When buying or selling an apartment, there are factors that complicate real estate transactions, and sometimes make it impossible to carry out such transactions. One of these factors is the participation of minors in the transaction, who may be the owners of this housing or have property rights to a share in the apartment. In this article, experts from the RealtyPress.ru portal consider aspects related to the participation of minors in real estate transactions.
The attractiveness of a transaction involving minors
On the real estate market, the most attractive objects for purchase are apartments that are completely free in legal terms, that is, when at the time of sale no one is registered in the apartment and the current owner is one owner. However, this happens quite rarely; most often, the sale of an apartment is only one link in a chain of operations aimed at improving (or changing) the seller’s living conditions. In other words, the apartment is being sold in order to purchase more spacious living space or to buy two apartments (when moving away).
Therefore, at the moment when a buyer is being found, the current owners do not take any action regarding deregistration or transfer of property rights. Potential buyers, having learned that there is a child who owns part of the apartment, are afraid of difficulties with the implementation of the transaction, and therefore give preference to those options that exclude any participation of minors. Accordingly, with the loss of attractiveness, the apartment may lose some value, since the potential buyer will seek to include risks in the price of the property.
Why buyers are so wary of such transactions will be discussed below, but now we will pay attention to the actions that the seller needs to take (and the buyer, in turn, is forced to check whether the necessary actions have been taken).
Permission from guardianship authorities
Quite often, when purchasing an apartment, ownership rights are distributed among all family members. This gives each of them certain guarantees in case of unforeseen situations. However, on the other hand, the fact that the child is the owner of part of the apartment greatly complicates the deal. Parents cannot sell the apartment (to move to another city or to expand their living space) until the consent of the guardianship and trusteeship authorities is obtained, which are required to control all real estate transactions that affect the interests of minors. This rule is determined by Articles 26, 28, 37 of the Civil Code of the Russian Federation, as well as Article 60 of the Family Code of the Russian Federation; guardianship authorities ensure that the rights of children are not violated and check the legality of the transaction. Thus, in real estate transactions, the interests of minors are represented not by their parents (as in other cases), but by representatives of the guardianship authorities.
However, if the apartment is the property of the parents (the child is simply registered in the living space), then this greatly simplifies the transaction. There is no need to contact the guardianship authorities to obtain the appropriate permission.
Contrary to popular belief, you need to contact the guardianship authorities not only if your living conditions worsen (for example, moving to a smaller apartment). For any real estate transactions, it is necessary to obtain the consent of the guardianship authorities, otherwise the transaction (even if it can be carried out) will be considered illegal, with all the ensuing consequences. So, the need to obtain a permit is present in the following cases: sale of an apartment, transfer of real estate as collateral, donation, exchange. This circumstance is the only reason why parents are in no hurry to register their child, because, in fact, the state is trying to provide the child with some kind of protection through the parents themselves, while limiting the latter’s right to dispose of their property.
Probability of permission or refusal of guardianship authorities
Problems arising when obtaining permission from the guardianship authorities are unlikely in cases where the child’s living conditions are guaranteed to improve, for example:
With the money from the sale of an old apartment, housing of a similar size is purchased, but the layout requires a separate room for the child;
- Instead of an apartment for sale, an apartment of the same size and layout is purchased, but the house is of a later construction;
- An apartment is purchased in a better area (higher level of infrastructure, closer school, kindergarten, other obvious advantages):
- And finally, the guardianship authorities are unlikely to object if you plan to purchase housing of a larger area.
Certain difficulties may arise if you move to another city; the guardianship authorities will require proof that the child’s rights will not be violated (living conditions will not worsen). The evidence that is considered such in this case is the preliminary purchase and sale agreement. In other words, the owner of an apartment of which a child is a co-owner, before selling this apartment, must go to the city where he intends to move, look for housing and sign a preliminary purchase and sale agreement.
