One of the most popular methods of investing in the real estate market is the transfer of an apartment in a new building. Not everyone understands what this is, and often a beginner simply does not want to mess with this. According to statistics, almost a fifth of all houses under construction are sold according to this scheme. What are the main advantages and disadvantages of these deals? What risk is the buyer exposed to?
Assignment of an apartment in a new building: what is it?
Assignment is an agreement on the transfer of rights to obtain real estate to a third party. The transaction is possible until the state commission, when title documents for premises in a residential building does not yet exist. An investor who purchased housing in a new house from a construction company transfers his property rights to another individual for a fee. Typically, an investor receives from a transaction from 10 to 90% of the profit from money invested in a new building. Obligations and rights to the developer are also transferred to the new participant in shared construction.
Assignment of ownership of an apartment in a new building can be carried out in two ways:
- Under the agreement DU (the seller repays the debt to the developer and the buyer’s funds, the transaction can be conducted several times with one property);
- Under the preliminary contract (not subject to mandatory state registration, secures the right of the seller and buyer to conduct transactions in the future).
Payment of funds occurs by agreement of the parties.
How to sell an apartment in a new building on assignment: stages
The assignment agreement goes through four stages of execution:
1. The developer documentation is checked:
- company charter;
- memorandum of association;
- certificates of state registration and registration with the Federal Tax Service;
- permits for construction;
- project declaration ;
- documents confirming financing.
2. The seller announces his intention to sell the property to the developer, after which he must obtain written consent from him, as well as documents confirming the absence of monetary obligations to the company. It is also required to obtain notarized consent from the spouse for the sale of real estate, permission from a credit institution (if the housing was purchased on a mortgage), an extract from the register for housing. The buyer must obtain the notarial consent of the spouse and take a mortgage and a contract for the provision of a home loan (with a mortgage) from the bank.
3. The cession agreement itself is drawn up. You can make it with the developer, in a real estate office or with a lawyer.
4. State registration of the assignment agreement takes place at the Rosreestr division.
Is mortgage reassignment possible
Current Russian law states that the assignment and mortgage of an apartment in a new building is possible. For this, the seller needs to obtain the written consent of the credit organization, as he transfers his financial obligations to the buyer in full. Thus, the buyer agrees to fulfill all the conditions of the loan agreement. At this stage, it is necessary to carefully study the housing loan agreement, since the bank has the right to make changes at its discretion.
Taxes
According to the Tax Code, after the reassignment of an apartment in a new building, a tax of 13% must be paid by the seller. The deduction is made from the amount of profit - the difference between the money earned and the initial cost of housing. For this, the seller submits a declaration in the form of 3NDFL to the tax inspection department.
For example, if an apartment was bought for 1,000,000 and sold under a transfer agreement for 2,000,000, the amount of tax deduction would be 130,000.
If the buyer wants to receive a tax deduction for the acquisition of real estate, he must ask the seller for a receipt on the payment of taxes.
pros
Both the seller and the buyer receive benefits after the transfer of the apartment in the new building is completed. What are these benefits?
The seller makes a profit from the sale. Moreover, its size may be several times greater than the originally invested amount.
Buyer Benefits:
- Low cost in comparison with ready-made housing.
- Possibility of individual planning.
- A legally clean apartment is purchased.
Minuses
Despite the fact that the transfer of rights to an apartment in a new building is one of the most popular transactions in the real estate market, it remains a risky enterprise. Among the main risks are:
- Bankruptcy of a construction company.
- Cancellation of the assignment agreement.
- Double sales.
- The seller does not notify the assignment of the developer.
Now we will analyze these points in more detail.
Bankruptcy of a construction company
In the period from the moment of state registration of the DDU to the signing of the act on the transfer of the house into operation, the shareholder is entitled to transfer its rights to real estate. The main reason for the assignment is the violation by the developer of quality standards and the repeated delay of construction. As a rule, such circumstances are due to the impending bankruptcy of the developer.
After the initial shareholder transfers the rights to housing in the new building, the developer will be solely responsible for the new participant in the DDU. If the developer violates the DDU and does not fulfill its obligations, the termination of the assignment agreement is impossible. The new shareholder will face litigation directly with the developer.
The initial participant in the construction may be liable for the actions of the builder under the contract only when he accepts a guarantee. Surety transactions are extremely rare.
Cancellation of the assignment agreement
Assignment when buying an apartment in a new building must not contradict the norms of the current legislation and the agreement on participation in shared construction. The assignment agreement may be declared null and void in the following situations:
- The initial interest holder did not fulfill monetary obligations to the developer and the bank.
- No written consent was obtained from the construction company.
- A written permission from the bank was not received if the housing was purchased with credit funds.
In the presence of at least one of the above items, the assignment contract is invalid. According to article 390 of the Civil Code, the responsibility for concluding an invalid contract lies entirely with the original participant in the DDU. He is obliged to fully pay the money transferred to him, as well as to pay interest and reimburse the losses incurred by the deceived shareholder.
Double sale
In 2011, a resolution was adopted according to which all DDUs are subject to mandatory state registration. Unfortunately, Russian legislation in the field of shared construction is far from perfect. In particular, the risk of double sales during the transfer of apartments in houses under construction is not excluded.
In practice, there are often cases where unscrupulous sellers entered into an assignment agreement with several buyers at the same time. This happens because preliminary sale and purchase agreements are concluded, the registration of which is not a prerequisite for registration with the Federal Registration Service. The right of ownership in a court of law is recognized by the assignee who first entered into an agreement with the seller. Transfer money to the seller only after the state registration of the DDU.
The seller did not notify the developer
The seller must obtain written consent from the developer for the sale of the apartment. Otherwise, the new equity holder will suffer losses associated with this risk, including the inability to recover losses from the developer until the cancellation of the DDU.
For example, if a new equity holder wants to recover from the construction company a penalty for delay in putting the object into operation, he will be denied.
Judicial challenge
By a court decision, individuals and legal entities may be declared insolvent or bankrupt. In this case, all transactions related to the issue of purchase and acquisition of real estate are recognized as void in two cases:
- When a knowingly low price is indicated in the contract of sale.
- The transaction was completed less than 12 months before the commencement of bankruptcy proceedings.
In judicial practice, there are cases when the same premises are sold several times under the assignment agreement. Subsequently, the new construction participant pays for the acquired property. The initial shareholder starts the bankruptcy process, and the transaction is declared invalid. Thus, the new equity holder remains not only without the cherished living space, but also without the money spent on the apartment.
Unified Assignment Center
In St. Petersburg and the Leningrad Region there is a specialized agency - the Unified Center for Assignment. Apartments in a new building are more attractive to potential buyers than secondary housing. In addition, assignment is a rather complicated and laborious process, requiring a clear knowledge of legislative norms.
Center specialists have extensive experience in transactions under assignment agreements. The agency also has its own database of verified real estate objects, which practically guarantees the legal purity of transactions.
One of the most risky, but the most affordable type of real estate acquisition is the transfer of an apartment in a new building. What is this deal? Assignment refers to the transfer of the right to register property from a participant in shared construction to a third party. This type of transaction has undeniable advantages, but also many significant disadvantages. To avoid problems with real estate in the future, you should entrust transaction support to qualified lawyers. In Russia there is only one specialized agency dealing with such matters - the Unified Assignment Center.