Assignment of an apartment is allowed for any type of transaction: under an investment or co-investment agreement, 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 individuals or organizations.
This type of agreement most often occurs at the stage of construction of a new house. Thus, the transfer of rights to the apartment is a transaction, as a result of which the original party (seller) assigns to the other party (buyer) all the rights and possible obligations that the seller has with respect to the third party. The third party is most often the builder. A transaction becomes valid only if the contract does not contain a clause that assignment of rights to claim for an apartment is prohibited.
This transaction in legal language is called cession. The person who is the seller is called the assignor, and the buyer is the assignee.
Who is interested in this?
Most often, ordinary buyers are interested in concluding such agreements, as sometimes the sale of apartments in the house of interest to them is already completed. And there is simply no other way to acquire it in a particular place.
Why are sellers willing to transfer their rights? As a rule, motives are different, we will touch only a few.
Why is the sale of apartments on the transfer of rights?
It is very important to find out the true reason that prompted the seller to make 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 may be due to the fact that the seller cannot (or does not want) pay the cost of his square meters to the developer. In this case, you should definitely find out the amount of current debt directly from the developer, as well as the timing of its repayment.
But many sellers of such unfinished residential properties seek to conclude an assignment agreement in connection with certain life circumstances. In particular, the seller can receive an inheritance and no longer needs housing or received a more favorable financial offer.
Main types
Currently, the most common types of transfer of rights are:
- assignment based on an equity agreement;
- assignment of rights based on a preliminary contract of sale.
Some legal subtleties
The assignment transaction, which is based on the equity agreement, can be concluded only until the moment when the transfer documents for the transaction object are signed. Moreover, an apartment can be assigned an unlimited number of times.
An important nuance: the main contract and the assignment contract must be registered.
When concluding an agreement according to the second option, the buyer receives the legal right to submit requirements for concluding with him the main purchase and sale transaction of a residential property in the future. And also demand compliance with the conditions and deadlines, but does not have the 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 complete the purchase transaction, but only assume the responsibility to complete it in the future. In the event that the concluded preliminary purchase and sale is terminated, the buyer will not be entitled to rely on an apartment for the transfer of rights, even if he has paid the full amount of its value. A refund of the money spent will only be possible in a lawsuit.
Assignment of rights is possible from the date when the preliminary contract of sale was signed, and until the date the parties sign the main contract.
Mortgage Assignment
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 (pledge holder) of housing has the full right, if it is not prohibited by a mortgage agreement, to transfer his rights to the apartment to another person.
But, deciding to conclude such a deal, it should be remembered that the assignment of rights cannot be made without the consent of the bank, which acts as a creditor. In this case, the terms of the assignment agreement are put forward by the bank itself and may be changed. Very often, the lender does not maintain the loan conditions for the new owner of the apartment.
Acquisition of an apartment under an assignment agreement
Buying an apartment for the transfer of rights is possible only during the construction of the facility. The period of the possible conclusion of the transaction is regulated by Article 11 of the Federal Law-214 and states that the assignment of claims is allowed from the time of registration of the share agreement until the moment when the parties signed a deed of transfer to the construction site.
Remember that if the acceptance certificate of the apartment is signed, then the contract for the transfer of the right to the apartment can no longer be concluded. The change of ownership in this case can only be carried out by concluding a transaction on the sale of a residential property or by other means provided for by applicable law.
But until the act is signed, the shareholder has every right to conclude a cession. A very important point: the seller can conclude agreements on the transfer of rights simultaneously with several potential buyers. This is possible if the apartment has more than two rooms. Such actions of the seller are not prohibited by this law.
Highlights of the conclusion of the contract
All basic provisions are regulated by the Civil Code of the Russian Federation.
1. The contract cannot be concluded orally and is always executed in writing. The seller has the right to conclude such a transaction only if this 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 upon the conclusion of the assignment, it is necessary to obtain his consent to the transfer of rights to other assignees. If there is no such item, the buyer should still make sure that the seller has notified (in writing) the developer company that a deal has been concluded for the transfer of rights to the object under construction. Otherwise, upon completion of construction, housing may be transferred to the former copyright holder.
2. Due to the fact that the share agreement is undergoing mandatory registration, the assignment agreement must undergo the same procedure. If the agreement on equity participation has not passed the state registration, then in the future the developer has every reason to refuse the assignee in his requirements.
3. After the contract has passed the state registration procedure, the buyer assumes all rights and obligations, the list of which is in the main contract. And carries all possible risks.
4. When concluding the assignment transaction at the settlement stage between the parties, the use of bank cells is practiced , and the seller will be able to withdraw funds only after re-issuing all the necessary documents.
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 carried out with the consent of the developer.
Package of documents for the transaction
After signing the agreement on the assignment of rights, the buyer should have in his hands the following package of documents:
- the main contract or its notarized copy, according to 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 the assignment from the second party;
- original contract.
Assignment of rights to the apartment: tax payable
According to the
Tax Code (Article 220, paragraph 1), cession is taxed, which must be paid by the original investor. The amount subject to taxation is calculated on the basis of the total transaction amount and cannot be calculated as the difference between the investment amount and the size of the assignment.
Quite often, a situation arises when the initial buyer transfers financial obligations to the state on the shoulders of the person to whom the transfer of ownership of the apartment was made. Typically, the parties agree to equally divide these financial costs.
The assignment transaction has many subtleties. Therefore, before signing any documents, we strongly recommend that you consult with a lawyer specializing in real estate transactions.