Maternity capital for many Russian families has become a significant financial support in solving the housing issue. It is the purchase of residential real estate that annually spends the bulk of the funds allocated from the budget. However, situations may arise in life that require an urgent sale of housing. Read more about whether it is possible to sell an apartment with maternity capital and how to sell an apartment with maternity capital correctly, what restrictions and features are in this transaction - read on.
The Civil Code of the Russian Federation (Article 36) and 254-FZ “On Additional Measures of State Support for Families with Children” require that housing purchased using maternity capital be registered as common shared ownership, including even minor children. The distribution of shares may be, by agreement, either uneven or equal.
The subsequent sale of residential property will only be possible upon receipt of permission from territorial bodies guardianship and guardianship (OOiP), main task which is to protect the interests of minor family members.
To obtain such permission, parents must provide objective evidence that the upcoming transaction does not infringe on anyone's rights. The result of the concluded contract of sale (dkp) of the apartment will be:
- the preservation of the shares due to the children (that is, receiving at least no less share in new real estate);
- preventing the deterioration of living conditions for children (the area standards for each family member and comfort indicators cannot be reduced).
Conclusion! The sale of housing, which was purchased with the help of mother capital, is possible only with the permission of the guardianship authorities, and in cases where the housing conditions for each child remain unchanged or improve while maintaining the due shares of ownership .
How to get permission from the guardianship and guardianship authorities
Official permission from the guardianship authorities is obtained in writing. To do this, parents must write an application to free form with a request to complete the transaction and attach the required set of documents to it. Among these documents:
- certificates of marriage / divorce (if any) and the birth of children;
- passport of a citizen of Russia (for each parent);
- documents for alienated and purchased housing;
- obligation of parents to allocate proportional shares to all children in the upcoming transaction (drawn up by a notary);
- certificate of no debt on payments for housing and communal services (can be taken from the HOA).
Additionally, you may need:
- real estate appraisal report (issued by an accredited appraisal company);
- documents confirming the absence of parents (for example, in the event of their death or deprivation of rights);
- consent to the transaction from children who have reached the age of 14;
- documents for the purchased housing (if the apartment is being sold in order to improve living conditions).
In some cases, the guardianship authorities may go to the place to inspect the acquired property in order to make sure that their decision is correct.
The collected package of papers is provided to the territorial branch of the guardianship body. Consideration of the issue usually takes no more than one calendar month.
When will it be possible to sell an apartment and is it possible to sell an apartment before allocating shares to children in order to buy another
There is no clear definition of the period from which it is allowed to sell an apartment purchased using maternity capital in any legislative act. Each specific situation will be considered on an individual basis. The transaction itself can be carried out at any time from the date of purchase of the apartment.
However, there are several important nuances concerning the validity of permission from the guardianship authorities:
- consent from the OOiP is valid only 3 months from the date of its issuance;
- a new contract for housing must be submitted to the guardianship authorities within 1 month from the date of receipt of official permission to alienate the property of minors.
If the contract is not provided, the registration authority has the right to refuse to register the transaction.
In a situation where housing was bought with the help of credit funds and a mortgage loan, which is valid at the time of the sale of the property, the borrower must obtain the lender's consent to the transaction and transfer all obligations to the buyer.
It is also important to understand that real estate purchased less than 3 years ago implies the obligation to pay sales tax (income) in the amount of 13% of total cost contracts. If the property was registered after 01/01/2016, then a 5-year tax exemption period applies. If the sale of old and purchase of new apartments is carried out within one tax period, then the taxpayer is exempted from such an expense item.
In the list of documents required to obtain permission from the OOiP for the sale of an apartment purchased in whole or in part for maternal capital, as described earlier, includes a notarial undertaking of guardians/parents to allocate shares to each child. Such a document is issued only in the case when the funds of the mother capital are transferred to pay off mortgage debt.
The period for the fulfillment of such an obligation (allocation of shares) is legally established - no later than 6 months from the date of removal of the encumbrance from the pledge.
