Alienation of part of the premises

January 10, 2020
Legislation
Yulia Abdulbarova

The legal field sometimes confronts us with terms that are not entirely clear and easy to misinterpret. What is alienation? How can this term be related to civil law? What exactly is meant by it? What property can be alienated, and how does this happen? We will answer all questions in the article.

Definition of the term

What is alienation? The process by which property (or the rights to it) passes from one owner to another. Based on the definition, it can already be argued that this is a fairly broad concept.

What is alienation? Sale of an apartment, transfer of a share of real estate as a gift. Confiscation of property for non-payment of a loan. Alienation can be either voluntary or forced. The subjects here can be both individuals and legal entities, municipal and state authorities.

Thus, alienation of property in civil law is considered to be the entire range of options for transferring property from one owner to another. This is sale, donation, inheritance, confiscation, etc.

alienation

In civil law, the transfer of property into the ownership of another person; one of the ways the owner exercises the right to dispose of his property. varies about. paid (purchase and sale) and gratuitous (donation) based on a contract. in cases provided by law. carried out against the will of the owner, i.e. forcibly (for example, through confiscation or requisition).

Source: Large legal dictionary on Gufo.me

Meanings in other dictionaries

alienation - -I, cf. 1. Termination or absence of intimacy between someone; distance, isolation. Yakubov explained the reason for his alienation from people, besides old age, by the way, by the fact that he had “lost the habit” of them. I. Goncharov, Memoirs. Small academic dictionary
alienation - From/alien/eni/e [y/e]. Morphemic-spelling dictionary
alienation - Paid (purchase and sale) or gratuitous (donation) transfer of property into the ownership of another person. Great Accounting Dictionary
ALIENATION - ALIENATION - German. Entfremdung; 1. According to K. Marx, the process of transforming people’s activities and their results into an independent, hostile and dominant force over them. Sociological Dictionary
alienation - spelling alienation, -I Lopatin's Spelling Dictionary
alienation - Alienation, alienation, alienation, alienation, alienation, alienation, alienation, alienation, alienation, alienation, alienation, alienation Zaliznyak’s Grammar Dictionary
alienation - In civil law, the transfer of property into the ownership of another person; one of the ways the owner exercises the right to dispose of his property. ALIENATION differs between paid (purchase and sale) and gratuitous (donation). Financial dictionary of terms
alienation - ALIENATION, I, cf. 1. see alienate. 2. Termination of close relationships between someone, internal distance. Mutual o. Ozhegov's Explanatory Dictionary
ALIENIATION - ALIENIATION is a philosophical category, as well as a concept used in sociology, psychology, and law. In jurisprudence, alienation means the legal act of transferring ownership of something from one person to another. New Philosophical Encyclopedia
Alienation - (legal) - see Expropriation. Encyclopedic Dictionary of Brockhaus and Efron
alienation - noun, number of synonyms: 16 abjudication 2 alienation 4 internal distance 1 seizure 23 confiscation 12 selection 24 distance 6 taking away 21 detachment 11 lack of trust 4 lack of understanding 5 lack of affection 8 alienation 19 cessation of intimacy 1 requisition 5 expropriation 6 Dictionary of synonyms Russian language
Alienation is an objective social process inherent in a class-antagonistic society and characterized by the transformation of human activity and its results into an independent force that dominates and is hostile to it. Origins... Great Soviet Encyclopedia
alienation - ALIENATION -I; Wed 1. Termination or absence of intimacy between someone; distance, isolation. Mutual o. 2. Legal. to Alien (2 digits). Confiscation means o. property without compensation. Kuznetsov's Explanatory Dictionary
alienation - alienation I cf. 1. The process of action according to Ch. alienate I 2. The result of such an action; transfer of property into the ownership of another person as one of the ways to exercise the power to dispose of one’s property (in civil law). Explanatory Dictionary by Efremova
ALIENATION - ALIENATION is a designation of a social process in which human activity and its results turn into an independent force that dominates and is hostile to it. Large encyclopedic dictionary
alienation - ALIENATION, alienation, pl. no, cf. 1. Action under Ch. alienate-alienate (official). “Confiscation means the alienation of property without compensation.” Lenin. 2. Termination of intimacy between someone, distance (book). Mutual alienation. Ushakov's Explanatory Dictionary
ALIENATION - Transfer of land, property belonging to one person into the ownership of another person... Economic dictionary of terms
ALIENIATION - ALIENIATION is a philosophical category to designate a social process within the boundaries of which the results and products of people’s activities are transformed into an independent force that becomes higher than its creators and suppresses them. The latest philosophical dictionary

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Terms of use

What is not included in the concept?

