The worst way to get an apartment

18.02.2013 01:00
Articles about real estate | The worst way to get an apartment According to the Federal Service for State Registration, Cadastre and Cartography, the fourth highest number of real estate transactions, after the contract of sale, gift and exchange, is the annuity contract or life-long maintenance of a dependent. But court statistics indicate that the most frequently terminates the contract is just the lifetime support of a dependent (rent). Why is that?

Complete lack of understanding of the specific contract

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Communicating with hundreds of customers who have signed a contract of annuity, I was able to identify simple statistic. Specifically, none of them are not fully aware of how to execute such an agreement, despite its notarization.

And there is nothing strange in that, for the majority of notaries is still not able to explain a lot of contradictions in the content of the contract rent.

On one of my recent sessions to give explanations to the process was caused by the notary. Her conclusion was struck even the court: "At the date of registration of the disputed transactions were the same all notaries documents how you would like the content of the treaty, hard to say, wrote everything."

My law practice confirms that few who know the difference between a life annuity contract of maintenance of a dependent, moreover, there is confusion over the definition of retribution of these transactions, which currently has the highest priority.

Let us consider the

Under the contract the buyer rents the apartment shall monthly transfer set amount of money the seller, not more. Under a contract of life maintenance of a dependent for such enforcement is not allowed. In the latter case, the buyer must provide personal care and maintenance of vehicles, such as: to buy food, medicine, clothes, cleaning the apartment, otherwise. Most of their duties are confused or do not know, allowing the replacement of personal care and maintenance costs estimated monthly payment, which is the absolute grounds for termination of the transaction.

It is essential to onerous contracts annuity or life annuity of a dependent.

For example, if the seller has transferred to the buyer the apartment for a fee, even the most insignificant, for example, 10 000 rubles., Responsibility for the monthly costs of the new owner is still within the limits set by the contract and referred to the SMIC (minimum wage), equal to $ 100. For example, the monthly payments or the financial equivalent of the required services on the content of the seller, so fixed contract in the amount of not less than 2 times the minimum wage (the most common type of contract) will be equal to 200 rubles a month.

If after registration of the transaction value of the apartment was not paid, the contract is gratuitous, and the cost would amount to a buyer from one to two living wages per month, regardless of the conditions of the contract. In Moscow in 2012, the living wage corresponded to 9719 rubles.

In November 2011, legislation was enacted that changed the size of the content to customers, but only on free life annuity contract. For them, introduced a monthly payment obligation or expenditure, corresponding to one or two of the subsistence minimum, regardless of the previously prescribed terms of the agreement. The Act does not apply to purchasers of apartments for compensation transactions, they, as before, it is enough to contain expenditure stipulated in the contract: 2 minimum wages - 200 rubles, three times the minimum wage - 300 rubles, etc.
Performance is impossible to prove

85% of the annuity contract and life-long maintenance of a dependent are between relatives or close friends. At the close and trusting relationships, sometimes inconvenient or even impossible to require documentary proof of its execution. Brings, say, the buyer of an apartment seller products, the language does not turn to ask for a receipt for them. Or after harvest in the apartment which such an act on the work require?

It turns out that for many years the deal is executed, all are satisfied, but the documents are not prepared for this.

Because of the old man's whims, but more often on "nauskivaniyu 'relatives and new acquaintances sellers of apartments, usually elderly, treated to convince the latter to the court with the termination of the contract in connection with his alleged failure by the buyer. And why not, if it is likely to return the apartment to its ownership.

If at the hearing the buyer, the seller is called upon to help, care, to ensure its monthly food, medicine, clothing and other, did not provide written evidence of the implementation of these commitments, the contract will be terminated due to its failure, and the apartment would return back to the seller.

In these disputes, only 15% of owners can reserve accommodations, the large majority of them to take care of gathering documentary evidence in its favor.

In one of the trials in an attempt to terminate the contract of annuity buyer, seller providing content services and care, the court was presented a thick notebook, in which a record for the entire period of the contract, reflecting the comprehensive list of services rendered and caring. Each month the recipient of such services sign it is that it all suits and claims she does not have. It was this book was the main evidence in the case, and only thanks to her court concluded there were no grounds for termination.

For the court to honor old age more than the law

Case of termination of annuity treated in courts of law, which are particularly sentimental and more guided by the principles of morality and compassion, is unacceptable forgetting about the rule of law.

With this attitude to manage the process, as in virtually every case the supporters of termination of the contract of annuity are the elderly and the sick, indulgence and understanding them judges are always very high.

On one of my last review of the appellate court has terminated the contract because my grandmother, who sold 13 years earlier his apartment, deteriorated health. Strangely enough, but the court found these circumstances are relevant and sufficient to return to her apartment.

I can not say what guided the composition of the court, also consisting of retirees. Apparently, the fact that the return of the apartment grandmother restore health. I do not know whether these things? But the fact that no one will return to the buyer of his apartment and spending more than ten years of courtship for the elderly clerk and its complete software, obviously.

Certainly, in the above case has yet to be appeal to the Supreme Court, but this decision is indicative of many and should bring the appropriate thoughts.

Contract of annuity - a very specific deal. Not only its members sometimes can not understand the mutual rights and obligations to each other, often can not do it and notaries, called to draw up documents. And in order not to make the mistake of giving everyone a very simple legal advice - do not buy an apartment on the life annuity contract.

Oleg Sukhov, lawyer
Content tags: Tips on Real Estate
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