Is it possible to replace an apartment purchased under a shared participation agreement?

Assignment of an apartment is one of the options for selling rights to housing that is under construction. Many people mistakenly believe that the ownership rights to the property are being sold. In practice, things are a little different. During the construction of an apartment building, there are no ownership rights to the apartments, and therefore the object of the transaction is the rights of claim. Initially, the rights of claim arise from those who first signed the equity participation agreement (DPA). The owner can exercise his rights in 2 ways:

• take ownership of the apartment after the delivery of the property;
• sell your rights of claim to third parties - in favor of a legal entity or individual.

Features of the assignment of an apartment

Buyers of receivables can be individuals and legal entities. The assignment of rights can be carried out only after the buyer pays the full cost of the contract or transfers part of the debt under the DDU to the new owner.

Regulatory framework

The procedure for assigning an apartment is regulated by the current legislation of the Russian Federation:

• 214-FZ dated December 30, 2004 in the latest edition - in Art. 11 of the Law prescribes the procedure for assigning rights of claim under the DDU.
• Chapter 24, paragraph 3, Article 388-390 of the Civil Code of the Russian Federation - the conditions for the assignment of claims are regulated, the forms of concessions and the responsibility of the assignor are prescribed;
• Art. 279 of the Tax Code of the Russian Federation - prescribes the main features of determining the tax base when assigning rights of claim.

Stages of assignment of an apartment in a new building

The transfer of rights to claim an apartment in a house under construction has several stages:

1. Formation of a package of documents - DDU, permission from the bank, written consent of the second spouse (in case of joint ownership), documents on repayment of debt to the developer, permission to assign rights from the developer, etc.
2. Signing a contract - preparing an assignment agreement indicating all the details (address of the residential complex in Krasnodar, dates of conclusion, assessment of property rights, payment procedure, etc.).
3. Making payment - paying the price of the assignment agreement or transferring the debt to the construction company to the new owner.
4. Registration of an agreement with Rosreestr is the final stage of obtaining rights of claim to a property.

To complete the transaction, it is necessary to obtain permission from state guardianship authorities (if a minor has rights to claim), the second spouse, and a banking institution. Transfer of rights of claim, according to Art. 11 214-FZ is possible even with debt, but with the consent of the developer.

Types of assignment of real estate

1. From an individual. Most often, this option of transferring housing in a new building becomes relevant when the shareholder loses the opportunity to continue paying the debt under the DDU or his life plans have changed.
2. From a legal entity. The investor invests funds before construction begins and resells them at a profit to individuals to receive legitimate income.

How to properly sell a mortgaged apartment and buy a new one on credit

There are often cases when the owner of an apartment purchased with a mortgage decides to part with his property before he has paid off the loan. At the same time, purchasing a new home will also require attracting credit resources. What problems arise when organizing transactions of this type?

Where to get money

Step one. You need to determine the value of your apartment. This can be done using an online calculator or by contacting a real estate agency. Next, calculate what additional payment will be required to purchase the desired home. By checking with the bank the balance of the current loan, you can assess the possibility of increasing the debt by the required amount.

The number of mortgage transactions with housing in Russia is growing rapidly

According to the Ministry of Construction, the volume of mortgage issuance in Russia in September increased compared to September last year by 40-50% - up to 180-190 billion rubles. In total, about 100,000 mortgage loans were issued in September, said Mikhail Men, head of the Russian Ministry of Construction. More mortgage loans were issued only in December 2014, AHML experts calculated.

According to the agency, over nine months, citizens received about 700,000 mortgage loans worth almost 1.3 trillion rubles. Earlier, the Bank of Russia reported that over eight months this year, more than 600,000 mortgage loans worth 1.1 trillion rubles were issued in Russia. Moreover, since May 2021, the market has been growing at a rate close to 40%.

According to the capital's realtors, about 70% of transactions with apartments in Moscow involve mortgage loans.

Technically, it is most convenient to apply for a new loan at the same bank that issued the existing loan. But this approach is not always economically beneficial: lending conditions are constantly changing, and there is a high probability that the rate at another bank will be lower.

However, it is more difficult to obtain approval for a loan for a significant amount from a new bank, since the borrower must reflect the obligations on the existing loan in the application form he fills out. At the same time, what is important for a financial institution is not so much the size of the debt balance as the ratio of payments to the borrower’s income.

There is no legal prohibition on taking out a second mortgage, but the size of the new loan is strictly limited by the income of its recipient. Each bank determines the maximum acceptable payment-income ratio itself, but usually this figure is about 50-55%. For example, if with a salary of 100,000 rubles.

you already have a loan with a monthly payment of 50,000, you will most likely be denied a new loan.