Attention! You can sell an apartment before the allocation of shares to applicants at any time. The main limitation is to obtain permission from the OOiP (guardianship and guardianship authorities).
How to sell an apartment bought with maternity capital
Today, real estate with state assistance as part of its value can:
- sell and immediately buy a new one (simultaneous registration of two transactions);
- exchange;
- sell for the purpose of building a separate house;
- implement and place the proceeds into an account in the name of the children.
The most common option is the first - the sale of an existing apartment and the subsequent purchase of a new one (both with and without a surcharge).
Selling a home may be due to the following reasons:
- the family moves to another region or city;
- previously purchased real estate does not meet sanitary and epidemiological standards (unfavorable area, noisy neighbors, freezing in the cold season, etc.);
- the family got the opportunity to expand the living space;
- there was an urgent need for money (existing housing is exchanged for a smaller area).
In general, the procedure for selling an apartment or an apartment purchased with maternity capital (without a mortgage) includes the following sequence of actions or steps:
- Search for a buyer for your apartment and potential housing for purchase.
It is recommended to do this simultaneously in order to minimize time costs. Having decided on the apartment to be bought and agreed with the potential buyer of the existing one, it is possible to conclude preliminary sales contracts in advance, in which it is better to immediately register the shares of all family members.
If new flat will be bought in addition to their own funds with the help of a mortgage loan, then it can be initially issued to one or both parents, and additionally confirm their obligations for the subsequent allocation of shares to children through a notary.
- Collection of a set of documents for obtaining permission from the OOiP.
You should also prepare the necessary paperwork in advance to minimize waiting times.
- Obtaining an official document from the guardianship authorities, according to which the sale of an apartment with an encumbrance on maternity capital is allowed.
It usually takes from several weeks to one month to wait for such a document. A positive decision will be made only when the OOiP is confident that all the rights of the children will be taken into account. If it is planned to buy new housing in installments, then there is a high probability of receiving a refusal from the guardianship authority, since deterioration in living conditions is suspected.
- Receiving from the buyer the amount of the down payment indicated in the contract.
The contributed share of the property price is agreed upon by the parties involved (usually 10 to 50%). The money is usually transferred to the account of the seller of the apartment. The term of the transfer will be minimal (usually on the same day).
- Deal registration.
In the Regpalate or the MFC, a contract for the sale of an apartment for maternity capital is registered, which is confirmed by a corresponding entry in the Rosreestr and the issuance of a new certificate of ownership.
- Final settlement between seller and buyer.
The remaining amount is transferred by the buyer within the period established by the contract. Breaking the deadline is fraught with penalties.
In the scheme for the sale of an apartment purchased for maternity capital, using a mortgage, presented above step-by-step instruction will contain several additional items:
- crediting the funds received from the buyer towards the fulfillment of credit obligations;
- obtaining permission from the bank to conclude a new sale and purchase agreement and transferring the obligations of the seller to the buyer of real estate;
- removal of the encumbrance from the apartment after the final settlement under the mortgage agreement (final step).
The second point is extremely rare, as banks do not want to take unnecessary risks.
Documentation
The set of documents necessary for the sale of an apartment in which maternity capital is invested consists of the following papers:
- permission from the OOiP;
- identity documents (passports of parents and birth certificates of all children, as well as passports of children who have reached the age of 14);
- documents for sale and purchase of housing;
- preliminary dct housing.
If one of the parties to the transaction is a bank that issued a mortgage for the purchase of an apartment with maternity capital that is being sold today, then during registration you will need to provide a loan agreement and a mortgage agreement.
Features if the apartment was bought with a mortgage
The conditions for the sale of an apartment purchased with maternity capital in the event of an outstanding mortgage loan imply obtaining mandatory consent from the bank. This can lead to serious difficulties. There are several reasons here:
- the presence of minor children registered in the apartment (the procedure for their discharge is always a difficult matter);
- the living space is pledged to the creditor and re-registration of ownership without his permission is impossible.
