How is a share in an apartment allocated to children?
How to allocate shares to children in an apartment? The size of the share is not regulated by law. In practice, children are allocated equal shares.
When the borrower pays off the debt and removes the encumbrance from the premises, according to the law, he must allocate shares to the children within six months. This period is specified in the notarial obligation, previously executed by a lawyer, when repaying a mortgage loan using maternity capital funds. The original agreement remains with the owner, and a copy remains with the Pension Fund.
Shares are distributed to all family members. The law does not specify the specific size of the share. Lawyers and courts recommend that the owner allocate a share size no less than the amount of maternity capital. If an apartment (new) is purchased with the sale of an old home where the children’s shares were indicated, then the new part of the property should not be less than the previous one.
In practice, the most common option for allocating shares is:
- An equal number of them - ¼ for each family member.
- Shares calculated according to sanitary standards. These figures vary by region. For example, in Moscow it is 18 meters.
What share does the spouse receive?
The division of shares is carried out under a notarized obligation on the initiative of the owner of the MK. The main task of the owner of an MK is to determine the size of shares between family members. In this case, both parents and children must participate in the separation. Consequently, the spouse has the right to count on part of the acquired property.
In this case, the spouse has the right to refuse the assigned share of the real estate upon signing the corresponding refusal. The spouse can transfer his share to both his wife and children.
Mortgage
In this situation, the allocation of shares to all family members occurs as follows:
- The borrower pays off the mortgage.
- Receives a certificate from the bank stating that he no longer owes it.
- Through the MFC, he submits this paper to Rosreestr, along with a package of documents.
- After 10 days, excluding weekends, he submits an extract from the Unified State Register of Real Estate. No duty is paid for this.
- A share is allocated to children for six months.
- Contact Rosreestr through the MFC to document the shares.
These are the actions of the owner when allocating shares to children using maternity capital. But not only in this situation, the owners divide the premises into shares.
Mortgage and DDU
The issue of allocating a share to children is relevant if a DDU (maternity capital funds) agreement was concluded with the developer using escrow accounts for innovations from July 1, 2021. But the innovations do not affect the duties of the father and mother to divide the home they have accepted into shares assigned to the children.
Allocation of a share in another apartment (new, purchased) is also mandatory. We must not forget about allocating a mandatory share to the child if the parents managed to sell the previous home (only with the consent of the guardianship, if there was a share of minors in the apartment) and bought a new one with improved living conditions.
IMPORTANT: the share of children in the new housing should not be less than what was in the old one.
Only the law, taking into account the nuances, can oblige the allocation of shares to children and family members of the parents. If the price of the new apartment is higher than the previous housing, the % ratio of shares remains at the same level.
Example: a family lived in an apartment that cost one million rubles. The child's share was 1/3. The apartment was sold. And in new housing, a minor is also entitled to 1/3, even if the cost of the property is 2 million rubles.
Agreement on donating shares to children using maternity capital
The transaction for allocating shares to children in its meaning refers to a gift agreement, since the parties transfer ownership of the property free of charge.
Children can accept property only with the consent of their legal representatives , whose role must be their parents. When drawing up a gift deed or agreement in the text of the document, the parent signs for himself and for his minor children. If a citizen is over 14 years old, he must independently be present when registering the transaction. However, all documents must be certified by the signature of the parent.
The obligation can be fulfilled in any way - by agreement or gift deed. The legislation indicates that shares are determined by agreement between family members, but in this case it is not the document itself that is meant, but the circumstance in which citizens are endowed with ownership rights in property.
At the same time, the legislation does not contain such type of agreement as an “agreement on the allocation of shares.” On the other hand, citizens are free to enter into an agreement and have the right to formalize the transfer of ownership using any title document that does not contradict the law.
Where to go
The issue of allocating shares to children on maternity capital is carried out according to a certified agreement. The participation of a notary is necessary if each family member is assigned their own share. The shares are given to the children, and the common property is divided between the husband and wife.
Without a notary, you can allocate a share if the child is 3 years old. Maternity capital funds are transferred as the missing amount for the purchase of an apartment for sale and purchase. An agreement is drawn up with the seller of real estate, according to which the cost of the home in some part of it will be paid with funds from maternity capital.
Share size
Most often, real estate is divided proportionally between all family members - ¼ or 1/5 shares.
However, this condition is not specified in the legislation; therefore, the certificate owner has the right to independently determine the appropriate proportions. When dividing shares, it is worth considering the fact that there are at least 6 square meters per citizen. In addition, local authorities independently set minimum square meters when determining shares. Average figures range from 9 to 13 squares.
