Exchange of municipal property for private property

What is an apartment exchange agreement?

An exchange agreement is an agreement under which each party to the transaction undertakes to transfer an immovable object to the other party in exchange for another immovable object (Article 567 of the Civil Code).

The parties to the exchange agreement are the seller and the buyer, who are simultaneously participants in the contractual relationship. Each of them alienates and transfers ownership of one property belonging to him and acquires ownership of other property.

Often this type of agreement is resorted to by citizens who are ready to exchange their apartments under one agreement. Moreover, this may be unequal housing. For example, an exchange takes place of a three-room apartment for a two-room apartment in the same area. Their area is different, and so is their cost. Then the parties agree on an additional payment and enter into an appropriate exchange agreement. All agreements are reflected in its clauses (Article 568 of the Civil Code).

Drawing up an exchange agreement

When preparing a contract, it must contain the following information:

last name, first name, patronymic, passport details of participants in the legal relationship;
characteristics of the property being exchanged;
the grounds on which the right of ownership to it arose;
a detailed description of the subject of the contract: if we are talking about an apartment, then it is necessary to indicate the area, number of rooms, balconies, loggias, encumbrances, terms of transfer of the apartment.

The contract specifies the rights and obligations of the parties. It is these provisions that discipline the participants when making a transaction:

the goods must be transferred within a strictly established period;
the property must meet certain requirements, for example, the absence of encumbrances, the absence of claims from third parties.

If the parties violate their obligations, then the property transferred to each other is returned and the exchange agreement is canceled. The guilty party compensates for losses. In this situation, the injured party is in a more advantageous position than, for example, in a sale and purchase. There she can only demand compensation for losses, but without returning the goods. In exchange, the injured participant can demand both the return of his property and moral compensation.

If the goods cannot be transferred without delivery, loading and unloading, the parties agree among themselves on who will bear the logistics costs.

Legislative regulation of the barter agreement (Civil Code of the Russian Federation)

The legal basis of contractual relations in the case of apartment exchange is set out in the Civil Code. In particular, the following norms of the Civil Code of the Russian Federation should be taken into account:

clause 1 art. 567 – both parties undertake under a barter agreement to transfer one product in exchange for another;
clause 2 art. 567 – each party is the buyer and seller of the goods;
Ch. 30 – the rules apply in the same way as a purchase and sale transaction;
pp. 1 clause 1 art. 161 – the barter agreement is concluded in simple written form.

Characteristics of the barter agreement

The agreement contains the following characteristics that characterize it:

The exchange is focused on transferring property. This feature is similar to the agreement of exchange and gift, rent, and rental relations.
Property that is transferred immediately finds its owner. Based on the situation, it follows that barter is a real contract.
Despite the fact that barter refers to paid contracts and is of a paid nature, the legal relationship is somewhat different from a loan or sale. The difference lies in the form of the counter presentation. The parties to the contract exchange products: one product for another.

Cost of goods

Since during the exchange there is no payment of funds for the transferred goods, the parties do not indicate the value of the property in the text of the agreement. In this situation, goods exchanged with each other are considered by default to be of equal value, unless otherwise specified in the law.

If the price of one product is lower than the cost of another, you must pay the difference, usually in money. But the presence of money in the contract is also not considered a mandatory norm. The parties may stipulate in the contract other options for additional payment, besides money. For example, if an exchange of one car was made for another, more expensive one, the participants in the transaction can use the following option: the additional payment can be compensated for by auto parts for the car or by the transfer of other property.

Duration of the exchange agreement

The legislator has not determined for the parties to the exchange the time frame during which property is transferred from one party to the other. But if such conditions are absent, then in practice, the condition for the simultaneous transfer of property from one party to the other is applied. But in practice, one participant transfers property, for example, today, and the second undertakes to do this later. If he fulfills the terms of the barter agreement in good faith, then his obligations under the barter agreement will be considered fulfilled. Otherwise, the law protects the party who first transferred the property. Let us turn to the provisions of Article 328 of the Civil Code of the Russian Federation. This article states that, subject to certain conditions, the party that first transferred the property may refuse to perform the contract or suspend the execution of the contract in situations:

the counterparty (the second party to the transaction) did not provide the previously agreed upon property in exchange;
if there are circumstances that indicate that the property will not be transferred on time.

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Contract form

There are no special requirements for the form of the exchange agreement. This is a regular purchase and sale agreement, but with its own specific points. Therefore, the exchange agreement is concluded in a simple written form, where the subject of the relationship is two real estate objects, but actions with them are carried out within the framework of one document.