In practice, there are 2 options for conducting a transaction for the alienation of housing with an encumbrance:
- With bank approval.
The seller of the apartment is looking for a buyer in advance, after which he applies to the bank with a request for approval of the upcoming transaction. In such a document, it is important to explain in detail to whom and for what price the property is being sold, as well as the reason for the sale.
If the bank gives its consent, then the transaction will be executed with its support. By signing the contract of sale, the buyer will have to transfer to the bank account an amount equal to the balance of the mortgage debt. The rest is transferred to the seller of the apartment.
- Sale of housing with an encumbrance "bypassing the bank."
This option consists in the fact that after signing the contract of sale, the seller repays the debt ahead of schedule. A full settlement with the bank entitles the seller to remove the encumbrance in the future. The buyer then takes ownership of the property.
As for the risks for the seller and the buyer, the procedure for selling an apartment without the participation of a bank and paying off a debt is fraught with possible negative consequences only for the buyer. That is why this method is usually used in transactions between close people or relatives.
An important specificity of the sale of such an apartment is to obtain a mandatory permit for the transaction from the guardianship and guardianship authorities, which monitor the observance of the rights and interests of each family member, especially minor children. The main requirement for the sale of real estate is the preservation of shares and non-deterioration of living conditions.
We are waiting for your questions on this topic in the comments.
Selling an apartment with maternity capital and resolving issues with guardianship authorities is a rather complicated and difficult issue that requires individual approach. We recommend that you sign up for a free consultation with our lawyer to go through this path easily and safely.
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is of interest to many citizens. Most often, maternity capital funds are spent on the purchase of new housing, but over time, it may be necessary to sell housing. Is it possible to do this and how, we will discuss in the article.
Features of the use of maternity capital for the purchase of housing
Improving living conditions is one of the areas provided by law for which maternity capital funds can be spent. Often cash provided by the state, citizens use to buy an apartment or house.
Federal Law "On Additional Measures state support Families with Children” dated December 29, 2006 No. 256-FZ, guarding the interests of minors, in paragraph 4 of Article 10 requires that housing purchased with maternity capital be registered as the property of all family members. They include mom, dad and all the children. Shares in common property are established by agreement and may be unequal. If it is impossible to allocate shares in housing immediately, upon purchase, then the owner of the certificate (most often the mother) gives a notarial obligation to endow all family members with property within six months.
The use of maternity capital is just an episode in the life of one family. It may happen that the capital is used, housing is bought, but over time it becomes necessary to change the place of residence or change the apartment, expand the living space. How to sell an apartment bought with maternity capital?
Specifics and necessary documents for the sale of houses under maternity capital
The law on maternity capital does not provide for any prohibitions or restrictions on the sale of houses acquired with the help of capital. However, civil, family and guardianship laws interrelatedly protect the rights of minors and require the sale of children's property only with the permission of the guardianship authorities. This is evidenced by articles 28, 37 of the Civil Code of the Russian Federation (part one) dated November 30, 1994 No. 51-FZ, article 21 federal law"On guardianship and guardianship" dated April 24, 2008 No. 48-FZ.
Housing purchased with state aid funds is registered as the property of all family members. This means that, most likely, at least one owner of the premises will be a child, and therefore the consent of the guardianship authorities is required for the sale of such housing. It will not be possible to ignore obtaining consent from guardianship, since this document is mandatory when registering a transaction with Rosreestr. If there is no permission to sell among the documents, then the transaction will not be registered, and a refusal will be issued.
Consent to the sale is a decision of the head of the administration of the settlement (region, territory, etc.). The legislation does not regulate the period for which a permit to sell can be issued. The validity period of this document is established in the resolution itself, based on the specific life situation but usually 3 months. However, the letter of the Ministry of Education of the Russian Federation "On the protection of housing rights of minors" dated February 20, 1995 No. 09-M contains an order to provide contracts for a transaction with housing for sale within a month from the date of issuance of a permit for sale. If the sale permit has expired and the transaction has not been registered, a new permit will be required.
