accordance with the law will give the materials to law enforcement agencies for further investigative actions. Find the police grounds for criminal prosecution - these materials will be sent to the court for a decision on the application of penalties.
Everyone who wants to learn more detail about this, I advise you to get acquainted with the current practice site Gosfinmonitoringa where ever published such information. Also suggest to read the rules of laws providing for responsibility for the legalization (laundering) of proceeds. But I want to note that a decision on the existence of guilt is still taking only the court. Gosfinmonitoring himself does not.
However, we all know perfectly well that in the Ukrainian laws, there are many pitfalls and inconsistencies that allow competent lawyer to find a way around strict sanctions on legitimately. Therefore, the "facts" and asked for comments to the lawyers.
The extent to actually control all of the sale of real estate, "Facts," said partner law firm EYDIKOM Elena Vorontsov:
- A new edition of the Law of Ukraine "On prevention and counteraction to legalization (laundering) of criminally derived" from lawyers so far raises more questions than answers.
The document came into force on 21 August 2010, and financial monitoring mechanisms themselves have not only not worked out completely, but largely incomprehensible. Thus, the notary shall verify the stage of signing the contract of sale of real estate and notary registration. It's all more or less clear. But a lawyer and a Realtor should check to see whether a proposed transaction is the prototype of money laundering or terrorism financing.
That is, they must be monitored before the moment when a potential client will acquire such property. At the stage of applying for a buyer to find a suitable property. It turns out that a lawyer or realtor must in any case to collect financial information about the origin of the sum over 400 thousand hryvnia. In reality such actions is hard to believe.
- Is there a way to not advertise the cost of the transaction and thereby avoid the scrutiny of the state?
- If you want to hide the origin of the money you can always find a way to do this using the imperfection of the law. For example, legislators have allowed persons providing legal services, and auditors do not report suspicious financial transactions in cases where the relevant information has become known in the circumstances of client protection, represent him in court. Because there is such a thing as attorney secrets.
In addition, Gosfinmonitoringe argue that notaries are not required to report to the department about their suspicions of financial transactions, if the received information in circumstances that are the subject of the mysteries of notarial acts, but except for information regarding suspicious contracts sale of real estate amounting to over 400 thousand hryvnia .
Who will guarantee that the withholding of information on suspicious transactions, the participants not be referenced in the attorney's secrets? Or that the realtor would not say if the amount is negotiated with him, was lower than that specified in the final contract and is framed by a notary? So officials have to create a supervisory body which will check the implementation of the norms of the law to avoid fraud.
One can predict that the potential subjects of financial monitoring, home buyers, most likely, will attempt to understate the value of the object. And then there is a risk for the seller to an apartment or house. So while the regulator did not grind and do not clarify the application of a new mechanism of financial monitoring, and practice using it will not be gained, it can be assumed that the property market, and with it, and realtors are likely to go into the shadows.
On the issue of forming a real estate value "FACT" was asked to answer a lawyer, law firm partner, D & U Partners LLC Igor Hasina.
- One of the criteria of suspicion of the transaction is an understatement or overstatement of the cost. But the price of the apartment - an indicator is very subjective and dependent on a huge number of factors. In some cases the cost of some apartments may differ significantly from the average.
Would not that good faith to the seller or buyer will come Gosfinmonitoringa representatives and demand a report on the origin of capital? How can you prove the integrity of the transaction?
- I think that neither buyers nor sellers of real estate as long as there is nothing to fear. The language used in the law may give the impression that perhaps the staff FATF (International Panel on the development of financial measures to combat money laundering. - Auth.) For which the law and the written. The provisions of this document looks naive in a country where wages issue "in an envelope, but the apartments are bought and sold for cash dollars.
Therefore, in order to have someone to someone to come to, firstly, that this someone learns about the transaction, and secondly, that the transaction is clearly beyond reason. For example, if an apartment in Kiev, will sell for 5,000 hryvnia.
Actually learn about the transaction can only be of notaries, since the majority of "business entities that provide mediation services when making transactions of buying and selling real estate," ie, real estate brokers, nothing anyone will say. Because often these mediators are working with cash, its contracts with customers do not register, and themselves, these contracts are very difficult to call mediation.
In addition, you can always say that giving the customer paid access to the agency's database of real estate is not mediation, and information services, and therefore under the law does not fit. You can also refer to the fact that the amount of information it receives from the client broker when buying an apartment, does not actually give him grounds for suspicion. A request additional information he has no right.
Moreover, even if the cost of purchase and sale of an apartment is clearly unrealistic and should attract the attention of Gosfinmonitoringa, its members can successfully argue for a long time and with government officials about the reasons for the discrepancy. For example, the buyer is willing to pay such a high price for the half-ruined house, because in it he spent his childhood and the structure is expensive as memory. Or the seller stated that he gave an apartment for next to nothing, because he urgently needed money, and the ecological situation in the area dysfunctional. And clear criteria in order to refute such arguments, no.