Barter agreement

Transfer of ownership of goods exchanged under an exchange agreement

The transfer of ownership of the exchanged goods occurs simultaneously after the fulfillment of obligations to transfer the relevant goods by both parties, unless otherwise provided by law or contract.
At the same time, the legislator gives the parties the opportunity to establish other conditions for determining the moment of transition and emergence of this right.

Since, according to an exchange agreement, there is no payment of money for the purchased goods, the parties to the agreement may not indicate the price of the exchanged goods. In such cases, these goods are called equivalent, unless otherwise follows from the contract.

The party obligated to transfer goods whose price is lower than the price of the goods provided in exchange must pay the difference in prices. However, it should be noted that such additional payment may not necessarily be made in cash. The parties have the right to establish in the contract other options for additional payment and a different procedure for compensation.

The legislator does not establish any specific time frame for the exchange of property. In particular, such conditions are absent and apply to the simultaneous transfer of property by both parties. One party can transfer the goods today, the other after some time determined by the agreement.

Can't reduce the price

In a barter transaction that contains the terms of the purchase and sale agreement, you can demand that the counterparty who supplied the goods of inadequate quality reduce the price (clause 1 of Article 475 of the Civil Code of the Russian Federation). This cannot be done within the framework of an exchange agreement. You can only demand that the counterparty correct the defects free of charge or compensate for the costs of correcting them (clause 9 of Review No. 69).

The parties have the right to refuse to fulfill the barter agreement. This can be done by the customer of services or the contractor without going to court (Article 782 of the Civil Code of the Russian Federation). Moreover, this is possible even if the contract contains a ban on unilateral refusal. This condition does not comply with the law, and the courts do not take it into account.

It is possible to unilaterally refuse to execute a barter agreement only if such a right is directly established in the contract, since by default the law does not give such a right to the parties.

The moment of transfer of ownership of the transferred goods depends on the type of contract. Both in the purchase and sale agreement and in the exchange agreement, this issue can be resolved so as not to apply the general rule on the transfer of ownership, which will operate by default. Thus, as a general rule, under an exchange agreement (goods for goods), ownership passes to both parties only after they both have transferred their goods to each other (Article 570 of the Civil Code of the Russian Federation). Under a purchase and sale agreement (goods for services or work), ownership rights are transferred at the moment of transfer of the thing (clause 1 of Article 223 of the Civil Code of the Russian Federation).

The possibility of canceling a gift is a big disadvantage for the recipient.
When the deed of gift is terminated or the transaction is declared invalid, the donee is obliged to return the object of the donation (clause 5 of Article 578 of the Civil Code of the Russian Federation, clause 2 of Article 167 of the Civil Code of the Russian Federation).
Such agreements can be easily challenged in court in some cases.
Lack of opportunity for the donor to establish encumbrances on the object of donation.
In the absence of close family ties between the parties to the transaction, the donee pays personal income tax (NDFL).
Pros and cons of the exchange agreement Ch. 31 of the Civil Code of the Russian Federation regulates such a transaction as barter. This agreement implies the transfer of ownership of goods in exchange for another from one party to another. In this case, each of the parties is a seller (Article 567 of the Civil Code of the Russian Federation).

Transfer of property Transfer deed is not required Mandatory under the transfer and acceptance act Availability of taxation For the donor - no.

For the donee - yes (except for cases of exemption from payment). For both sides - yes. But there are a number of features under which this tax may not be paid. Exchange or donation of residential premises As a rule, when speaking about transactions for the alienation of real estate, interested parties mean a room, apartment, house, i.e. living space.

Based on the above analysis of contracts for the exchange and gift of real estate, as well as taking into account the peculiarities of the alienation of residential premises, it is necessary to highlight the following:

the object of the transaction will be the residential premises itself, the individual characteristics of which must be reflected in the contract.