We figured out what alienation is. Although this is a fairly broad term that characterizes the transfer of property or certain rights to it, it is worth highlighting procedures that are not it:

Transfer of property to another person for temporary use (in other words, leasing).
Relinquishment of ownership rights (refusal of the heir's share in the apartment).
Loss, damage, destruction of property, loss of rights to it.
Termination of ownership by court order.

Alienation of a share in common property rights in 2020

It should be noted that a person who is a participant in the common share has the right to a certain ideal share in this property. The Civil Code enshrines the provision that when one of the owners sells his share in the right of common ownership, the other participants have the right to buy this share. This provision does not apply to sales from public contracts.

The person who sells an ownership interest must notify the other participants in writing. In the notification, he must indicate the price and conditions under which the share is sold. If other participants in the common property do not buy the share being sold or refuse to buy it, the seller has the right to sell it on any terms and to any buyer.

When contacting a notary to formalize a transaction for the sale of a share in a common shared property, be prepared to be asked to bring proof that all participants in the property have been notified of the decision. Often, the owners of a common share voluntarily provide the notary with a waiver of the right of pre-emptive acquisition of this share.

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What is alienable?

Alienation of both the property itself and property rights is possible. What is this? Items, real estate, money, securities and rights to own them. Services, works, and intangible objects of intellectual property cannot be alienated.

Speaking about the alienation of property, experts distinguish three main groups of objects:

Real estate.
Securities.
Copyright Intellectual Right.

Let's get to know them in more detail.

Securities

There are two types of alienation:

Placement of registered securities (receipt entries will be made on the accounts of the first owners in the registrar or depository).
Placement of documentary bonds (making credit entries on securities accounts/issuing certificates to the first owners).

Securities are disposed of in almost the same way as real estate. They can be sold, bought, given, exchanged. Securities may be forcibly confiscated.

Copyright

Intellectual property refers to scientific discoveries, works of art, databases, computer programs, technology know-how, production designs, and technological inventions. The owner of the result of such intellectual activity is also its exclusive right holder. That is, he can allow/prohibit other persons to use this thought-out, invented, created thing.

To obtain such an exclusive intellectual right, the author must register it with a government agency. Only after this does it acquire the status of an alienable object. The right becomes possible to sell, exchange or give.

A copyright alienation agreement is a written document. The procedure for payment of monetary remuneration and its amount must be prescribed.

As for the area of property rights, only copyright is alienated. Intellectual and personal moral rights cannot be sold, exchanged or gifted. They do not participate in alienation transactions.

Voluntary options

Analyzing the concept of alienation, we found that this process can be both voluntary and forced. The most common is the first one.

Voluntary alienation of property or rights to it is the following:

Sale. A transaction that traditionally involves two parties: the seller and the buyer. The alienation of property here is carried out under a purchase and sale agreement. As for real estate transactions, they are possible only after state registration of the owner.
Giving. Unlike a sale, this is a gratuitous alienation of property. If this is a gift in favor of a relative, then such a transaction in the Russian Federation will be exempt from taxation. If in favor of a person with whom you are not related by family or marriage, then a certain percentage of the value of the gift is paid to the state treasury. However, donation in legal practice often acts as forced alienation. These are cases when unscrupulous relatives or third parties force a person to give them real estate.
Exchange. At its core, this is the conclusion of two sales and purchase agreements. Therefore, each of the participants in such a transaction simultaneously acts as both a buyer and a seller. According to Russian law, only property of equal value can be exchanged. If the cost of the objects of exchange is different, then personal income tax is paid on the additional payment.
Rent. This is one of the features of the alienation of real estate. A lifelong annuity agreement is drawn up with the owner of the apartment or house. The buyer undertakes to support the owner of the property for the rest of his life. After the death of the latter, the property becomes the property of the buyer. The sellers here are only individuals and non-profit organizations.

