About the correctness of terms
First of all, it is necessary to make a reservation that in fact the word “exchange” implies a transfer of the right of use and refers to cases where we are not talking about the owners, but about tenants (for example, municipal apartments).
In a market transaction, it is more correct to talk about me. At the same time, the exchange agreement in its main provisions differs little from the standard purchase and sale agreement. Moreover, in practice, instead of barter, a double transaction for the purchase and sale of real estate is often carried out - this form is more familiar to all parties and has fewer risks.
What rights does municipal housing provide?
Is it possible to exchange a non-privatized apartment?
Another possible scenario is an alternative deal. Its advantage is that there is no strict mutual binding between the seller and the buyer, so the parties have a comfortable “room for maneuver”. The seller gets rid of the apartment he no longer needs and invests the money he receives in purchasing another home.
What do barter and exchange have in common?
The rights of a residential tenant have been discussed more than once on the Novosibirsk Real Estate.nn-baza.ru portal. In particular, the responsible tenant has the right, with the written consent of the family members living with him and the landlord, to exchange his housing for another. In this case, the second object must also be in social rent.
Exchange involves the transfer of real estate, which is the property of the parties. An exchange agreement is similar to a purchase and sale agreement, with the only difference being that the buyer gives not money, but real estate goods and, in turn, receives the same goods.
Both barter and exchange are apartment barter. Another common feature of these transactions is that the parties can conclude them both within the same city or town in Russia, and between different localities.
Is it that simple?
Exchange (we will use this well-established term) is considered a rather complex operation. The point here is not the procedure: the set of documents is no different from the sale and purchase.
The main difficulty arises when selecting an adequate object (one or several). On the secondary market, a more or less close equivalent is rare. A combination of a large number of parameters (including the age of the house, redevelopment, the need for repairs, the nature of the finishing, the presence of faults, the reputation of neighbors, etc.) makes each lot, if not unique, then much less standardized compared to housing in new buildings. Linking to a specific area, altitude, or building material further narrows the sample. In addition, the tastes and goals of the people participating in the exchange rarely coincide. And this is another reason why direct exchange is giving way to alternative types of transactions.
What if the price of the apartments during the exchange does not match?
Most often, the price of apartments during exchange must be balanced by an additional payment from one of the parties. The amount of the additional payment is determined based on the results of the assessment procedure. It is important to say that the additional payment is not necessarily money: it can be furniture, new renovations, movable property, non-residential objects (garage or parking space, utility room, storage room), etc. In some cases, several lots are sold in order to use the proceeds buy one, and vice versa. Thus, the transaction involves a whole range of various property, which must be described in the contract. Such a document can only be correctly drawn up at a real estate agency, since it requires the participation of qualified realtors, appraisers and lawyers.
What are the risks when exchanging a privatized apartment for a municipal one?
Is it possible to exchange housing between cities?
Related Exchange Options
Relatives have access to all possible transactions provided for by the Civil Code of the Russian Federation.
You can make a mutual transfer of rights in the following ways:
- municipal real estate objects can be changed in the manner prescribed by Article 72 of the Housing Code of the Russian Federation;
- to carry out paid transactions, it is necessary to conclude purchase and sale agreements, and the parties can themselves determine the prices for their apartments, provide for additional payments, and agree on other conditions for the transfer of rights;
- You can exchange real estate under gratuitous gift agreements;
- under an exchange agreement, it is possible to provide for an additional payment, and the parties will have to draw up only one agreement
Reference! In any exchange option, the transfer of rights will take effect only after registration with Rosreestr. The procedure for performing registration actions is provided for by Law No. 218-FZ.
Restrictions on such transactions may be established due to the status of the apartment and the presence of registered encumbrances. You will also have to take into account the complete ban on the gratuitous alienation of real estate belonging to a child. It is not possible to obtain the consent of the guardianship authorities for such a transaction, since the property situation of the minor is deteriorating. There is no prohibition on the alienation of a child’s apartment for compensation. However, an agreement can only be concluded with the permission of specialists from the local guardianship department.
How to exchange an apartment for another?
In general, to exchange apartments you need to do the following:
1. Find a potential counterparty with a suitable option for exchange (through a real estate company).
2. Draw up an exchange or sale agreement that contains all additional obligations for additional payment and the exact characteristics of the objects involved in the procedure.
3. Collect a package of documents:
- passport,
- title documents,
- extract from the Unified State Register,
- cadastral passport,
- certificates of absence of debt on property taxes and utility bills,
- certificate of family composition,
- certificate of registration or divorce,
- written consent from the spouse,
- draft agreement,
- receipt of payment of state duty,
- application for registration of a transaction.
4. Submit documents to the MFC or directly to Rosreestr.
Exchange of shares with a minor child between relatives
If children under 18 years of age are involved in the exchange, there will be no special differences from a transaction with adults. But there is one significant nuance...
The new share of the minor child should not be less than that which goes to the second participant in the exchange.
If it turns out that the exchange is not in favor of the interests of the child, the guardianship authorities will not give permission. Consequently, Rosreestr will not approve the deal.