Giving and barter

Attention

Within three years after its conclusion, any of the parties can change their mind and make claims against the counterparty, seeking not only its cancellation, but also reimbursement of their expenses. After weighing all the pros and cons, make a decision. Requirements for the form The agreement for the exchange of housing is drawn up in writing. Notarization is carried out at the request of the participants.

What is included in the contract? Participants indicate the individual characteristics of the exchanged apartments, things, the amount of additional payment, the procedure for making it, the timing of relocation, and other details important for the parties. Essential conditions:

subject: which particular apartment (indicating the address, technical characteristics) is changed to another (also indicating individual characteristics) or things (with individualization);
amount of surcharge.

Without specifying these conditions, the agreement is considered not concluded.

When a person sells an apartment to another person and intends to buy from a third person, this is also associated with risk. Money is subject to inflation, and in recent decades we have encountered cases where it was sudden and rapid.

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In the nineties, in 2008, 2014, we had situations where, shortly after the sale, it was impossible to buy housing of the required quality with the proceeds from a previously sold apartment. On the other hand, apartments during a crisis are difficult to sell for an acceptable amount, since buyers do not have enough cash for this.

When moving, a person is faced with the problem of adequately assessing the housing he is purchasing: he does not know enough about the features of life in another city. If you rely on prices published in newspapers, you may get a different situation on the spot.

Petrov in court managed to declare this deal invalid, as a result of which Ivanov and Petrov returned to their previous living quarters. The negative aspects of using such a transaction include the following:

In cases where the goods are not of equal value, the party providing the property of lesser value will have to pay the difference in prices.
The transfer of ownership of the exchanged goods occurs simultaneously after the parties fulfill their obligations to transfer the goods (with the exception of real estate).
Since the rules on purchase and sale apply to exchange, the beneficiaries of the transaction are payers of personal income tax.
The goods transferred to the other party are the common joint property of the spouses.

Exchange or donation of real estate The most common transactions in civil circulation are transactions with real estate (i.e.

It turns out that in exchange for a real apartment, the owner can only receive a transfer of ownership rights to virtual housing. The danger is too great. Power of attorney.

If you are faced with a situation in which it is not the owner of the apartment who is ready to exchange living space with you, but a person acting by proxy, for example, the only heir of a grandmother who is ill and cannot handle the exchange herself, then it is possible that you are dealing with a fraudulent scheme .

The risk is that the principal could have already died by the time of the transaction.

Having a power of attorney in hand, the attorney, on completely legal grounds, before the end of the 6-month period for the heirs to take over their rights, receives from the BTI a certificate of characteristics for the alienation of this apartment and can conclude an exchange transaction. Although, in accordance with Art. 248 of the Civil Code, after the death of the principal, he did not have the right to dispose of his property.

Exchange agreement (equivalent, without additional payment) Execution of a document for the exchange of apartments is carried out in free written form and must contain the following data:

identification data of each participant in the transaction (passport data);
detailed descriptions of residential properties included in the transaction (according to BTI data);
the cost of residential properties determined by the two parties to the transaction based on a personal agreement;
provided necessary data on the package of documents, serving as evidence of the existence of rights to own residential property subject to exchange;
providing written confirmation from both parties that the apartments inspected are suitable in terms of their quality;
conditions for transferring additional payment to the party.

Further, the apartment exchange agreement contains the procedure for the transfer of residential real estate and other data. Options for agreements When the homeowners include minors, the permission of the guardianship authority is required to conclude an agreement (Article 292 of the Civil Code of the Russian Federation).

in the event of a claim being brought against the tenant for termination (or modification) of a social tenancy agreement for residential real estate;
the apartment is the subject of collateral;
the apartment is under arrest;
the apartment is the property of a special fund and is not subject to an exchange procedure;
the right to own housing is disputed in court;
the apartment is located in a residential building intended for demolition or its comprehensive refurbishment for other purposes.