In what situations is it possible to alienate an apartment?

As mentioned above, rights to real estate can be transferred either at the will of the owner or against it. If the owner has given permission to alienate the apartment , we are talking about a voluntary transfer of rights and may concern the following situations:

sale is one of the most common paid real estate transactions. At any time, if there are no restrictions on this, the owner of the apartment can sell it to anyone, and the buyer receives grounds for the transfer of ownership rights to him. The owner, accordingly, loses such rights;
donation – free voluntary alienation of an apartment, when the rights to it are transferred from the owner of the property to the recipient. In order for the new owner to be able to formalize the rights to real estate, the agreement must be officially executed and registered in the prescribed manner;
exchange - exchange of an apartment for other real estate or other material assets (but not money, since then this would be a purchase and sale agreement). It is also a very common form of transactions when the owner of an apartment can exchange it for a country house, a car, etc., or, for example, exchange one large apartment for two smaller ones. Rights are alienated on the basis of a special exchange agreement;
lifelong maintenance is a special form of legal relationship when the rights to real estate are transferred to a person in exchange for the provision of a number of services to the owner from the moment the contract is executed until his death. Typically, this option is used by single elderly people who transfer their housing in exchange for care and maintenance.

In addition to situations where rights to real estate are transferred voluntarily, there are also options for the forced alienation of rights to an apartment:

for debts - the most common forced alienation. If housing is purchased with a mortgage, it will be pledged to the bank until the debt is fully repaid. If the buyer refuses to pay and violates the payment schedule, the financial organization can go to court and forcibly take away the property;
confiscation - if the owner of the apartment is convicted of certain types of criminal offenses, his property may be subject to confiscation (most often we are talking about economic crimes). In this case, the rights to real estate are forcibly alienated in favor of the state;
by decision of the authorities or local authorities - the reasons for such a decision may be different, for example, uncoordinated redevelopment that threatens the house or other residents, systemic failure to pay for utilities, demolition of the house where the apartment is located, etc. In some cases, compensation is provided to the owner (if the housing is alienated through no fault of the owner), in others there will be no such compensation;
in case of detected violations of the law - if a purchase and sale transaction or other agreement is challenged in court and declared invalid, this automatically cancels all its consequences, including the transfer of ownership to the new owner. In this case, the apartment will be alienated in favor of its previous owner.

Grounds for alienation

There are various reasons why an owner is deprived of ownership rights. First of all, it is necessary to establish that this procedure can be carried out both on a voluntary basis and in a forced mode.

Regarding the first, everything is clear - the owner intends to transfer ownership to another person on the terms that they initially agree on.

In the second case, the alienation is of a forced nature, which must be justified by the state or municipality when the apartment is seized.

In what cases is the legal owner deprived of ownership of real estate?

If law enforcement agencies have discovered the fact of illegal actions regarding the purchase of an apartment or the receipt of sources of income that served as the basis for the purchase of an apartment, then in this case the property will be confiscated.
If the state buys out some historical objects (for example, houses). In this case, the municipality has every right to seize the property with subsequent compensation.
If a citizen does not fulfill any obligations. For example, a citizen has mortgaged an apartment as an outpost for a loan and does not pay his obligations. In this case, the bank has every right to take the apartment for debts.
If on the given site where the house is built, it is planned to build some object important for the infrastructure (for example, a road). In this case, the authorities have the right to seize your home, but with subsequent compensation.

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Forced alienation must be ordered by a court or based on a decision of local authorities.

Forced options

Concluding an agreement for the alienation of property is one of the types of transfer of property or any right to it. In addition, there is also forced variation. It is applied by a court decision on the requisition or confiscation of property. The reasons for this are various situations:

The property owner cannot pay the debt or child support.
There is an emergency state necessity - a public danger, a large-scale disaster, etc.
Confiscation of property from a corrupt official (in the case where the owner could not prove that the property was acquired by him legally, with his own money).