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Example:
The couple divorced: the mother remained with her 12-year-old child, and the father moved out of the apartment. The question arose about the division of housing and the implementation of the father's share. The parents decided to arrange an exchange of the father’s share for the share of their minor son, without any additional payments. According to the documents, the husband owned ½ of the marital apartment in shared ownership. The child had a share in the grandmother's apartment, which was equal to ¼ share in common law. The couple contacted the local department of the guardianship authority - they indicated that they wanted to exchange shares in favor of their son, so that his new share would be greater than the previous one (exchange ½ to ¼). Considering that the interests of the child were fully respected, the PLO issued a stamped authorization certificate.
Agreement for the exchange of shares of an apartment with a minor (sample)
How does a mortgage apartment exchange work?
The law does not impose special restrictions on the exchange of an apartment or house with an outstanding loan. But such a transaction must necessarily involve the bank that issued the loan. And this procedure is far from formal. From the bank’s point of view, the collateral object is changing, and the new object must be no less liquid and of high quality than the previous one. Banks are more willing to agree to an exchange if the borrower has been making payments accurately for at least two years. Bank employees must ensure that the property is legally clean and in good condition.
The borrower contacts the bank with an application to approve the exchange or sale. The application must be accompanied by a passport, identification number, marriage certificate, passport and written consent of the spouse, as well as a document confirming the absence of debt on mortgage payments.
Alternative deal: how does it work?
What are the advantages of an alternative deal?
If we are talking about a direct exchange, the bank imposes a mortgage encumbrance on the new property and removes it from the previous one.
If the borrower moves to a more expensive apartment, they use a different scheme based on the purchase and sale agreement. The client submits an application for approval and an application for a new loan - the bank places an encumbrance on the new loan on the new object (all documents must also be collected for it) and removes the encumbrance from the previous object, which the counterparty receives under the purchase and sale transaction.
The most difficult option is to exchange for an apartment of a smaller area with an additional payment. Banks rarely agree to such transactions because the value of the collateral decreases. The solution could be a consumer loan that covers the balance of the mortgage debt. The additional payment received as a result of the exchange will somewhat soften the costs.
Three options for related share exchange
This is an exchange resulting from purchase and sale, barter or gift . The options parameters are presented in the table. All types of transactions comply with legal requirements. In this case, the rights of co-owners are not violated and emerging tax obligations to the state must be fulfilled.
Information!
With the option of exchanging shares by donation, money is saved significantly. For this reason, most transactions are made this way. We must not forget that only donations between closely related persons are exempt from income tax.
These are spouses, as well as blood relatives - children and parents, grandparents and grandchildren, brothers and sisters. But if a niece and aunt donated their shares in the apartment to each other, taxation remains in force. An additional advantage of donation is that you do not need to obtain the consent of the co-owners of the apartment.
The conditions for other types of transactions (purchase and sale and barter) are the same.
Related exchange in the form of purchase and sale
The purchase and sale of apartment shares between relatives is formalized using a standard document for this case (a real estate purchase and sale agreement). The following points need to be carefully considered:
- description of related parties;
- characteristics of the property (apartment), including technical indicators and cost of the share;
- procedure for completing a transaction;
- circumstances of force majeure and the procedure for imposing fines in case of violation of conditions.
Information!
Documents are drawn up and signed in triplicate for each apartment. One copy is due to the seller, the second to the buyer (related parties). The third set of documents goes for registration with Rosreestr. All documents must be notarized.
Kinship exchange in the form of barter
An exchange agreement is concluded. This document is drawn up in one copy (notarized), which goes for registration with Rosreestr. If the parties want to have the agreement in hand, copies can be made.
Provided that both parties’ housing is not privatized, the exchange agreement must reflect the procedure necessary in this case. It is required to collect a package of documents for submission to the local municipality. This package includes:
- passports of the parties to the transaction;
- two social rent agreements with warrants;
- written consent of the co-owners of the property for the upcoming exchange;
- certificates indicating family composition;
- a document confirming the consent of the trustee bodies, if the owner is a child or an incapacitated person;
- documents confirming the absence of debts for payment of housing and communal services.
This method has the advantage that local authorities will not check whether the value of the shares in the real estate that are to be exchanged is equal. Administration employees do not control the financial side of the transaction, but only look at the composition of the documents and the correctness of their completion. Real cash settlements are usually carried out without the participation of government officials, using a receipt. It is better to transfer money in non-cash form or use the services of a safe deposit box - this increases the security of the financial side of the transaction.
However, it must be taken into account that the local administration may refuse to carry out a related exchange if one of the apartments:
- registered as service housing;
- is unsuitable for habitation;
- located in a building undergoing demolition or in a building currently undergoing major renovations.
Information!
Another situation where local authorities refuse is a socially dangerous disease of one of the parties in a family exchange (for example, tuberculosis), when wide contacts with people are limited or prohibited.
Kinship exchange in the form of gift
The most common option is to exchange shares of housing between related persons. After all, there is no need to pay tax on income and ask the consent of other apartment owners participating in the exchange for the upcoming exchange. A gift agreement (deed of gift) is concluded in two copies. Both must be certified by a notary.
Information!
This type of transaction does not involve cash payments. If they do take place, they are carried out in a personal manner convenient for the parties.
The new share owners send documents to Rosreestr to make adjustments to the registration records.
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