The difference between an exchange agreement and a purchase and sale agreement

An exchange agreement is most similar to a purchase and sale agreement. The main thing that distinguishes these agreements:

each of its parties acts as both a buyer and a seller at the same time (i.e., each party receives the goods it needs, and not just one of the parties);
payment under a barter agreement occurs not in money, but in goods of equal value; if the cost of things differs, then one of the parties to the contract makes an additional payment.

Based on this and taking into account judicial practice, when concluding an exchange agreement, it is important to keep in mind the following.

Since the parties pay each other with goods, and not with money, the rules on purchase and sale that relate to monetary settlements cannot be applied to the barter agreement (Articles 486–489 of the Civil Code of the Russian Federation).

However, if a condition is included in the barter agreement about replacing the fulfillment of a counter-obligation with a condition about payment for goods, then the relationship is regulated by the rules on the sale and purchase of goods (clause 4 of the review of the Presidium of the Supreme Arbitration Court of the Russian Federation dated September 24, 2002 No. 69).

Tax on apartment exchange

For those who are planning to change their apartment for a more suitable one, it is useful to know whether they need to pay tax when exchanging an apartment. Exchanging one apartment for another living space is a kind of two transactions. In the first, the old apartment is sold, in the second, a new one is bought. But under mutually beneficial conditions, the owners can sign an apartment exchange agreement. Since the exchange agreement is considered identical to the purchase and sale agreement, the owner of the old property must pay tax for it. But at the same time, he has the right to take advantage of a tax deduction for new housing.

Representatives of the tax service see the whole situation in their own way. Based on their opinion, it becomes clear that when exchanging an apartment, a person does not spend his own funds, except in cases where an additional payment needs to be made. Therefore, the tax should be calculated only on the amount of payment made, and the right to a tax deduction should not apply to the exchange agreement.

25 Jan 2021 etolaw 1030

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The price of the goods exchanged under the barter agreement

In fact, replacing one apartment with another can be called differently - exchange and barter. Although these words have the same root, they have completely different meanings in housing transactions.

What is what

Exchange of housing is a transaction in which two parties transfer to each other objects of equal value in their opinion, the owners of which they are. In this case, the rights to the property are transferred to each party, similar to a purchase and sale transaction.

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Housing exchange is a transaction under which tenants of state-owned housing exchange apartments and renew rental contracts.

In this case, the consent of the lessor must be obtained, and certain mandatory conditions must be met.

If you want to find out how to solve your particular problem, call: Moscow, St. Petersburg 7 (812) 313-26-64.

The most basic difference is that in my case the housing must be owned. That is, one owner transfers his apartment to another under an agreement, then the transaction is registered in Rosreestr, and the certificates of ownership are redone for the new owners.
During the exchange, housing is municipal; people live in it under a rental agreement. The exchange of social housing is formalized differently - after registering the transaction in Rosreestr, landlords re-issue tenancy agreements for new residents. In this case, only the right to use the apartment passes to the new owners, as was the case with the previous housing.
You cannot exchange municipal housing for your own and vice versa.
Exchange and barter are governed by different laws. The exchange of housing refers to transactions that are controlled by the Civil Code (Chapter 31), and the exchange is carried out in accordance with the Housing Code (Article 72).

The exchange agreement is drawn up in writing, and it must contain the following information:

data of both parties (full name, passport details, registration);
information about the exchanged housing (name, address, area, cost);
on what basis the apartments belong to the parties (most often the number of the certificate of ownership and the agreement under which the apartment was received);
Additionally, you can indicate the features of both apartments - on what floor it is located, the type of house (panel, brick and others),
the presence of a balcony or basement, how many rooms, what kind of heating, what kind of built-in appliances and furniture remain, and others;
It is worth mentioning as a separate point that the apartment is not under arrest or pledged, there are no encumbrances;
a mandatory point - the contract must contain a list of people who had the right to the old apartment (in the new apartment they must have exactly the same rights);
the period during which the parties must vacate the apartments and transfer them to each other.