As for the concept of forced alienation in civil law, in this case it can be as follows:

Collection of property according to the obligations of its owner (under a concluded agreement, court decision, specific law).
Due to the end of a rental or rental contract.
For state or municipal needs.
In connection with the seizure of the land plot on which the property is located.
Requisition or confiscation of property.
Termination of rights in the case of property used for its intended purpose.

State alienation

The transfer of ownership of property in some cases is carried out in favor of the state. Here it makes sense to talk about forced state alienation. Example: the owner’s land plot fell into a state development zone. As a result of its alienation, the state is obliged to first compensate the owner for the equivalent value of the property.

There are several ways to forcibly alienate property in favor of the state:

By decision of municipal, regional, federal executive authorities.
With a full refund of the price of the object.
Upon consent to the alienation of the property owner.
Upon preliminary announcement to the owner of news of forced alienation.
By a court decision if the government body proves its case (when the owner does not agree to voluntary alienation).

Forced expropriation

Sometimes situations arise when we are no longer talking about the voluntary transfer of ownership of an apartment through sale, donation or exchange, but about the forced alienation of residential real estate. In what cases is this scenario possible?

Court sentence. Confiscation of property.
The court's decision. If it is proven in court that the apartment was purchased in violation of the law;
Judicial decision. Forced sale of living space to pay off the owner's debts.

Quite often the practice of imposing a ban on the alienation of a specific apartment is used. Until the ban ends, housing cannot be sold or donated. For example, if the property was purchased with a mortgage, the bank thus guarantees itself that the apartment will not be transferred to the use of third parties until the loan obligations are repaid.

Legislative regulation

As for the alienation of real estate, the procedure for transferring rights to real estate is regulated by the Civil Code:

Circumstances under which the possibility of alienation arises: Art. 235, 236, 238.
Conditions for forced alienation of property: Art. 239, 241, 242.
Types of alienation of property: Ch. 30 - purchase and sale, section 5 - inheritance, ch. 32 - donation, ch. 31 - exchange, ch. 32 - rent.

In addition, when alienating property, depending on the specific situation, the provisions of the Housing, Family, and Land Codes are used. Tax legislation determines cases when transactions for the alienation of property are subject to tax. Conditions are being introduced under which citizens are exempt from taxes when the amounts of contributions are reduced.

Required Documentation

When drawing up a standard contract for the alienation of property, you must indicate the following data:

Details of the parties. Last name, first name and patronymic, passport details of individuals and full details of legal entities. To do this, you need identification documents for citizens and title papers for legal entities.
In case of a paid transaction - financial details of the parties. These are bank statements.
Grounds for obtaining/transferring ownership, details of documentation confirming it. This is a certificate of ownership, as well as documents designed to establish it - a purchase and sale agreement, a warrant, a certificate of inheritance, etc.
Description of the object (for example, for real estate - address, condition, number of floors). Technical passport for the property.
Technical data on the alienation object (for real estate - area, cadastral number, assessment results). Cadastral documentation, an extract from the Unified State Register, and a certificate from the BTI are required.
Confirmation of the presence or absence of encumbrances. Regarding real estate - certificates of family composition, extracts from the house register.
Cost of the alienation object. A document with an assessment by an independent expert or a certificate from the BTI.
Date and place of document preparation.
Information about third parties whose interests are affected by the alienation of property. It is necessary to obtain their consent to carry out the transaction.
Additional information that may be relevant to the parties.
Signatures of each party to the transaction.

What is alienation in civil law? This is the transfer of property (in some cases, rights to it) from one owner to another. Divided into voluntary and forced. Both material objects, securities, real estate, and copyright can be alienated. Each of these transactions has its own individual characteristics.

Procedure for carrying out the alienation procedure

In order for voluntary alienation to be carried out within the framework of the law, it is necessary that the following procedure be followed:

the documents necessary to complete the procedure are being prepared - in addition to the agreement on the basis of which the alienation takes place, the owner’s title documents, technical documents for the apartment, as well as confirmation of the identity of both parties to the transaction will be required. Apartment alienation agreement – what is it? In fact, everything is simple - this is any agreement that gives the new owner the right to formalize property rights (purchase and sale agreement, gift, exchange, etc.);
The agreement must be drawn up in writing, after which it is signed by representatives of both parties in the presence of a notary. The document must indicate mandatory parameters, such as the subject of the agreement, the parties to the transaction, the amount (if it is a sale), etc.;
After signing the contract, it is necessary to re-register ownership rights to the new owner. This is done with the help of an application to Rosreestr, to which additional documents are attached, primarily a previously signed agreement. After the owner changes in the register, the transaction is considered completed.