It should be noted that housing is registered as the property of children not only upon purchase (including mortgage) with the help of maternity capital, but also in the case of construction or reconstruction of premises using capital funds. Therefore, if the family decides to sell such housing in the future, they will also need to obtain permission to sell. Unless, of course, by then the children will not grow up.
How to get permission to sell a house with a minor owner
To become the happy owner of a permit to sell the share of a minor, you need to contact the guardianship and guardianship authorities at the place of residence. Parents will write a statement in which they will inform about the proposed sale of housing. After that, the guardianship officer will interview the parents, as well as children who are already 14 years old.
In addition to the application for obtaining a sales permit, the following documents will be required:
- parents' passports;
- consent to the sale from a child who is already 14 years old;
- birth certificates of children, marriage or divorce;
- documents for the sale of housing;
- documents for the purchased housing.
In order to issue a permit for the sale, the guardian must ensure that the housing interests of the child will be respected and that the living conditions will not be worsened. The child must become the owner of a share in the new apartment of no less size than he owned in the old apartment. Therefore, the employee will require the simultaneous transaction for the sale of old and the acquisition of new housing. There is no need to be afraid of this. You just need to find the apartment you want to buy in advance and conclude a preliminary contract of sale with the sellers. The preliminary sale and purchase agreement must be attached to the rest of the documents for obtaining permission.
In order to make sure of the quality of the purchased housing and the observance of the interests of the child, in addition to the interview, guardianship employees can make an actual visit to the place.
Sometimes, in exceptional cases, consent to the sale is given on the condition that the money from the sale of the apartment will be transferred to a special account, and new housing will be purchased in the near future. As a rule, only a month is given to buy a new apartment, although this period is not established by law.
They will refuse to issue a permit to sell the child's property if a new apartment is bought in installments, as this worsens the child's living conditions. In addition, it can be recognized as a deterioration in living conditions if more people are registered in the apartment proposed for purchase than in the previous housing. This is possible if, for example, the owner of the apartment sells, but expects to be discharged later. Such options are common when buying an apartment for adults. But guardianship officers at the stage of issuing a permit for the sale cannot be sure that the former owner will eventually be discharged. In this case, permission to sell is also likely to be denied.
If the guardianship is satisfied that the interests of the minor are observed, then the marketing authorization will be ready within 2 weeks from the date of application.
Thus, we can sum up. There are no restrictions on the sale of housing purchased using maternity capital funds, the law does not provide. General restrictions are related to the disposal of the property of a minor. If by the time of the sale all the children-owners grow up, then the fact that the apartment was bought for maternity capital can not even be remembered.
Maternity capital is paid to mothers on the occasion of the birth (adoption) of the second, third and subsequent children. Currently, the total amount of maternity capital is 453,026 rubles. By law, spending family money is allowed only for certain needs, one of which is the purchase of a mortgage. How mortgages with maternity capital will affect real estate transactions in the future will be described below.
Is it possible to sell an apartment with maternity capital in a mortgage?
The sale of an apartment with a mortgage and maternity capital is impossible without the consent of all the owners of the apartment. According to the law, in order to pay off a mortgage at the expense of maternity capital, it is necessary to register housing for all family members - for parents and children, so that everyone has their own share of real estate. Accordingly, the sale of housing is impossible to carry out. To carry out a purchase and sale transaction, a condition is necessary - the achievement by all children who have a share in the property - the age of 18.
Restrictions on the sale of an apartment in a mortgage at the expense of maternity capital can be avoided, even before the coming of age of all family members. To do this, you need to apply to a specialized institution for permission.
Getting permission to sell
To resolve the issue, you should contact the institution for guardianship and guardianship. Authorized bodies take care of the welfare and interests of minors. Therefore, in such transactions with maternity capital, their participation is mandatory so that when concluding a contract for the sale of housing, children's interests do not suffer.