There is a way out of the situation: you can agree to obtain a mortgage from a new bank without taking into account the size of the previous debt, but with a suspensive condition. Today, competition in the financial market is quite high, so there is a high probability that a loyal bank will accommodate the client halfway. He can approve a loan, making it a condition that the borrower repay the existing debt.

Step two. In parallel with the search for a mortgage bank, you should put your property up for sale.

According to our data, currently the average exposure period on the secondary market is about 100 days. However, the bank’s decision is valid for only three months.

Perhaps, in order to find a buyer as quickly as possible, you will have to offer him a discount from the market price, especially if it was not possible to remove the encumbrance from the apartment.

Two schemes for one transaction

Step three. When a buyer has been found, you can begin preparing the transaction. There are two schemes for selling an encumbered apartment on the market, in which three parties are involved (seller, buyer and mortgage bank). It is almost impossible to carry out such a procedure without the help of professionals (realtor, lawyer, real estate transaction registrar).

The first scheme involves purchasing an apartment through a change of mortgagor. This transaction takes place with the participation of the creditor bank using two depository cells. The first will include money in the amount necessary to repay the loan, and the second will include the remaining cost of the apartment.

The bank must agree to conduct a purchase and sale transaction. The parties sign the agreement and send it for registration with Rosreestr.

After registering the transfer of ownership, the buyer assumes a collateral obligation, and the seller withdraws money from the first cell to pay off the loan. The bank issues the redeemed mortgage to the buyer.

Having presented it, the new owner of the apartment receives an extract from the Unified State Register of Real Estate about the absence of an encumbrance. After this, the seller receives the right to access the cell with the second part of the money. This path is the least risky for all three parties to the transaction.

If the bank refuses to sell the mortgaged apartment to the borrower, another scheme can be applied. It involves the buyer repaying the loan to pay for the purchased property. The difficulty is to find a client with “real money” who will be ready to give an advance in the amount of your mortgage debt. The lower the loan balance, the greater the chance of finding a buyer.

To protect the payer, the parties enter into a preliminary purchase and sale agreement, which clearly states the terms of the transaction. The buyer repays the loan for the owner of the apartment.

This is reflected in the purchase and sale agreement in the form of an advance payment or a deposit (which is more severe, since it implies a double return if the transaction does not go through). Having received the money, the bank sends an application to remove the encumbrance from the apartment and agrees to the transaction.

The parties sign an agreement, after registration of which the seller receives the remaining amount.

More than half of the apartments in Moscow are going on direct sale

According to data, currently on the secondary market in Moscow the share of apartments in the “direct/free sale” category is 51.1% of the total supply, the share of “alternatives” is 48.9%. Three years ago the ratio was 27.3% and 72.7% respectively.

In quantitative terms, the volume of “alternative” properties put up for sale decreased by 46.2%, while those offered for direct sale increased by 50.3%. The average declared price for Moscow secondary apartments has decreased since February 2015 (when its historical maximum was reached - 200,200 rubles per sq. m.

m) by 10.5% (based on real transactions - by 22%). “The changed price environment has led to the fact that today a potential participant in an alternative transaction does not have the threat of depreciation of the proceeds from the sale of his property while the search for new housing is underway.

Accordingly, people are no longer afraid to delay the sale and purchase of real estate: they “go to cash” without fear, realizing that tomorrow a suitable two-room apartment will cost less, and in another six months it may be enough, relatively speaking, for a three-room apartment.

As a result, the number of direct sales and direct purchases increases. It cannot be said that the “alternative” has outlived its usefulness: a significant number of people, for various reasons, are still interested in the sale and purchase of housing taking place simultaneously.

However, the model of behavior of market participants has changed, and alternative transactions have become less in demand,” says Sergei Shloma, director of the secondary market department at Inkom-Real Estate.

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This scheme is convenient for the bank and the owner, but somewhat risky for the buyer. After the encumbrance is removed from the collateral, the seller may change his mind and abandon the transaction. Then his partner will have to demand the sale of the apartment through the court. There is a threat that the deal will be delayed for an indefinite period.

Choosing a new home

Step four. While the deal to sell the apartment was being prepared, you looked for a new home. It is much more convenient if the selected object does not pull a “chain” with it, but is on free sale.

Having the bank's decision to issue a loan in hand, you should collect the necessary documents for the apartment, order an assessment of the property and obtain the consent of the lender.

When searching for real estate in a building under construction, you should focus on the list of new buildings that have already been accredited by a financial institution. This will speed up the approval of the property and simplify the transaction.