As for forced alienation, it usually occurs by court decision, and the executor is the Bailiff Service. In any case, the former owner of the apartment must be notified in writing that he has lost his rights to the property, as well as what caused this decision.

If you want to alienate an apartment or are threatened with forced deprivation of the right to it, contact a real estate lawyer for help . This specialist will help with the preparation of all the necessary papers, advise on the correctness of the alienation procedure, and, if necessary, will defend your interests in court.

Basic package of documents for the seller

To carry out the alienation procedure, the seller will need to collect the following package of documents:

A citizen must have an agreement on the basis of which the procedure for re-registration of property rights takes place. This could be a real estate purchase and sale agreement, an apartment donation agreement, an apartment exchange agreement.
If the apartment is in shared ownership, then the citizen will need a written agreement from all co-owners of the property.
Refusal of the co-owners to purchase the part of the apartment being sold.
An extract from the Unified State Register of Real Estate, which indicates everything registered in this residential premises.
Cadastral and technical passports.
Application for the alienation procedure.
An extract from Rosreestr, which indicates the absence of encumbrances on this property.
An extract from the house register showing that there are no debts on utility bills.

Documents must be carefully checked and current at the time of submission to the government agency.

The citizen will also have to submit two applications to the authorities:

Application for transfer of ownership.
Application for registration of property rights for the new owner of the property.

What documents need to be prepared when alienating property?

In order for the alienation of property to be recognized as legal, the parties to the transaction will need to ensure the correct execution and registration of all documents

In order for the alienation process to be correct, and from a legal point of view, such a transaction cannot be canceled, the parties and participants must know what list of documents is necessary.

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On the part of the seller, or the one who alienates, first of all, it is necessary to have a document that confirms his ownership. This can be a purchase and sale agreement, a gift, an inheritance, or a privatization certificate.

If the property is in joint shared ownership, then statements from the other owners will be required that they have been notified of the intentions of alienation and are not against it.

The next thing is the availability of documents from the passport office (district migration service, housing office) about who is registered in the real estate. This is not necessary for commercial real estate.

When conducting a transaction involving the alienation of property, any document or even a certificate may be important; this fact must not be overlooked

If at the time of alienation it is determined that some family members have not been deregistered, then the new owner will have problems with their deregistration. The last thing is the presence or absence of debt for utilities.

Despite the fact that such a certificate is not important and does not affect ownership and disposal, the debt may entail going to court and seizing the apartment or house.

The last document is an extract from the register, which will confirm that at the time of the transaction, the apartment, house or other object is not leased for long-term, there is no arrest or other prohibition on alienation.

If the transaction goes through a notary, then the latter is obliged to check it himself.

There is no need to collect any documents for the person who will become the new owner; the main thing is to check that the buyer has the necessary information.

It is important to know that immediately after concluding an alienation transaction, the new owner must register it in a special state register. And only then will there be a complete transfer of ownership.

Alienation of real estate refers to the process of transferring ownership of it from one owner to a new one. It can be paid or gratuitous.

Why do you need a cadastral technical passport when selling an apartment?

Cadastral and technical passports during the procedure of alienation of real estate are needed in order to:

establish land surveying of an apartment or house;
check the master plan of the property and its full compliance with the actual plan of the apartment;
establish the cadastral value, which is also the estimated value of the apartment during the forced alienation procedure by authorities - the municipality or the state as a whole.

The cadastral document also contains information about the registration of this residential area in the Cadastral Chamber

EGRN - what shows where to get it

An extract from the Unified State Register of Real Estate shows the presence of registered citizens in the apartment that is for sale. Before the re-registration of ownership rights, all persons must be registered. This will be confirmed by an entry in this statement.