In particular, specialized bodies check:
- whether the share of minors in new housing will be written off;
- whether the new apartment (house) will comply with all legislative aspects. For example, the area of housing per person should be a certain amount square meters, for children, all communal amenities should be created.
If the conditions for the sale of mortgage housing at the expense of maternity capital do not meet the interests of children, then the guardianship authorities will not grant permission for the transaction.
The procedure for obtaining the consent of the guardianship and guardianship authorities requires the provision of a certain list of documentation. Required Documents:
- mom and dad passports;
- children's testimonies;
- papers on the estimated value of residential premises;
- papers proving ownership of housing;
- papers on the absence of arrears in utility bills.
If a permit has been issued from a guardianship and guardianship institution, a purchase and sale transaction should be concluded within a three-month period after receiving it. Otherwise, in accordance with the law, after three months, the decision will be invalid.
In the case when the mortgage for the apartment has not yet been repaid, and its owners want to sell it, a special permit is required from the banking institution in which the loan agreement was drawn up. The payer of the loan will be changed, so the bank is required to know his identity in order to verify his ability to pay.
It is possible to sell an apartment purchased using maternity capital only if these permits are available.
Procedure
It is necessary to start the procedure for selling real estate purchased on a mortgage using maternity capital by finding a suitable house (apartment). The new living space should be better than the previous one.
Then you need to start collecting the package required documents. You should start by obtaining approval for the sale from the bank and from the guardianship authorities. If you plan to move to another locality, then you should prove to the authorized bodies the rationality of your decision. Among the evidence may be documents on the state of health of one of the family members or information about the transfer to another job in another city of the father (mother).
Further, it is required to provide papers on new real estate to specialized trustee bodies, as well as information on the survey of the new premises. The examination is carried out by a guardian, in compliance with the law.
After the approval of the entire package of documents by the authorized bodies, the transaction for the sale of mortgage housing purchased using maternity capital funds is completed.
Sale is possible in two ways:
- the buyer pays the mortgage in full to the banking institution. And then a transaction for the sale of residential real estate is concluded;
- the buyer re-registers all obligations to pay the remaining amount of the mortgage.
How to sell housing in a mortgage with maternity capital and buy another?
If the transaction for the sale of housing purchased with a mortgage at the expense of maternity capital has been completed, then the purchase of a new one follows.
Features of buying a new home:
- new housing should correspond to comfortable living conditions for children to live in them;
- the number of square meters per person must not be less than the minimum legislative norms, and not lower than in the previous house, bought at the expense of maternity capital;
- the apartment must be designed for all family members, that is, all children must have a share in the living quarters (this is a requirement when receiving maternity capital to pay off a mortgage or make a down payment), regardless of their number.
What happens if you violate the procedure for selling an apartment?
An apartment purchased with a mortgage and paid for with maternity capital requires careful preparation of all papers. The compliance of the documents with all the requirements of the law on the issuance of maternity capital must be checked by the buyer of the apartment, because in case of their improper appearance, he risks his money and the acquired property.
For example, if parents do not allocate shares in new housing for all their minor children, then the children have the right to appeal their actions. The law gives them the right to appeal after they reach the age of majority. After they turn 18, they have the right to file a lawsuit within three years about their share in the previous housing, acquired at the expense of part of the maternity capital.
If a complaint is filed with the court, then the completed transaction on the purchase and sale of housing in a mortgage using maternity payments will be invalid. The buyer must be paid his money, and he, in turn, must vacate the premises. Therefore, when doing such big deals, all buyers are advised to carefully check all documentation and, if necessary, seek assistance from authorized persons.
By law, fraud with mortgage real estate acquired using maternity capital is prohibited. You can not get family capital to purchase a mortgage for the purpose of reselling real estate. For such actions, such sellers face criminal liability.
