Assignment of rights to an apartment. Assignment of ownership of an apartment

Assignment of an apartment is allowed for any type of transaction: under an investment or co-investment contract, as well as a previously concluded sales contract and others. Assignment of rights to an apartment is possible even with mortgage lending. Buyers for this type of transaction can be any individual or organization.

This type of agreement most often occurs at the stage of building a new house. Thus, the assignment of rights to an apartment is a transaction, as a result of which the original party (the seller) assigns to the other party (the buyer) all the rights and possible obligations that the seller has against the third party. The third party is most often the developer. The transaction becomes admissible only if there is no clause in the contract that the assignment of the right to claim an apartment is prohibited.

This transaction in the legal language is called a cession. The person who is the seller is called the assignor, and the buyer is the assignee.

Who is interested in this?

Most often in the conclusion of such contracts, ordinary buyers are interested, since sometimes the sale of apartments in the house of interest is already completed. And there is simply no other way to acquire it in a particular place.

Why sellers are ready to assign their rights? As a rule, the motives are different, we touch only a few.

Why is the apartment sold by assignment of rights?

It is very important to find out the true reason that prompted the seller to go for such a deal. The answer to this question directly depends on how risky such a deal will be. For example, the sale of an apartment can occur because the seller can not (or does not want) to pay the cost of their square meters to the developer. In this case, it is necessary to find out the amount of current debt directly from the developer, as well as the terms of its repayment.

But many sellers of such unfinished residential objects tend to conclude a cession agreement in connection with certain life circumstances. In particular, the seller can obtain an inheritance and no longer needs a home or has received a more profitable financial offer.

Basic views

At the moment, the most frequent types of assignment of rights are:

• Assignment on the basis of an agreement on equity participation;
• Assignment of rights, based on a preliminary contract of sale.

Some legal subtleties

A transaction for the transfer of rights, based on an agreement on equity participation, can be concluded only until the transfer documents are signed for the object of the transaction. At the same time, an apartment can be assigned an unlimited number of times.

Important nuance: the main contract and the contract of assignment must be registered.

When concluding a contract for the second option, the buyer receives a legal right to make demands for concluding with him the main transaction for the sale of a residential object in the future. And also to demand compliance with the terms and deadlines, but has no right to demand the transfer of ownership of the apartment itself.

This is due to the legal subtleties of the preliminary contract. According to him, the seller and the buyer do not make a purchase transaction, but only assume the responsibility to accomplish it in the future. In the event that the concluded pre-sale is canceled, the buyer will not be entitled to receive the apartment even if the full amount of the cost has been paid. The return of the spent money will become possible only in the judicial process.

Assignment of rights is possible from the date when the signing of the preliminary contract of sale occurred, and before the date of signing of the main contract by the parties.

Assignment of rights in mortgages

Assignment of rights to an apartment for mortgage lending is also a fairly common type of such a transaction. According to the current legislation, the owner (mortgagee) of housing has the full right, if the mortgage agreement is not prohibited, transfer their rights to the apartment to another person.

But, deciding to conclude such a transaction, it should be remembered that assignment of rights can not be made without agreement with the bank that acts as a lender. At the same time, the terms of the assignment agreement are put forward by the bank itself and can be changed. Very often the creditor does not keep the credit conditions for the new owner of the apartment.

Acquisition of an apartment under a contract of assignment

Buying an apartment on the assignment of rights is possible only during the construction of the object. The period of possible conclusion of the transaction is regulated by Article 11 of the Federal Law-214 and states that the assignment of rights of demand is allowed from the time of registration of the contract on equity participation until the moment when the parties signed the transfer act for the construction site.

Remember that if the acceptance certificate of the apartment is signed, then the contract of assignment of the right to an apartment can not be concluded. The change of ownership in this case can be carried out only by concluding a transaction on the purchase and sale of a residential facility or by other ways provided by the current legislation.

But until the act is signed, the shareholder has the full right to conclude a cession. A very important point: the seller can enter into agreements on the assignment of rights simultaneously with several potential buyers. This is possible if the apartment has more than two rooms. Such actions of the seller by this law are not prohibited.

The main points of the contract

All the main provisions are governed by the Civil Code of the Russian Federation.

1. The contract can not be concluded orally and is always made in writing. The seller has the right to conclude such a transaction only if it does not contradict the main contract concluded earlier with the developer. Quite often, developers themselves include a clause in the main contract, which clearly states that when concluding a cession it is necessary to obtain its consent to transfer rights to other assignees. If there is no such item, then the buyer should still make sure that the seller has notified (in writing) the company-builder that a transaction of assignment of rights to the object under construction was concluded. Otherwise, upon completion of construction, the housing may be transferred to the previous owner.

2. Due to the fact that the contract on equity participation passes mandatory registration, the contract of assignment must undergo the same procedure. In the event that an agreement on equity participation has not passed state registration, then in the future the developer has every reason to refuse the assignee in its claims.

3. After the contract has passed the state registration procedure, the buyer accepts all rights and obligations listed in the main contract. And bears all possible risks.

4. When concluding a transaction of assignment at the stage of settlements between the parties, the use of banking cells is practiced , and the seller will be able to withdraw funds only after all necessary documents have been reissued.

5. In addition to the signatures of both parties, the documents are signed by the developer. The papers are always certified with a blue seal, indicating that the transaction is conducted with the consent of the developer.

Package of documents for the transaction

After signing the agreement on assignment of rights, the buyer must have the following package of documents:

- the main contract or its notarized copy, under which the assignment was made;

- documents confirming settlements between the original parties to the contract;

- an act of transfer of the above documents;

- consent to a concession from the other party;

- original contract.

Assignment of apartment rights: tax payable

According to the Tax Code (Article 220, paragraph 1), the cession is taxed, which must be paid by the initial investor. The amount that is subject to taxation is calculated on the basis of the total amount of the transaction, and can not be calculated as the difference between the amount of the investment and the size of the assignment.

Quite often there is a situation where the financial obligations to the state of the original buyer shifts to the shoulders of the person to whom the assignment of ownership of the apartment was effected . Usually, the parties agree to split equally these financial costs.

The right of assignment transaction has many subtleties. Therefore, before signing any documents, it is strongly recommended that you consult a lawyer specializing in real estate transactions.