When choosing an apartment on the secondary market, make sure that it is not mortgaged with another mortgage bank. Otherwise, the deal will be practically impossible. But it is convenient to find an object that is sold by the bank of your choice.

Financial institutions put up mortgaged apartments for sale, posting information about them on special display sites or on their own page on the Internet. This minimizes legal risks, since the history of the property has already been verified by specialists from the mortgage bank.

In addition, you can count on a discount on the market value of housing. The bank selling the mortgaged apartment may provide a discount or offer a loan on more favorable terms.

Source: https://www.vedomosti.ru/realty/blogs/2017/10/12/737404-prodat-ipotechnuyu-kvartiru

Advantages and disadvantages of assigning an apartment

How much does assignment of rights cost?

The set of costs for the purchase/sale of rights of claim to a real estate property for individuals and legal entities must include - state duty, costs for a notary, lawyer, commission from the developer, taxes.

An example of calculating the cost of transferring an apartment in Krasnodar

The shareholder entered into legal relations with the developer through a DDU in the amount of 2 million rubles. and immediately makes the payment. A year later, he decided to assign the rights to claim the apartment for 3 million rubles. According to Art. 279 of the Tax Code of the Russian Federation, the tax base is the difference between the price of the contract and the amount of the assignment, i.e. 3 million - 2 million = 1 million rubles. This means that income tax will be charged on 1 million rubles. and amount to 13%, i.e. 130 thousand rubles.

Replacing an apartment according to DDU

Deadline for transfer by the developer of a shared construction project

The DDU agreement under Federal Law 214 was concluded in November 2011. The Buyer paid the Developer the entire cost of the apartment in a lump sum on time (bank loan funds). The contract specifies the responsibility of the developer under Federal Law 214 for each day of delay in the transfer of the apartment. as 1/150*Central Bank refinance rate*cost of the apartment. According to the agreement: “Object” is an apartment building. “The Developer is obliged to ensure that the Property is put into operation no later than December 31, 2012. No later than 6 months after receiving permission to put the Facility into operation, subject to proper fulfillment of payment obligations by the participant, transfer the apartment to the participant according to the acceptance certificate.” Permission to put into operation was received by the developer on November 7, 2013. The buyer received notification of the need to accept the apartment on January 16, 2014. The transfer and acceptance certificate proposed by the developer contains the phrase “All conditions and obligations of the parties under the agreement have been fulfilled in full. The parties have no mutual claims." In November 2013, the developer sent the buyer an additional agreement with a new deadline for putting the house into operation (postponement by 6 months), which the equity holder did not sign. Please help me with the questions: 1. Can the buyer even claim a penalty under Federal Law 214, citing a violation of the deadline for transferring the apartment and counting the penalty from 07/01/2013 (12/31/13+6 months)? Taking into account the fact that the commissioning permit was actually received by the developer on November 7, 2013, the commissioning period in the contract is December 31, 2012, Federal Law 214 regulates precisely the period of transfer of the apartment to the buyer. Based on what rules can the court determine in this case the period for transferring the apartment under the contract as the actual date of receipt of permission to open the house (November 7, 2013) + 6 months, and not the date of commissioning the house under the contract (December 31, 2012) + 6 months? 2. If the buyer signs the proposed Acceptance and Transfer Certificate as amended by the Developer (i.e. with the words “all conditions and obligations of the parties under the agreement are fulfilled in full. The parties have no mutual claims”) - then when filing a claim in court for collection penalties due to failure to comply with the terms of the contract regarding the deadline for transferring the apartment - won’t the court, relying on the signed act with the specified phrase, refuse to satisfy the buyer’s claim? If there is a possibility of refusal, then referring to what standards? Is it possible to leave in the act only the words “all conditions and obligations of the parties under the contract have been fulfilled in full” so that the court does not refuse to satisfy the claim? The developer is considering our proposals for a long time, but we need to accept the apartment and begin renovations.

Why should you contact us?

1. We check the reputation of the developer in the interests of buyers. We establish the fact that the construction company is at the stage of bankruptcy. We study the facts of open criminal cases. We confirm the fact that the developer has an impeccable business reputation.
2. We take into account all the nuances to make a safe transaction. We prepare a package of documents in accordance with legal requirements. We are checking the number of owners of claims. If minors are included in the child care home, then we help obtain permission to sell from the guardianship authorities.
3. We will help you choose the optimal apartment. Our company will help you choose the ideal housing for you in Krasnodar during the construction of an apartment building.

If you have questions or want to quickly and reliably buy/sell claims, please contact our specialists. They will provide detailed advice. On our website you can find layouts and prices for all new buildings in Krasnodar.