In most cases, maternity capital is directed specifically to improving housing conditions. For this money you can buy an apartment not only in a new building, but also in the secondary market. However, there are certain nuances for the buyer and seller here. In this article, we will take a closer look at how to sell an apartment to people with maternity capital, what to look for in such a transaction, and how to protect yourself from fraud.
Solvency confirmation
The state certificate is the only document confirming the right to use maternity capital. However, it can be forged like any other document. Therefore, first of all, you need to request from a potential buyer a certificate “On the state of the financial part personal account entitled to additional measures of state support”.
The buyer submits an application to the branch of the Pension Fund at the place of residence, after which a certificate is issued to him within three days. This is a standard and very simple procedure. If the owner of the certificate refuses to provide a certificate, this indicates dishonesty or simple laziness. In any case, the seller of the apartment has full right require confirmation of solvency.
Features and deal options
Since maternity capital is not issued in cash, payment is made only by bank transfer.
There are two options for selling housing to people with maternity capital:
- Without getting a loan. The pension fund simply transfers the money to the seller's account. PF is especially picky about the sales contract and can delay the transfer of money.
- By mortgage. The money is transferred to the seller by the bank with which the buyer draws up a mortgage lending agreement. This option is more convenient for the seller. The bank transfers the entire amount at once, and then receives compensation from the PF. If the transaction is carried out without attracting a mortgage, the seller will have to wait for the transfer of funds up to 2 months.
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Procedure
Regardless of the chosen transaction option (mortgage or directly with the PF), the sequence of actions remains approximately the same:
- Checking the solvency of the buyer (see above).
- Registration of the contract. The nuances of this stage are described in the section "Features of the contract". The document must indicate that housing is purchased with maternity capital. Samples are available from the Pension Fund.
- State registration of the contract. To do this, it is submitted to the Registration Chamber, which within 5 days gives the buyer the right to own the apartment. During this time, the buyer transfers the first installment to the seller with his own or credit money.
- Transfer to the Pension Fund of an application with the bank details of the seller. The buyer also attaches to the application a certificate of state registration of property rights, a certificate for maternity capital and passports (including the seller).
- Receiving the money. The PF considers the application and transfers the money to the seller's account within 2 months.
- Removal of encumbrance at the Registration Chamber. This should be done only after the seller has received the full amount. If there is not enough maternity capital, the buyer must cover the difference from his own or credit funds. Until full payment, the encumbrance cannot be removed.
Shared ownership
The law allows the acquisition of housing for maternity capital only in shared ownership, with the allocation of equal shares to all family members (children, spouses). This is important for both parties to the transaction so that it can be successfully completed.
The buyer is obliged to provide the PF with an obligation to register the acquired housing in shared ownership with the specified size of shares for each family member. The obligation is certified by a notary.
If this document is not provided to the PF, the money may not be transferred to the seller of the apartment. Therefore, it is recommended to personally check the submission of the obligation.
Also, the apartment may not be registered in shared ownership immediately after the sale. In this case, the contract of sale must indicate that the money is transferred to the seller after it has been provided to the Pension Fund. share ownership obligations.
Features of the contract
The transaction is carried out through a contract of sale, which has some features. Pay attention to the following points:
- Until the transfer of the entire amount from the PF, an encumbrance is imposed on housing. The contract states that until the money is received, the apartment is pledged to the seller.
- The sales contract specifies the seller's bank account, to which the Pension Fund transfers money. The following information is required: account number individual, full name of the person for whom the account is opened, postal address, TIN and other details of the bank.
- As buyers, you must list all family members (spouses, children), and not just certificate holders. If any of the family members cannot be present during the transaction, he gives written consent to another person to act on his behalf.
- The contract must indicate the details of the certificate for mother capital: number, date of issue, date and number of the decision to issue, as well as the PF authority that issued the certificate.
- It is obligatory to indicate the amount to be transferred by the Pension Fund to the seller's account.
