Documents for guardianship when purchasing an apartment

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Guardianship authorities closely monitor compliance with the rights of minor children, especially when selling apartments in which such children are registered or even own them. To be able to sell such housing, you first need to obtain permission from the guardianship authorities for the transaction. Without such a document, no normal realtor will agree to conclude an agreement. And even if he agrees, such a document will have no legal force.

Why do you need permission from the guardianship authorities?

By law, parents, guardians and trustees have the right to dispose of property that belongs to minor children. Including their shares in apartments. However, to ensure that such persons do not abuse their capabilities, guardianship authorities have been created. They monitor such transactions and carefully ensure that as a result of the purchase and sale transaction the child does not lose anything (or, better yet, gain something).

The optimal situation would be in which the child did not have ownership rights to the property being sold, but when purchasing a new apartment, using the proceeds from the sale, the child will have his own share of the property. In such a situation, it is very difficult for the guardianship authorities to find a reason to refuse permission.

List of documents for obtaining permission from guardianship authorities

It is quite difficult to obtain the consent of a guardian to purchase an apartment for a minor, his parents or the entire family as a whole. Therefore, it is recommended to apply for permission only if you have the entire package of documents. The list below is quite extensive, but even it may not be complete. It all depends on the current situation.

List of papers that need to be submitted to the guardianship authorities:

• Passports of parents/guardians/guarantors.
• Passport of the child/children or their birth certificate, if you don’t already have a passport.
• Application for permission to sell an apartment (see below).
• Marriage certificate and/or other documents on the basis of which the child is under the guardianship or trusteeship of the applicant.
• An extract from an account opened in the child’s name to which a certain amount has been deposited. For example, in the amount of the value of his share.
• Documents for real estate that is for sale. If available, you can also provide documents and/or the most detailed description of the apartment/house that will be purchased to replace the property being sold.
• Privatization agreement, provided that the housing was obtained in this way.
• Real estate valuation report (both sold and purchased). This document is not mandatory, but it is desirable so that a specialist from the guardianship authorities can clearly understand whether the child’s new living conditions will be worse than those currently existing.

Allocation of shares to children in mortgaged housing

What if the situation is reversed and you need to take out a mortgage with children's shares? The main problem is that the presence of minor collateral owners is very critical for the bank. The lender will most likely agree to such a deal only when there is no other choice. In other cases, he will try to avoid registering shares for children. Some credit institutions have a direct ban on such transactions.

When it is possible to pledge a child’s share and the consent of the guardianship authorities for a mortgage is required:

1. There is a legal requirement when paying part of the loan with funds from maternal capital or a targeted housing subsidy. In the second case, the inclusion of children among the owners is mandatory immediately upon execution of the transaction. You need to notify the lender about this in advance, otherwise you will be denied a mortgage already at the stage of signing the loan agreement. With maternity capital, things are a little simpler.
2. There is a requirement from the guardianship authorities to allocate shares to children due to the simultaneous sale of other housing.
3. Another case when it is necessary for the guardianship to approve a mortgage is collateral for existing housing on a loan. For example, you take an apartment under construction, and during the construction period you mortgage another property in which children are the owners.

When using maternity capital or state subsidies, the parent must draw up a notarial obligation for the guardianship authorities or the Pension Fund. In it, he undertakes to allocate shares to the children. When using a housing subsidy, guardianship requires that the condition be fulfilled immediately when completing the transaction; for maternal capital, you can wait for the loan to be fully repaid.

If you ignore these requirements, you will face serious troubles from supervisory government agencies. In this case, the client has the right to contact the bank and ask for permission to allocate a share on an existing housing loan, but it is not a fact that the answer will be positive.

By law, it is necessary to obtain the consent of the guardian for a mortgage before signing the agreement at the bank. When you have the document in your hands, immediately take it to your credit manager and wait for a response about the possibility of entering into a deal. The participation of a notary is required only if you are purchasing an apartment in shared ownership.

Recommended article: Spouse's consent to a mortgage

Information. Minors from 14 to 18 years old enter into transactions with the written consent of their legal representatives - parents, guardians ().

What mortgage guardianship documents will be required from the borrower:

• parents' passports;
• certificate for the child or his passport (if available);
• application, including from a child over 14 years of age;
• a document confirming the approval of the mortgage application by the bank indicating the essential parameters of the loan;

• draft purchase agreement;
• a notarial obligation to allocate shares to children for the mortgage guardianship authorities (only if the allocation of shares will be carried out after the mortgage has been paid off in full);
• title documents for the property being purchased and sold (if there is a counter transaction).

If at the same time you are selling real estate owned by children, you can immediately obtain permission from the guardianship authorities for the mortgage and for the sale of property.