These clauses are included in every barter agreement. But deals are different, so there are some additional conditions

If additional payment is needed

It is not always possible to find apartments of equal value. In this case, the party whose housing costs less must pay the other party the difference. Moreover, the additional payment can be not only money. You can also transfer securities or some other property.

All this must be indicated in the contract. Sometimes people do not want to pay tax, and they ask not to indicate the amount of the surcharge in the contract. They write that the apartments are of equal value. This is dangerous because after registering the transaction, you may no longer receive the additional payment.

In addition, if the difference in the cost of housing is too obvious, this issue will definitely be of interest - first to the authorities registering the transaction, and then to the tax authorities.

For example, the parties exchange a one-room apartment in an old building for a two-room apartment in a new building, and even in good repair. The contract states that the apartments are of equal value. Obviously, such a transaction may raise suspicions, which will entail various delays and troubles.

It is better to indicate exactly the amount of additional payment in the contract

Additionally, sanctions can be provided in case the additional payment is not paid on time. For example, a certain percentage of the total amount for each day of delay.

In this case, the contract is drawn up as usual. Instead of information about the apartment, information about the share in the apartment is indicated. In this case, the size of the share should be clarified.

An important nuance is that barter is equivalent to purchase and sale, so a share in the apartment must first be offered to the other owners of this apartment. A document confirming this must be attached to the contract. For example, notarized consent of other owners for sale or exchange.

If it is difficult to obtain such consent, you can go another way. By law, the owner must notify the other owners in writing that the share is being sold.

If after a month there is no response, a copy of the letter with a mark on the date of receipt will be proof that all the requirements of the law have been met.

In this case, the consent of the guardianship authorities will be additionally required. To obtain such consent, you will have to prove that the children are moving to better conditions. Also, according to the exchange agreement, children must receive the same number of meters as they owned in the old apartment, or more.

It is better to indicate in a separate clause in the contract that the consent of the guardianship authorities has been received. The details of this consent are also indicated.

In this case, the contract must necessarily indicate information about the site:

cadastral number;
land area;
the purpose of the land on which it is located;
If there are any buildings on the site, indicate them.

Also attached to the contract is a drawing on which the required area is indicated.

In conclusion, it is worth noting that in terms of taxes, an exchange agreement is equivalent to a purchase and sale agreement. This means that the parties will have to account for their “sold” apartments.

If the old apartment belonged to a person for more than 3 years, there is no need to submit a declaration. If it is less, you will have to report.

Dear readers, the information in the article may be out of date, please take advantage of a free consultation by calling: Moscow, St. Petersburg or using the feedback form below.

3 Comments

A meeting with the seller’s wife (husband) is necessary, since in any case they will be required to agree to the transaction. When concluding a transaction, require the consent of your spouse in any case (an apartment was purchased during or before marriage), including from your ex, since the absence of such consent may be a reason for legal disputes.

1. The limitation period for claims to apply the consequences of the invalidity of a void transaction and to recognize such a transaction as invalid (clause 3 of Article 166) is three years. The limitation period for these claims begins from the day when the execution of a void transaction began, and in the event of a claim being brought by a person who is not a party to the transaction, from the day when this person learned or should have known about the beginning of its execution.

Marina, good afternoon! I will add to what my colleagues have said regarding the taxation of income from the sale of an apartment, which is paid by sellers. In this case, since the price of the apartment was indicated in the exchange agreement and the exchange was recognized as equivalent, they have the right to reduce the tax base from the sale of the apartment not by 1 million tax deductions, but by 7 million of the value of the apartment given up under the exchange agreement, previously acquired during the privatization process, for example . cm.

The question was answered over the phone. Raisa Gerasimova. I filed a complaint with the developer, he told me that he was not against changing the apartment, only if the justice would allow it. Can justice prohibit the exchange of apartments? The question was answered over the phone. Ekaterina Alexandrova.

