Assignment of an apartment in a new building - what is it? Pros and cons of acquiring new housing under an assignment agreement
One of the most popular methods of investingin the real estate market - the assignment of an apartment in a new building. That it is not everyone understands, and often a beginner just does not want to mess with it. According to statistics, almost a fifth of all houses under construction are sold under this scheme. What are the main advantages and disadvantages of these transactions? What is the buyer's risk?
Assignment of an apartment in a new building: what is it?
A transfer is an agreement to transfer rights toobtaining a property for a third party. The transaction is possible until the state commission, when the title documents for the premises in the residential building does not yet exist. An investor who purchased housing in a new house from a construction company transfers his ownership rights to another individual for a fee. Usually the investor receives from the transaction 10 to 90% of the profits from the money invested in the new building. The new participant in the shared construction is also transferred obligations and rights to the developer.
The assignment of ownership of an apartment in a new building can be carried out in two ways:
- Under the contract DM (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 agreement (it is not subject to obligatory state registration, fixes the right of the seller and the buyer to conduct the transaction in the future).
Payment of funds is by agreement of the parties.
How to sell an apartment in a new building by assignment: stages
The assignment agreement is four stages:
1. The builder's 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 the financing.
2. The seller reports the intention to sell the property to the developer, after which he must obtain consent from him in writing, as well as documents confirming the absence of monetary obligations to the firm. It is also required to obtain a notarial consent from the spouse for the sale of real estate, permission from the credit institution (if the housing was purchased under a mortgage), an extract from the register for living space. The buyer needs to get a notarial consent of the spouse and take a mortgage and an agreement on the provision of a housing loan (with a mortgage) in the bank.
3. The cession agreement itself is drawn up. You can create it from the developer, in a real estate office or a lawyer.
4. There is a state registration of the contract of assignment in the subdivision of Rosreestr.
Is it possible to transfer a mortgage
The current Russian legislation says,that assignment and mortgage of an apartment in a new building are possible. To do this, the seller needs to obtain the written consent of the credit institution, since it transfers its monetary obligations to the buyer in full. Thus, the buyer undertakes to fulfill all the terms 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.
According to the Tax Code, afterthere was an assignment of an apartment in a new building, a tax of 13% must be paid by the seller. Deduction is made from the amount of profit - the difference between the proceeds of money and the initial cost of housing. To do this, the seller submits to the tax inspection department a declaration in the form of 3NDFL.
For example, if an apartment is bought for 1,000,000, and sold under an assignment agreement for 2,000,000, the amount of the tax deduction will be 130,000.
If the buyer wants to receive a tax deduction for the purchase of real estate, he must ask the seller for a receipt on the payment of taxes.
Both the seller and the buyer receive benefits after the assignment of the apartment in the new building is formalized. What is this benefit?
The seller receives profit from the sale. At the same time, its size can be several times larger than the originally enclosed amount.
Advantages for the buyer:
- Low cost in comparison with the finished housing.
- Possibility of individual planning.
- A legally clean apartment is acquired.
Despite the fact that the assignment of rights to an apartmentin a new building - one of the most popular transactions in the real estate market, it still remains a risky enterprise. Among the main risks are:
- Bankruptcy of a construction firm.
- Cancellation of the cession agreement.
- Double sales.
- The seller does not notify the developer of the assignment.
Now let's analyze these points in more detail.
Bankruptcy of a construction company
In the period counted from the momentstate registration of the DDU and before the signing of the act on the transfer of the house to operation, the shareholder has the right to transfer his rights to real estate. The main reason for the assignment is a violation of the quality standards by the developer and the repeated transfer of construction dates. As a rule, such circumstances arise due to the bankruptcy of the developer.
After the initial shareholder transfersthe right to housing in a new building, the responsibility for the new participant of the DDU will be borne exclusively by the developer. If the developer violates the DDU and does not fulfill the obligations imposed on it, termination of the assignment agreement is impossible. The new interest-bearer is facing litigation already directly with the developer.
The original construction participant may carryresponsibility for the actions of the developer under the contract, only when he takes on the guarantee. Transactions with bail are very rare.
Cancellation of the cession agreement
Assignment when buying an apartment in a new building is notshould contradict the norms of the current legislation and the contract on participation in shared construction. The cession agreement can be recognized as insignificant in the following situations:
If you have at least one of the abovethe cession agreement is invalid. According to Article 390 of the Civil Code, the responsibility for concluding an invalid contract falls entirely on the initial participant of the DDU. He is obliged to fully pay the money transferred to him, as well as pay interest and reimburse the losses incurred by the defrauded co-investors.
In 2011, a resolution was adopted, according to whichto which all DDUs are subject to compulsory state registration. Unfortunately, Russian legislation in the field of shared construction is far from perfect. In particular, the risk of double sales for the assignment of apartments in houses under construction is not ruled out.
In practice, there are often cases whenunscrupulous sellers entered into a contract of assignment with several buyers simultaneously. This is due to the fact that preliminary sales contracts are concluded, the registration of which in Rosreestr is not a prerequisite. The right of ownership is recognized in court by the assignee who first concluded the contract with the seller. To transfer money to the seller follows only after the state registration of the DDU.
The seller did not notify the developer
The seller should receive from the developerwritten consent for the sale of the apartment. Otherwise, the new shareholder will incur losses associated with this risk, including the lack of possibility to collect losses from the developer until the cancellation of the DDU.
For example, if a new shareholder in court wants to recover from a construction company a penalty for delay in putting the object into operation, he will be refused.
Contestation of the contract in a judicial procedure
By decision of the court, individuals and legal entitiesmay be declared insolvent, or bankrupt. In this case, all transactions relating to the issue of buying and purchasing real estate are recognized as insignificant in two cases:
- When the contract of sale indicates a deliberately understated price.
- The deal was made less than 12 months before the start of the bankruptcy proceedings.
In judicial practice, cases where one andThe same premises is sold under the cession agreement several times. Subsequently, the new construction participant pays for the property purchased. The initial shareholder launches a bankruptcy process, and the transaction is declared invalid. Thus, the new shareholder remains not only without a cherished living space, but also without the money spent on an apartment.
Single Transfer Center
In St. Petersburg and the Leningrad regionthere is a specialized agency - the Single Transfer Center. Apartments in the new building are more attractive to potential buyers than secondary housing. In addition, the assignment is a rather complex and time-consuming process, requiring a clear knowledge of the legislative norms.
Specialists of the Center have extensive experience in transactions under cession contracts. Also, the agency has its own database of proven real estate, which virtually guarantees the legal purity of transactions.
One of the most risky, but the most accessible kindacquisition of real estate - assignment of an apartment in a new building. What kind of deal is this? Transfer means the transfer of the right to register a property from a shareholder to a third party. This type of transaction has undeniable advantages, but also many significant drawbacks. 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 United Center for Assignment.