The number of copies is equal to the number of parties to the agreement with an additional copy for the registration authority (Rosreestr). The law does not require notarization of the exchange agreement, with the exception of the following cases:

when the owner of real estate is a minor or a citizen with limited legal capacity;
alienation of shares in common ownership of a real estate object (with the exception of alienation of shares of a land plot and simultaneous alienation of shares by all participants in shared ownership).

Exchange and exchange of residential premises: are there any differences?

In fact, the procedure for exchanging and exchanging apartments has many similarities. They have the same goal. But an exchange transaction is possible for property that is owned by the parties to the agreement. All changes related to the owner of the property are made to Rosreestr. But provided that the subject of the contract is real estate property.

IMPORTANT : you can register the transfer of ownership not only in Rosreestr itself, but also in the MFC, on the official website of Gosuslugi.ru if you have an enhanced digital signature.

If municipal housing is exchanged, then these actions are carried out by citizens within the framework of an agreement concluded with the local administration. Social housing is on the balance sheet of government agencies. If this housing is exchanged, then Rosreestr is not needed; it is necessary to renew the social tenancy agreement. But this does not mean a transfer of ownership, since the tenant of social housing is not its owner! The state, represented by its bodies, remains the owner.

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How to draw up a barter agreement correctly?

The rules for drawing up an agreement for the exchange of property are similar to a purchase and sale transaction. But you should specify the points that must be present in the exchange agreement:

the obligation of each party to simultaneously transfer and accept the apartment to be exchanged;
describe as accurately as possible the characteristics of each object, the characteristics that allow them to be identified (name of the object, its address, cadastral number, area, etc.);
the cost of each of the objects, when establishing an additional payment - its size in total terms;
information about the title documents of the real estate subject to exchange;
procedure for releasing exchanged areas.

An act of acceptance and transfer of objects must be drawn up with the contract. It is recommended that the deed indicate all equipment and property that remains to the new owner, as well as its condition at the time of transfer.

The date of drawing up the contract and the details of the participants on each side must be indicated. The document is sealed with the handwritten signatures of the participants on each copy.

Exchange of municipal property for private property

In accordance with Part 2 of Article 567 of the Civil Code of the Russian Federation, the rules of the articles of the Code on purchase and sale are applied to the exchange agreement. In this case, each of those participating in the exchange agreement is considered the seller of the property that he gives, and the buyer of the property that he receives.

According to the agreement dated July 15, 2002, concluded between the Administration of the city of Sterzhnevoy and OJSC Tomskneft VNK, the administration exchanged non-residential premises with a total area of 617.7 square meters. m - cafe "Tomsk" in the hotel "Kedr" on the street. Mira, 12 in the city of Sterzhnevoy, which is municipally owned, for a premises with an area of 1055 sq. m. m of the training and production base of SOK Neftyanik in the city of Sterzhnevoy, 2nd microdistrict, 209a, owned by OJSC Tomskneft VNK.

24 Jul 2020 yslygiur 948

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Necessary documents for registering ownership of an apartment under an exchange agreement

The transfer of ownership rights to property transferred under an exchange agreement is subject to mandatory state registration. Therefore, each of the parties to the transaction will need to contact the registration authority with the following documents:

a passport or birth certificate if the owner is a minor on the date of the transaction;
a power of attorney certified by a notary, in the case where the interests of the owner are represented by an authorized person;
agreement for the exchange of property (apartment, room, house or land);
notarized consent of the spouse to the alienation of joint property;
consent of the guardianship and trusteeship authorities, if the owner of the property is a child.

Documents are submitted by the applicant in one of the convenient ways:

through a multifunctional center or to a Rosreestr branch;
sending by registered mail with notification and an inventory of the contents;
through the official website of Rosreestr in the form of an electronic appeal with the condition of signing with a qualified electronic signature certificate (enhanced qualified electronic signature).

Registration of an agreement is subject to a state fee of 2,000 rubles for individuals and 22,000 rubles for legal entities.

Conducting transactions for the exchange of residential premises between local governments and legal entities

Example. Organization “A” entered into an investment contract with the local government body of city “B”, under the terms of which the developer organization undertakes to build new residential buildings, part of the apartments in which, under exchange agreements, is transferred to the residents of old buildings, which are subsequently subject to demolition after the transfer of ownership to all residential and non-residential premises and in their place new ones are being built. Some of the apartments to be transferred to organization “A” are used by individuals under the terms of a social tenancy agreement.

Based on the above norms, we can conclude that the exchange agreement is an agreement under which municipal property is alienated, and, therefore, the organizations that are parties to the exchange agreement are both buyers and sellers.

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