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Zheleznodorozhnaya, 63, apt. 2.1.5. Apartment 2 belongs to Party 2 on the basis of the purchase and sale agreement No. 1 dated July 10, 2014, which is confirmed by the certificate of state registration of rights dated July 11, 2014, series 75 AM No. 476904, issued by the Office of the Federal State Registration Service, cadastre and cartography of Moscow, which was recorded in the Unified State Register of Rights to Real Estate and Transactions with It dated July 11, 2014 No. 154/4.1.6.

Thus, when selling an apartment received under an exchange agreement within the framework of a program for the resettlement of housing subject to demolition, a tax is paid in the amount of 13% of the amount exceeding 1 million rubles, or of the difference between the income from the sale of the specified apartment and the amount of actual costs for its acquisition.

At the same time, there is no provision for determining the period of ownership of the apartment, taking into account the period of ownership of the previous housing (Clause 17.1, Article 217 of the Tax Code of the Russian Federation). Thus, in the case of resettlement of dilapidated (subject to demolition) housing owned by the taxpayer, only the period of ownership of the new apartment is taken into account.

Search for the second exchange participant.
Drawing up an exchange agreement.
Preparation of a package of documents for registration.
Payment of state duty.
Obtaining an extract from the Unified State Register of Real Estate confirming ownership.

Often such transactions are concluded between relatives. But if you need to exchange housing, but there is no suitable one for the transaction, specialized real estate agencies can help.

When drawing up an exchange agreement, it is necessary to clearly state the terms of the transaction. If the objects are of equal value, then it will be important to indicate the period for entering into new rights. When the exchange is unequal, the text of the document indicates the cost of the compensation payment.

When items have different values and one party pays compensation, this amount is recognized as income and is taxed. Its size will be 13% of the difference between the cost of objects. You can avoid payments by filing a tax deduction with the Federal Tax Service or at your place of work.

Is it worth buying an apartment obtained under an exchange agreement with the city with ownership less than 3 years old?

1. The limitation period for claims to apply the consequences of the invalidity of a void transaction and to recognize such a transaction as invalid (clause 3 of Article 166) is three years. The limitation period for these claims begins from the day when the execution of a void transaction began, and in the event of a claim being brought by a person who is not a party to the transaction, from the day when this person learned or should have known about the beginning of its execution. In this case, the limitation period for a person who is not a party to the transaction, in any case, cannot exceed ten years from the date of commencement of execution of the transaction.

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Marina, good afternoon! I will add to what my colleagues have said regarding the taxation of income from the sale of an apartment, which is paid by sellers. In this case, since the price of the apartment was indicated in the exchange agreement and the exchange was recognized as equivalent, they have the right to reduce the tax base from the sale of the apartment not by 1 million tax deductions, but by 7 million of the value of the apartment given up under the exchange agreement, previously acquired during the privatization process, for example . cm.

Main features of the barter agreement

The barter agreement is regulated by the Civil Code of the Russian Federation. In particular, the definition of exchange contains paragraph 1 of Article 567 of the Civil Code of the Russian Federation. Each of the parties to this agreement is recognized simultaneously as both the seller of the goods, which it undertakes to transfer, and the buyer of the goods, which it undertakes to accept (clause 2 of Article 567 of the Civil Code of the Russian Federation).

The main features of an exchange agreement:

paid nature of the transaction;
the consideration given is goods, not money;
the purpose of the contract is to transfer and receive property (exchange);
as a general rule, ownership passes simultaneously;
the goods exchanged are transferred into ownership.

The main purpose of this agreement is the transfer of ownership rights to a specific residential property to certain persons. Its main difference is the fact that the seller of the alienated property receives another property in return, and this happens within the framework of one transaction.

