Checking the legal cleanliness of the apartment – the presence of encumbrances
One of the key elements of checking the apartment for legal cleanliness is to identify various kinds of burdens imposed on the apartment. They can be explicit and hidden. Obtaining information about obvious burdens is simple, you just need to order an extract from the Unified State Register of Real Estate (USRN) and having received it carefully examine the relevant sections of the document.
However, there are situations when the owner of the real estate voluntarily or not voluntarily did not submit the necessary information to the USRN, then an extract from the Register can not help in any way and other documents need to be studied.
What types of encumbrances exist?
Mortgage by law
This is probably the most common restriction on real estate management these days. It is no secret that more than half of transactions with apartments are carried out with the help of credit funds. During state registration of such a transaction, an encumbrance in the form of a pledge is imposed on the apartment and disposal of real estate is possible only with the consent of the organization that issued the loan until the loan is fully repaid.
It is also not a secret that many owners who purchased real estate on a mortgage subsequently cannot cope with the credit load and are forced to sell the apartment until the loan is fully repaid. Such transactions are carried out quite often and a number of mechanisms have already been developed to ensure security.
However, it is worth noting that a full guarantee will be only in the case when the buyer draws up a mortgage for such an apartment at the mortgagee bank. When buying for cash, there is a risk that the loan will be repaid at the expense of the buyer’s money, and the owner will subsequently refuse to conduct the transaction. In this case, unfortunately, the court cannot be avoided.
The annuity contract assumes that the apartment becomes the property of the new owner, who undertakes to carry out maintenance, and possibly caring for the former owner until the end of his life. It is such a duty that becomes a burden on the apartment. This type does not require separate registration, its existence follows from the name of the contract, which immediately makes it clear what is at stake and what kind of obligations are assigned to the new owner. An annuity contract is deemed to be fulfilled only in the event of the death of the lessee.
Can an apartment burdened with rent be sold? Yes, such a procedure exists and is practicable; naturally, a deal is possible only with the consent of the lessee and the new owner will assume all existing obligations of the annuity payer.
This type, just like a pledge, completely excludes the possibility of disposing of real estate and is subject to mandatory state registration. The imposition of arrests is by court order. In what cases can this happen:
- the apartment is the subject of a property dispute (divorces, inheritance, division of property);
- seizure imposed to secure a debt claim;
- non-payment of taxes;
- arrest may be imposed at the suit of the housing inspectorate;
- at the suit of the guardianship authorities in cases of infringement of the rights of minors;
Removal of an arrest also takes place on the basis of a court decision or by letter of the bailiff in whose proceedings the case is being processed. Only in this case it will be possible to register a deal with this property.
The case, of course, is rare in our times, but nonetheless occurring. Law-abiding citizens are required to register an agreement with the Rosreestr when renting an apartment. When selling an apartment with such an encumbrance, all rights and obligations of tenants (tenants) are retained. Those. the new owner is obliged to renew the contract with them on the same conditions.
If there are minors among the property owners, a transaction by order is possible only with the consent of the guardianship and trusteeship authorities, who must make sure that property and other rights and interests of minors are not violated as a result.
The types of encumbrances listed above are explicit and directly follow from the documents of title or must pass state registration and are visible in the extract from the USRN. Now let’s talk about those species that are not explicit.
Violations and refusals in the privatization of housing
One of the most common violations during privatization in the early 90s was the non-inclusion of minors in the number of owners. Subsequent clarifications by the legislator and the courts unequivocally retain the ownership of such children, even if it is not registered.
When buying an apartment, especially if it has changed several owners, the buyer does not learn about the existence of minor rights from any of the documents provided for the transaction. Subsequently, the contract may be terminated by a court decision.
The second situation is related to people who renounced their right to participate in privatization. However, the right to use the apartment for such people remains for life, which means that it will not be possible to remove such a person from the registration register at the place of residence and to drive him out of the apartment without his voluntary consent.
The purchase of housing using public funds in the form of maternity capital suggests that minor children should be included in the number of owners. However, in practice this does not always work. Especially when the apartment is purchased on a mortgage, and maternity capital is used as a down payment. Children are not included in the number of owners. In the future, such a transaction may be declared invalid and terminated.
The difficulty lies in the fact that it is impossible to obtain information about the issued certificates for the capital in open sources.
According to experienced realtors and lawyers working with residential real estate, it is impossible to verify the full purity of the estate. This is due primarily to the fact that it is not possible to identify the entire circle of heirs, which means there is always a chance that someone will appear who has the right to a share in the inheritance.
Another aspect is the persons who obtained the right to use housing by testament or by testament. As in the case of the refusal of privatization, only a voluntary renunciation of the right to use the apartment by such an heir is possible.
As you can see from the above, the standard set of documents for the transaction does not always give a complete picture of the circle of people who have the right to an apartment, and the presence of additional documents does not always clarify the picture, especially since the facts obtained from the documents must be correctly interpreted.