When a child turns 18 years old, then he has the right to refuse a share of real estate. In addition, parents also have the right to refuse part of the real estate in favor of their children.
When implementing the obligation, it is worth taking into account natural and officially adopted children. If the child was born from a previous marriage and was not adopted by the spouse, then the parents are not required to allocate a share to the child.
What to include in a notarial undertaking
Allocation of shares to children without a notary does not imply the signing of an agreement that has a form strictly defined by law. The agreement is drawn up arbitrarily, but it must reflect its essential terms, as well as data on the subject. For example, allocating a child’s share in mortgaged property.
Agreement details:
- Passport details of homeowners.
- Information about children.
- Housing data. In particular, the basis for acquiring property rights.
- The essence of obligation.
- The amount of ownership shares allocated to children in the apartment.
As additional clauses, the document may specify the rights and obligations of the parties to the agreement. As well as the number of copies of the document, an indication of the person who bears the costs associated with paying remuneration to the notary.
Methods of fulfilling an obligation
Parents can, in accordance with a previously concluded agreement, transfer shares to their children, as well as donate them.
Donation agreement
Donation agreement: parents, having registered the apartment as shared ownership, are obliged to allocate parts to the children. They must do this with a notary. This point was not affected by the summer changes in donations for 2021.
IMPORTANT: if a husband and wife bought an apartment, it is not in shared ownership, but in common ownership. And here you cannot do without the help of a notary. This is explained by the fact that first parents allocate their shares of joint property, then they give part of the housing to their children.
But it should be understood that a notary is not required if parents allocate shares using maternity capital funds. In all cases, lawyers recommend registering transactions with a notary, although this is costly for the parties.
Example: a couple bought an apartment with a mortgage. They registered their housing as joint property. After the birth of their second child, they pay part of the debt obligation with maternity capital.
In this situation, it is not necessary to go to a notary. It is enough to draw up an agreement that defines the procedure for determining the shares. The document states that the share of the spouses (husband and wife) is under joint ownership. Each of the children is assigned a 1/6 share, the remaining is issued in the amount of 1/3 to the spouses. Based on the order of the Ministry of Economic Development dated December 16, 2015, number 943, this agreement must be submitted to Rosreestr.
How much does it cost to allocate shares to children from a notary?
If a citizen purchases housing using maternity capital funds, but it is not possible to distribute the shares immediately, then initially it will be necessary to pay notary services for certifying the obligation in the amount of 500 rubles .
The price for certification of an agreement on the allocation of shares by a notary, according to the decision of the Ministry of Finance of the Russian Federation No. 03-05-06-03/59074 dated October 11, 2016, should be 500 rubles . However, notary offices do not always take this message into account and set tariffs as for transactions subject to assessment. According to paragraphs. 5. clause 1. art. 333.24 of the Tax Code of the Russian Federation, the amount of such certification is 0.5% of the value of the property , but not less than 300 rubles and not more than 20,000 rubles.
Payment of the state duty is calculated from the cadastral or appraised value of the property, at the discretion of the owner.
For all of these transactions, a notary fee is also subject to payment for actions of a legal and technical nature . The legislation does not establish the amount of payment for these services, so notaries independently set the appropriate prices. Basically, their size depends on the complexity of drawing up the contract and the region of location.
Responsibility for failure to fulfill an obligation
Control over the expenditure of maternity capital is weakly expressed. The same applies to obligations to allocate shares to stepchildren. In theory, the parties are responsible for violating the terms of their obligations. For example, if the shares are not registered on time, the prosecutor’s office may look into the case. And if fraudulent actions are seen in the parents’ actions, liability arises under the Criminal Code of the Russian Federation.
If the parents have not registered shares for their children because they plan to sell the housing they recently purchased, Rosreestr will reject such a sale and purchase transaction and transfer the materials to the Prosecutor’s Office.
In addition, transactions related to violation of obligations may be declared invalid in court proceedings.
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Is a child necessary for the transaction?
Both the gift transaction and the purchase and sale transaction require the participation of both parties to the contract. For a child under 14 years of age, the contract is signed by a legal representative - one of the parents. After 14 years of age, a citizen independently signs an agreement, acting with the consent of a legal representative. That is, the buyer or donee will have two signatures in the document - his own and his parent’s.
State registration of a transaction usually requires notarized copies of the birth certificates of the purchasing children if they are under 14 years of age. Check with the specific MFC about the need for these documents.