Will I need permission from the guardianship authorities to purchase an apartment in a new building? Yes, if the loan agreement includes collateral for the constructed living space. Moreover, it is necessary to obtain the consent of the government agency at the stage of signing documents with the bank. That is, when the apartment is not actually built, but property rights are taken as collateral.

Drawing up an application

An application for permission is drawn up directly at the guardianship department. There is little point in preparing it in advance. Moreover, this document does not have a strictly fixed form, and it may differ from department to department. The sample below is provided for informational purposes only. You can try to fill it out and contact the guardianship authorities with a completed application, but with a high degree of probability it will still have to be rewritten according to the sample that will be provided by the guardianship.

But one statement is usually not enough. Specialists from the guardianship authorities can invite parents/guardians/trustees to a conversation during which they will describe the situation, why they are selling the apartment, what they plan to do next, and so on. Often a child is also present at these meetings (if he is 14 years old or older). His opinion is also taken into account when subsequently issuing a permit (or refusal).

In some cases, home buyers are also invited to these meetings. This is necessary, first of all, to minimize their risks, so that they understand exactly what work is being carried out, to what extent the guardianship authorities are ready to provide permission and under what conditions.

Deadline for obtaining permission

Buying an apartment through guardianship is a rather complicated and lengthy procedure, although not always. If, as part of the investigation, it turns out that the child is really ready to sell the apartment, that he will have better conditions in the new place, and so on, then, if desired and with some luck, he can cope in just a few days.

Example : A family, even before selling the apartment in which they currently live, purchased a luxury house (or another apartment, much better and larger than the existing one), which is located in a good area. The new housing has all the conditions for a child’s comfortable stay, including a separate room, which is registered as his property, despite the fact that in the old apartment the child was simply registered and did not have ownership rights. In such conditions, permission from the guardianship authorities can be obtained in record time, because the fact that the child’s rights are not infringed, and the conditions will be better, is obvious.

In other cases, the decision may take several weeks, or even a whole month. An exception is made for those situations when some of the documents provided to the guardianship authorities have a certain “expiration date”. Then the guardianship will strive to issue permission earlier than this period. But if you manage it in such a way that the guardianship does not have time for a detailed consideration of the application (extend the deadline so that the guardianship has literally a few days left), there is a serious probability that a refusal will follow.

On average, when it is necessary to obtain permission from the guardianship authorities, the term of the transaction for the purchase and sale of an apartment extends for a couple of weeks.

Considering many factors, features and nuances, a significant part of which depends on the current situation and is unique, you don’t even have to try to get permission from the guardianship authorities without the help of an experienced lawyer. At a free consultation, specialists will point out those points that require particularly close attention. They are ready to act as representatives of the client, defending his rights in the guardianship authorities, as well as accompanying the entire procedure for the sale of real estate.

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Author of the article

Natalya Fomicheva

Website expert lawyer. 10 years of experience. Inheritance matters. Family disputes. Housing and land law.

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Refinancing a mortgage with children's shares

If you already have a mortgage, and children have shares in the collateral, you have the right to refinance it. But here the same problems will arise as when obtaining a housing loan. What to do for borrowers who want to reduce their loan burden and transfer debt to another bank:

1. Obtain the consent of the creditor and guardianship to pledge real estate partially owned by children. If this condition is met, we can hope that the refinancing will be successful.
2. If the bank categorically refuses such collateral, consider the option of removing the encumbrance from the apartment. This can be done by offering the lender another property or by issuing a guarantee.

It will not be difficult to obtain permission from the guardianship authorities to refinance your mortgage, because they have already issued you a similar document once. For them, only a change of mortgagee will occur, so there is no need to worry about consent. What documents should be provided to the guardianship for mortgage refinancing:

• parents' passports;
• certificate for the child or his passport;
• the bank’s consent to refinance the existing mortgage;
• application from the borrower;
• documents for the apartment (cadastral passport, extract from the register of rights, foundation agreement, etc.).

Recommended article: How to buy an apartment with a military mortgage

The most difficult thing is to refinance a mortgage for which maternity capital funds have already been allocated. The fact is that the notarial obligation to allocate shares to children must be fulfilled within six months after closing the loan (ground -).

However, the borrower will not be able to do this, because the apartment will again be pledged, only to another bank. Accordingly, the mortgage payer and the financial organization will face serious claims from the Pension Fund and inspection authorities. Such real estate cannot be considered a full-fledged collateral, because important legal obligations have not been fulfilled in relation to it.

If the client, before refinancing the mortgage, registers part of the apartment for the children, and the bank places an encumbrance on it, the risks will arise for the lender. If the client stops paying the debt, it will be difficult to sell the property. Although there are such cases in judicial practice, therefore it is impossible to take mortgage repayment lightly.