The apartment is on assignment: rules, options, risks

12.05.2011 07:30
Articles about real estate | The apartment is on assignment: rules, options, risks Buying an apartment to which the developer has not handed over ownership - a common thing on the market. True, there are some legal nuances that must be taken into account to the buyer that his deal will be considered valid.

"Prefabricated" cheaper

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Sell ??the scheme assignment of rights to ordinary investors - individuals or, more often, legal person, bought an apartment (and sometimes even entire blocks) in some attractive object in the initial phase of construction. "From individuals such apartments in our database about 3-5%. In general, the market of new buildings in the sale of about 10% of the apartments on assignment "- shows Julian Gutman, director of new construction of" Incom-Real Estate.

Reason the seller is clear: in a house built apartment price increases, so that the benefits are obvious. "If the house is built of 2-3 years, the apartment price rises by about 40-60%. In most newly opened sales at the beginning of the project (on the stage of getting initial permits, when construction work on site only beginning). At the stage of excavation or construction of underground parking added to the price 10%, with construction of the first elevated floor - another 10% in mid-construction - another 10%, in summing up under the roof - another 10% ", - says Irina Kirsanov, marketing director of the Criminal Code "Relight-Invest.

However, after obtaining ownership of the apartment price is still increasing, but sometimes this process is delayed so that an investor chooses not to wait, and take profits. Buyer, in general, also advantageous to buy an apartment on the assignment: it would be cheaper than that from the title, and cheaper than the same apartment from the developer in the same house. "Many people are selling the rights to have not built an apartment because of changing life circumstances: for example, if urgently needed to repay debt or credit, in case of divorce, inheritance, good housing, etc. Accordingly, these apartments are much cheaper than the builder . "Investment" apartments, purchased specifically for resale, too, tend to cost a little cheaper "- explains Julian Gutman.

Preschool and PDKP: what it means and what to choose?

A contract of assignment of claims (assignment) is indicative of the acquisition is not the apartment itself, but only the right to demand the transfer of its ownership. Now there are two main types of assignment: assignment of the contract equity (DDU) and a preliminary contract of sale (PDKP).

Regarding the first option: first, contract equity must be paid all monies paid for any funds are transferred to the purchaser in the capacity of its obligations. Secondly, the assignment is possible before the handover. Prior to receiving the keys apartment owners assignable unlimited number of times. And, third, and the contract interest, in respect of which the assignment and the assignment contract itself must undergo state registration.

According to the preliminary sales contract is assigned a claim conclude the main contract for the sale of apartments in the future under certain conditions and within the prescribed period, but no right to demand the transfer of the apartment underlines Valery Simonov, head of legal department of the company "NDV-Real Estate. This is due primarily to the legal nature of a preliminary agreement under which the buyer and the seller does not commit itself sale, but only commit to make it in the future. "In other words, the buyer can only induce the seller to commit in the future purchase and sale of the apartment, but may not require the transfer of flats in the property - said the expert. - If the preliminary agreement will be terminated / discontinued, the buyer can not rely on a flat, even if they had been paid a sum of money equal to the cost of the entire apartment, he can only demand the return of funds paid to them. " Assignment of rights under the preliminary agreement is possible with the signing of the preliminary agreement and before signing the main contract of sale.

As the transaction is

The right of the original creditor moves to a new lender to the extent and under the conditions that existed at the time title passes. It is therefore important in the assignment contract law to specify on what exactly the contract is assigned by law, which documents the seller must transfer to the buyer the right. You can also specify the timing, price concessions, the contents of the assigned rights and other conditions, if they differ from the conditions established for the primary contract. Assignment of claims under the contract is allowed only after payment of the contract price, or simultaneously with the debt for a new participant of the transaction - the buyer. If the assignment is to transfer the debt, there is a document should contain more details on mutual on all sides.

Assignment to the apartment is not possible without the participation of the developer. He must consent to the assignment. "But you must make sure that the contract under which the right to an apartment owned by the current holder, accounted for the builder and the apartment does not concede before others - draws the attention of Julian Gutman. - It is also important because, if suddenly the builder refuses to issue an apartment a person who has been granted to it by assignment, it will be difficult to assign responsibility to transfer such rights and to return the money. " Typically, the developer sets the fee for renewal of the documents or the issuance of an assignment of rights.

The buyer after the transaction must remain in the hands of the following documents:

* The main contract (or a certified copy thereof) for which there was a concession, with all attachments or supplements;
* Confirmation of settlement between the parties to the basic contract (usually, it is reflected in the Agreement on the Assignment);
* The act of transfer of the aforementioned documents;
* Consent to the second party to the assignment, if such consent is not provided in the Agreement on the Assignment;
* And finally the assignment contract.

Trust, but verify

But before we make a deal, the buyer must obtain from the builder full package of documents on the subject, as if the rights to an apartment bought directly from him, to ascertain the status of construction and other subtleties. It is important to assess business activities and reputation of the builder, to learn the fate of other ongoing projects or sold to them, says Julian Gutman: "With proper verification builder risks are minimized (not including investment risks when buying any new buildings)."

Irina Kirsanov believes that in the case of preschool is no risk: the developer implements its new building on the 214-FZ, and the rights of participatory construction, and hence again the contract of assignment of claims are reserved. But in the case of termination of the contract of a joint construction of the final purchaser loses part of funds paid. "Taking advantage of its right to 214-FZ, the final buyer will receive the wrong price he paid for the assignment, and the original, designated in the contract of a joint construction between the first party and developer. But apartment price in the initial phase of construction is minimal. That is, the dissolution of the contract, the buyer, who became party to the share of construction under the contract of assignment, lose the difference in cost that has emerged as the "growth" at home "- warns Irina Kirsanov.

Let us explain by example. The cost of a two-bedroom apartment when you buy the first share participant was 6 million rubles. A year later, its cost has increased by 20% to ? 7.2 million already. At this price it sold the interest holders of the assignment, and then building stood. Terminate the contract of a joint construction final buyer may require the developer to only the amount prescribed in the first contract - 6 million rubles. That is 1.2 million, he will lose.

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