Firstly, an exchange agreement refers to such agreements that are aimed at the transfer of property (as well as a purchase and sale agreement, a gift agreement, a loan agreement, rent, loans, a lease agreement, etc.).

Secondly, under an exchange agreement, property is transferred into the ownership of another party.

Thirdly, an exchange agreement differs from other compensated agreements, under which property is also transferred into the ownership of the counterparty (purchase and sale agreement, loan agreement), by the nature of the consideration. Participants in a barter agreement exchange one product for another.

Fourthly, under an exchange agreement, the ownership of goods received as an exchange (for example, an apartment, a car) passes to each of the parties simultaneously after the obligations to transfer the goods are fulfilled by both parties (Article 570 of the Civil Code of the Russian Federation).

An exchange agreement is one of the contracts aimed at transferring property.

Under an exchange agreement, the property being exchanged is transferred to the ownership (and in certain cases, to the economic management or operational management) of the counterparty.

The peculiarity of the subject of the contract (exchange of goods) is that one product is exchanged for another, and not for money.

Under an exchange agreement, the ownership of goods received as an exchange passes to each of the parties simultaneously after the obligations to transfer the goods are fulfilled by both parties (Article 570 of the Civil Code), and not from the moment the thing is transferred by at least one (Clause 1 of Art. 223 Civil Code).

According to the barter agreement, one person transfers one product to another counterparty in exchange for another in ownership.

The exchange agreement is also sometimes called barter.

When implementing such an agreement, each of the parties is recognized simultaneously as the seller of the transferred goods and the buyer of the goods accepted in exchange.

What is what

Exchange agreement with the city, what you need to know when buying an apartment

If a Party fails to fulfill the obligation to transfer the Apartment free of property, the Party whose right is violated has the right to demand that this obligation be fulfilled within a period not exceeding 5 (Five) working days, or to demand payment by the defaulting Party of a fine in the amount of 10,000 (Ten thousand) rubles .5.5.

Moscow, as recorded in the Unified State Register of Rights to Real Estate and Transactions with It dated February 21, 2011 No. 342/4.1.4. The total area of Apartment 2 is 70 (Seventy) square meters. m, including living area – 67 (Sixty-seven) sq. m. m. Apartment 2 consists of three rooms, located on the thirteenth floor of an apartment building, at the address: 104055, Moscow, st. Zheleznodorozhnaya, 63, apt. 2.1.5. Apartment 2 belongs to Party 2 on the basis of the purchase and sale agreement No. 1 dated July 10, 2014, which is confirmed by the certificate of state registration of rights dated July 11, 2014, series 75 AM No. 476904, issued by the Office of the Federal State Registration Service, cadastre and cartography of Moscow, which was recorded in the Unified State Register of Rights to Real Estate and Transactions with It dated July 11, 2014 No. 154/4.1.6.

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Apartment acceptance certificate

For example, they try to agree with the registrar on the spot (including through an intermediary) that documents for registration are submitted without a Certificate, and the Certificate itself is transferred to the registrar later, separately, at the end of the registration period (i.e. literally the day before expected issuance of registered documents).

But in a number of regions, local branches of the Federal Registration Service require a Transfer Deed as part of the package of documents for registering a transaction. Otherwise, documents are not accepted there. Thus, in these regions, formally, the apartment must be transferred to the Buyer BEFORE he receives ownership of it. This is a kind of legal nonsense, which is gradually getting rid of.

Types of barter contracts

Size of share in real estate.
Natural allocation of share, if any. For example, one room measuring 15 square meters. m. in a three-room apartment with a total area of 74 sq. m. m.
Data on the consent of the co-owners of the property to conclude an exchange agreement.
The need for additional payment and its amount (equivalent in property), if necessary.

In the absence of an indication of the need for additional payment, both real estate objects are considered equal by default. If the property is not equal in value, then the contract must contain data on the amount of additional payment if it will be made in cash or data on other property.

Apartment exchange - one agreement, two birds with one stone

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