The apartment is a gift: expert advice

26.06.2011 09:15
Articles about real estate | The apartment is a gift: expert advice Giving an apartment - a popular, but not the most reliable way to protect your grandmother from fraudsters that could encroach on its housing. Lawyers offer to take contracts, aggravating and complicating its property disposal, such as mortgages.

Accept a gift

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According to Justice Research in Kiev in 2010 in the capital were registered 18,867 contracts of sale of real estate and only half the donation contract - 9204. The popularity of gift flats confirm and notaries, who register their mandatory. The cost of notarial services an average of 500-1500 USD. and depends on the complexity of the work. In addition, mandatory bestows must pay a state fee of 1% of the appraised value of the gift.

According to notaries public, usually an apartment presented with close relatives (husband and wife, parents and children), although the transaction between non-native people also are fairly common. In the latter case, we are often talking about combining the contracts of donation and life care - a standard scheme, under which endows undertakes to care for the owner of the home until his death.

In this situation, more protected from a legal point of view looks like the donor because he is entitled to change its decision, in some cases require cancellation of the contract, and if the contract had been suspended (promise to give something in the future), it can and does change his mind simply by because of its deteriorated financial position.

Nevertheless, also endows risks - by law, the donor must notify the other party about possible negative consequences or other special gift, but in reality this is not always the case. Notaries explain that it could be declared as hidden spouses, registered in the apartment, and about its shortcomings, making it impossible to stay (for example, fungus to mold). In the event that bestows already spent repairing, it is unlikely that he would return the money, although the law provides for such duty the giver.

Therefore, as emphasized by lawyers, in each case the contract is made individually, though based on a model document developed by the Ministry of Justice. If, after the treaty enters into force the parties having claims against each other, they settled in the courts, often with the involvement of law enforcement. True, we are told notaries, and the case is that the parties have voluntarily come to amend the contract changes without resorting to litigation.

Flats in half

Under Ukrainian law, the landlord can not give all of her, but only part. In this case, explains the managing partner of bar associations Arzinger Timur Bondarev, the apartment is set total share ownership, which provides for the division of the rights to it for so-called common parts (eg, 1 / 4, 1 / 5 2 / 3). "To accurately determine what part of the apartment in proportion to the share of gifted and talented can enjoy what order to use the rest room, equity owners must sign an agreement on how to use and possess the common property" - explains the lawyer.

To further the new owner of the apartment could dispose of it, this part should be allocated in kind, ie, physically separate apartment so that its owners could use the bathroom, kitchen and bathroom independently. In practice, do one of two full apartments is almost impossible, therefore, to co-ownership is usually the rules of joint ownership in which to dispose of his part of one of the owners can only with the consent of the other. As explained junior associate AstapovLawyers Oleg Grin, in the case of legal transactions of the donation of real estate such consent must be expressed in writing and notarized.

Up to 18 apartment will not receive

Minor grandchildren apartments give not often tell the notary. Explains this by the tax factor and the complexity of the procedure. So, if housing daritsya children, spouses or parents (first-degree relatives according to the Tax Code), the tax rate is 0%. For other residents of Ukraine (relatives or not) rate is 5%.

But the most complicated procedure is not a tax. As recalled by A. Grin, CCU provides that, at the conclusion of a minor legal transaction with respect to vehicles or personal property requires a written notarized consent of parents (adoptive parents) or guardians and permission of the guardianship and care.

Ie, receive a gift of an apartment without the consent of parents and relevant government agencies grandson who has not attained the age of 18, simply has no right. Otherwise, explains A. Grin, such a legal transaction in the future may be deemed null and void. A notary, adding that there are cases where the guardianship to permit the conclusion of a treaty, citing its negative effects on bestows.

At the same time residency in the apartment of a minor child can protect the landlord against possible fraud by third parties. Although in practice, we are told by experts, it does happen sometimes that the scammers themselves act grandchildren.

Nevertheless, as explained by T. Bondarev, if in an apartment registered minors, any transaction with such quarters are made exclusively with the permission of the guardianship authorities. "This may serve as some protection from the apartment of fraud, although considered as a 100% guarantee still not worth it. There are cases where notaries are contrary to the law witnessed the transaction without the permission of the guardianship, or when children are simply written out of the flats on forged or stolen documents ", - says the lawyer.

O. Grin adds that if the old landlord fraudulently forced to sign a deed of gift during the notarization of property rights is required to help in the form of the housing department № 3 on the composition of residents, issued a day license agreement. "If the infant or minor child will be registered in the apartment, the notary can not re-register the ownership and the same would make it impossible imposter implement his plan - he says.

True, a senior lawyer Konnov and Sozanovsky lawyer Dmitry Sichkar recalls that the lawyer will be able to check registration only on the basis of the above form number 3, which can also be faked. "Further action scam to resell the real estate would create a protective totem" - a bona fide purchaser "- warns lawyer.

Protective Methods

Therefore, lawyers are advised prescribing in a flat minor children, and use a wider range of techniques. Thus, T. Bondarev offers to conclude contracts, which involve burdening a flat prohibition against alienation. "This may be a contract of life maintenance or, for example, the pledge agreement. Also, in practice, using this, as an illegal apartment redevelopment, which is impossible to quickly get help from BTI-characteristic necessary for the alienation of the apartment, "- he says.

He is supported by D. Sichkar, the most effective way is called the transfer of apartments in the mortgage affiliates (related to the owner) persons. "It achieved the following goals: to become encumbered property, ie it can not be sold without the consent of the mortgagee and the mortgagee has a priority right to receive property in the event of disputes "- explains the lawyer. In the case if there has been fraud, lawyers recommend that the victims contact the police - if they establish the fact of a crime, to recognize the treaty as not to be easy enough.

Content tags: Tips on Real Estate
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