The practice of avoidance of real estate

08.12.2009 12:02
By Igor Odnopozov, chairman of real estate professionals in Kiev:
- During the whole period of my work in real estate, which is more than a decade, my practice has been only one case the court recognizes a real estate transaction invalid. And it happened two years after the transaction. Kind of partial to alcohol citizen has sold an apartment at a reduced price. And when he tired of the order of relatives in the house where he lived after that, somehow they managed to prove in court that the deal was struck their relatives in a state of profound hangover - complete insanity, and he then, allegedly, did not understand the significance of his actions. While it is clear that after all this time, could hardly lead to the irrefutable evidence. A reason for going to court and the case has understated the price of sold apartments. As a result, the court found the buyer of real estate purchaser in bad faith, guided by the currently applicable law to dissolve the recommendation of the transaction, in which figures understated the value of property. However, fraudsters can do without the low prices.
Explains Julie Kurylo, a partner at law firm YUST Ukraine:
- It's important to know some of the most common schemes used by unscrupulous sellers of real estate. One of them is to create a situation where a person makes a deal previously limited powers, for example, the general meeting of participants of cooperatives. However, if the transaction is a fact deliberately silent party to the contract. After signing the contract unfair side appeals to the court, citing his lack of proper authority of the other participant.

Careful with the powers of attorney

Fairly common mistake is the following. A buyer wishing to accelerate the process of buying an apartment, the seller sends the money in payment for an apartment and receives from the seller all the title documents and power of attorney to sell. In a subsequent attorney enters into a contract of purchase and sale of an apartment with his wife. However, selling an apartment husband to his wife a power of attorney obtained from third parties, violates the legal prohibition on committing an attorney acts in their interests. Family Code of Ukraine established that the property acquired by spouses during marriage is their joint property. Thus, by proxy, in fact, there is a transfer of flats in the property. However, in this case, the principal may sue for recognition of the transaction null and void due to the fact that the attorney acted in their interests.
"In our practice, - says Julie Kurylo, - was a case where the client bought an apartment from the seller to the scheme described with a power of attorney, and subsequently decided to sell it to his wife. It was recommended that pending the conclusion of this transaction to conclude the marriage contract, according to which the property is acquired by one spouse is his private property. The couple drew up a marriage contract and signed a sales contract. Unfair seller filed a lawsuit, claiming it the fact that attorneys are the person acted in their interests. However, the court granted a marriage contract and to meet the claim was denied. "
Quite often the reason for termination of a real estate transaction there are errors of the notary. Attention is drawn to the fact that for a contract in respect of immovable property of one spouse must receive a mandatory notarized consent of the spouse.
Recalled Julia Kurylo: "In our practice, was a case where a notary was on friendly terms with both husband and wife, and received the consent of the other spouse on the phone, without issuing a notarial agreement. Subsequently, however, there was a quarrel between husband and wife, and one of them appealed to the court Recognition of the treaty null and void. The result of omission of the notary was the recognition of the treaty null and void. "
Particular attention should be paid to the deal, requiring permission of the guardianship. This permit is required if the apartment had minor children (under 14 years). Lack of resolution creates a high probability of recognition of the agreement null and void in case of dispute.

Error nonresident

Some features are transactions involving non-residents. In particular, the contract of sale of land for agricultural purposes can not be concluded with non-residents. In addition, the sale of real estate by non-residents requires prior permission of the regional state administrations, as well as permission GDIP (General Directorate of Services for Foreign Missions). Acquisition of non-resident property without proper authorization entails the risk of inability to registration of ownership of said property.
As pointed out by Julie Kurylo, in practice, quite often there are cases where non-resident buy real estate without permission GDIP. A notary certifies the transaction and records it. The law stipulates that ownership of real property passes to the buyer, since the state registration of transactions in the Uniform State Register of transactions. But when the resident goes to TIB for the registration of property rights, he refused to register due to the lack of this permission. In fact, a situation arises where the right of ownership already exists, but there is no possibility of its realization, as the registration of real estate in the BTI is the final step in the recognition of state ownership. Obviously, without being registered at the BTI, the owner can not dispose of their property.

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