Home / Purchase and sale of apartments / Secondary and new housing / Buyer’s risks when purchasing a privatized apartment

The legislation of the Russian Federation allows the purchase and sale of privatized housing. But before purchasing real estate, you need to carefully check the documents and formalize the transaction correctly. Only in this case can you avoid risks and not be afraid that anyone will challenge your ownership.

Buyer's risks

Example. Victor bought an apartment in the city center at a good price. The transaction took place with the participation of a notary, but a few months later he received a court notice that Mr. Ivanova I.I. — the seller’s stepmother filed a claim regarding the illegality of the purchase and sale. During the trial, it was established that according to the documents of gr. Ivanova I.I. I sold the apartment to my stepson. The transaction was notarized, and the contract stated that she received the money before signing the agreement. But in fact, any funds of Ivanova I.I. were not transferred. At the trial, the victim stated that she suffers from a mental disorder, and she does not remember the moment of signing the agreement. Her illness was confirmed by a medical examination, so the court recognized that she was incompetent when the transaction was executed. As a result of the trial, the court returned the housing to the plaintiff, a financial penalty was imposed on the stepson, and the final buyer was left without an apartment and money.

This is far from the only example where the purchase of privatized housing has negative consequences. And the presence of a registered purchase and sale agreement is not a guarantee that the new owner will not end up on the street over time.

To protect yourself as much as possible, you need to take into account all the risks that are possible in the process of buying a privatized apartment and know the ways out of problematic situations.

Deception by the seller

Sellers often do not cover the problems that a buyer may encounter after purchasing the property. This is about:

• illegal redevelopment, which can lead to a fine or an order to return the living space to its original state;
• debts for utility services - payment falls on the new owner, because the debt is assigned to the apartment;
• about the unfinished process of challenging the rights to living space in court - as a result, the agreement may be cancelled.

In addition, there are many scammers in the secondary housing market who use fake powers of attorney, passports or other documents to conclude a transaction. Most of them disappear after receiving an advance, but in some cases the fictitious sale is completed. Over time, a real owner appears who can return the right to housing in court.

We recommend reading: Fraud schemes when buying an apartment

How to avoid problems

To avoid becoming a victim of scammers, you need to check the photo in your passport with the owner’s appearance. His identity is also verified through the passport office. If a lawyer is involved in a transaction, he can submit a request to verify the person using all open databases. Additionally, it is necessary to check the address of the apartment with that indicated in the certificate from the Unified State Register of Real Estate. The document is issued by Rosreestr. You will need to write an application, present your passport and pay the state fee.

It is advisable to check the layout with the documentary plan, which is stored in the BTI or use the services of a surveyor. He will mark all changes directly on the drawing.

A request to the BTI to obtain a plan is submitted only by the owner. If he does this, then most likely an illegal redevelopment has been carried out in the apartment.

You can check the debt for utility services through the website: www.gosuslugi.ru or the management company that services the house where the living space of interest is located.

Expert opinion

Semyon Frolov

Lawyer. 7 years of experience. Specialization: family, inheritance, housing law.

In transactions involving an advance, many buyers inattentively read the terms of its payment and return, which are reflected in the preliminary agreement. They are often unprofitable, and allow the recipient not to return the money if the deal fails. We are talking about the additional responsibility of the buyer, the terms when the seller relieves himself of all obligations, etc. It is possible to achieve the return of the due amount only in court on the basis of Art. 381 of the Civil Code of the Russian Federation, provided that the purchase and sale was not completed due to the fault of the seller.

Violation of the rights of the owner's spouse

The transaction may be considered void if the seller's current or former spouse has rights to the property. According to paragraph 1 of Art. 256 of the Civil Code of the Russian Federation, property acquired by spouses during marriage is considered common in the absence of an agreement with other conditions of ownership. As for apartments, spouses can claim their share even if they are not included in the register as the owner. Therefore, to carry out the transaction, the consent of the second spouse, executed by a notary, will be required. Without this document, a party not participating in the sale may seek cancellation of the transaction through the court.

The consent of the second spouse is not necessary if only one person owns the property. For example, housing was purchased before marriage or received as a gift or inheritance (Clause 1 of Article 36 of the RF IC).

How to prevent deception

You need to check with your passport whether the seller was married at the time of privatization (purchase) of the property. If the document was received after the acquisition of ownership and does not contain information about marital status, it is necessary to request from the owner a statement with a notary’s mark on civil status.

Violation of the rights of minors

The purchase of real estate where minors are registered or have a share may be considered void if the child declares his rights. If a minor has a share in the apartment or is registered in it, then the sale will require written permission from the guardianship authority. The institution monitors that children’s rights are not violated during transactions with housing. In the absence of a document, the transaction is easy to challenge.

Also, the agreement can be canceled if the minor did not take part in the privatization. For example, children lived in an apartment, but they were not included in the list of owners during privatization. The limitation period for these facts will begin from the moment when the minor learned about the violation of his rights, even after he reaches the age of majority.

How to reduce risks

1. Obtain permission from the guardianship authorities. A request for a document can be submitted by parents or other persons who have the right to represent the interests of the child.
2. Make sure that the minor has a place to live - ask for a certificate stating that the child has a permanent place of residence.
3. Check your children's registration through an extended extract from the house register. The certificate reflects all persons who have ever been registered in the premises, including minors. If the property is privatized with a registered child, then he does not lose the right to the share even after a change of owner.

Violation of the rights of “refuseniks”

Refuseniks are persons who abandoned their share in the apartment during the privatization process. According to the law, refuseniks have the right to lifelong residence in privatized premises, and no one can deprive them of this right. If, when purchasing an “apartment with a refusenik,” his interests were not taken into account, then such a transaction is also easy to challenge.

How to avoid problems

You can find out about the presence of refuseniks in the passport office, which contains information about all registered persons in the housing area of ​​interest. The rights of the refusenik must be taken into account by paying him compensation in the form of a “privatization share,” for which a separate agreement is drawn up.

If the refusenik lives in another social rent apartment, demand from the seller an agreement under which he will move into another living space. In this case, the purchase and sale agreement states that the refusenik does not claim residence and undertakes to be discharged within a certain period. Another option is not to sign the agreement until the objector is de-registered.

Recognition of the seller as fully or partially incompetent

The transaction is canceled if partial or complete incapacity of the seller is proven. The risk is that it is possible to recognize the seller as incompetent at the time of conclusion of the transaction after the agreement is finalized. The initiators of such claims are most often relatives, guardians or trustees.

The owner may be declared incompetent before signing the agreement, but this fact is hidden from the buyer by unscrupulous intermediaries taking part in the transaction in order to quickly complete the transaction. Increased attention should also be paid if the seller is an elderly person.

How to protect yourself

Request a certificate stating that the seller is not registered in a drug treatment or psychoneurological dispensary, as well as from the guardianship authorities about the absence of guardianship and court decisions declaring a person incompetent. If the owner is registered with a psychiatrist or narcologist, then the agreement must be concluded only in the presence of a notary and a doctor.

Features of signing the agreement:

• a person recognized as having limited legal capacity may sign papers in the presence of a trustee;
• a person declared incompetent cannot sign papers independently; The agreement is concluded with the guardian upon presentation of the relevant documents.

In both cases, the consent of the guardianship authorities to conduct the transaction is required. If such situations arise, it is advisable to use the help of a lawyer, and it is recommended to conclude a transaction in the presence of a notary.

Violation of the rights of heirs

After purchasing a privatized apartment, the new owner may face lawsuits filed by hidden heirs. They are often announced after the death of the previous owner and the sale of the apartment to a third party. If in court the heir proves that he did not enter into the inheritance within the established period for a good reason, then the transaction is recognized as void in accordance with Art. 1155 of the Civil Code of the Russian Federation.

Risks also arise if property is transferred by will. The court may declare a document invalid if it is drawn up with violations and the testator is incompetent. In such situations, the will loses its legal force.

Purchasing a privatized apartment

So, how to buy a non-privatized apartment and what to pay attention to? The purchase of housing under a purchase and sale agreement, of course, is a more significant, from a legal point of view, basis for owning housing than privatization itself. The fact of privatization of the purchased apartment in no way affects the list of powers of the owner, designated by the Constitution and laws of the Russian Federation.

Privatization according to civil law is the basis for the emergence of property rights. That is, the buyer actually purchases an apartment that is privately owned.

However, it is worth paying attention to some features of a privatized apartment:

• it is necessary to make sure whether the privatization procedure has been completed and whether ownership rights have been registered in the manner prescribed by law;
• whether the person selling the apartment is entitled to dispose of the housing in full and in relation to all housing;
• whether the apartment is individually owned or in common, shared ownership;
• is there consent of all registered persons to sell the apartment;
• whether the interests of minors and incapacitated participants in privatization are taken into account.

This is important to know: Is it possible to mortgage a share in an apartment without the consent of other owners?

The authority of the counterparty to sell the apartment is an important aspect. After all, if the interests of at least one of the privatization participants are violated during the sale, this will serve as a basis for declaring the sale agreement invalid. The purchasing person must take these aspects into account.

Reliable protection against risks

All interested parties can challenge real estate transactions within the limitation period (Article 195 of the Civil Code of the Russian Federation). The countdown begins from the moment a person learns that his rights have been violated.

The total period is 3 years. However, it cannot be more than 10 years from the moment the offense was committed (Article 196 of the Civil Code of the Russian Federation). At the end of this period, the interested party loses the right to go to court, so most lawyers recommend buying a home where the seller has been the owner for many years.

Buying a privatized apartment is a complex procedure that contains many features and pitfalls.
There is a general scheme for purchasing real estate, but each individual case is largely individual. Only the participation of a specialist in the transaction will allow us to take into account all the risks that are possible not only at the stage of purchase and sale, but also after the completion of the transaction. Consult our lawyers about what risks exist when buying an apartment in your particular case? What additional documents should be required to exclude the possibility of challenging the agreement? In what cases should you hire a notary? A specialist will answer these and other questions and help you avoid problems when buying a home. Attention!

• Due to frequent changes in legislation, information sometimes becomes outdated faster than we can update it on the website.
• All cases are very individual and depend on many factors. Basic information does not guarantee a solution to your specific problems.

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Author of the article

Maxim Privalov

Lawyer. 2 years of experience. I specialize in civil disputes in the field of housing and family law.

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