But if, as a result of the planned transaction, the child’s living conditions are less attractive, there is a high probability that the guardianship authorities will refuse to issue permission. However, each case is considered individually. For example, it is planned to exchange for an apartment of a smaller area, but this is done so that the money remaining from the sale will be spent on the treatment of the child. For example, it is not uncommon for guardianship authorities to agree to exchange a city apartment for a house in the suburbs, if such an exchange is motivated by the need for fresh air for a child who is susceptible to pulmonary diseases. The most important thing in such cases is to collect documents that will serve as confirmation of the circumstances.
In addition, guardianship authorities are very wary of transferring real estate, part of which (or the entire apartment) belongs to the child, as collateral to secure a mortgage loan issued for the purchase of an apartment in a building under construction. There are known cases when defrauded investors were left without the promised apartment and could not repay the loan. Accordingly, if events develop in this way, the need arises to sell the pledge, and in this case the child is left without housing (if the guardianship authorities have agreed to transfer the apartment as pledge).
Procedure for obtaining permission and documents
According to current legislation, the refusal or consent of the guardianship authorities to sell an apartment must be issued within 15 days from the date of contacting the appropriate authority. In this case, it is necessary to collect and provide a set of documents, which includes:
- Statement;
- Passports of parents;
- Child’s birth certificate (or passport);
- Title documents for the apartment;
- Certificate from the child’s place of residence.
Potential dangers for the buyer
For the buyer, the danger in a real estate transaction where children may be involved is that a mistake can be made at any stage of the preparation (intentional or not). As a result of this, the transaction may be challenged in court, and if the violation of the child’s rights is proven, the current owner of the apartment may be liable to compensate for the damage caused. Moreover, the transaction can be contested even after ten years; not only parents, but also relatives, guardians of the child, and even the child himself, who has already reached the age of majority, can file an application with the court. In other words, even permission received from the guardianship authorities does not guarantee the buyer the absence of any problems with his real estate in the future.
However, there are situations when, when purchasing real estate, the owner of which (or the owner of part of the apartment) is a minor, any claims can be avoided. It would seem that it is absolutely clear that, according to Russian legislation, a child can be the owner, but cannot sell this property even with the consent of the parents (guardians) without the permission of the guardianship authorities. But there are some exceptions here; for example, permission from the guardianship authorities is not required if the child acquired full legal capacity at the time of the transaction. In principle, full legal capacity is the basis for independently concluding any transactions; for this, the child (if you can call him that) does not even need parental consent. That is, it is no longer possible to challenge such a transaction in court.
Minors with full legal capacity
How can a child gain full legal capacity before reaching adulthood? To begin with, we note that from the age of 14 until the age of 18, a child has limited legal capacity, that is, he can enter into some transactions without parental consent. However, for such an operation as the sale of an apartment, both the consent of the parents and the permission of the guardianship authorities are still required. Full legal capacity, which gives a child the same rights as any citizen, he can acquire before reaching adulthood in the following cases:
Marriage before age 18. From the moment of official registration, the child acquires full legal capacity, and if guardianship is established over him, then this guardianship automatically loses force. Legal capacity is retained even if the marriage was soon dissolved (up to 18 years of age). However, this marriage, in turn, may be declared invalid by the court, in which case the minor loses legal capacity. The moment of loss of legal capacity is determined by the court, and from that moment all transactions in which the minor took part are also declared invalid (such a transaction could be the purchase and sale of real estate);
Emancipation. This term is used in civil law to refer to minors who have already reached the age of 16 and are engaged (in the prescribed manner, with the consent of parents or guardians) in entrepreneurial activities or are working under an employment contract. In this case, full legal capacity is not acquired automatically (unlike in the case of marriage); emancipation is carried out by a court decision or by decision of the guardianship authorities; accordingly, the consent of the parents (trustees, adoptive parents) is also required. Again, unlike the acquisition of capacity through marriage, capacity achieved through emancipation is not lost due to any circumstances.
Thus, when a minor acquires full legal capacity, the consent of the guardianship authorities is not required to conduct any real estate transactions where the interests of the minor are in any way affected. Thus, among the documents that are necessary to conclude a purchase and sale agreement, the written (and notarized) consent of the child as a co-owner of the apartment for the sale of real estate is sufficient.
Rights of guardians to the property of wards
Now it is necessary to make clarifications regarding real estate transactions (where the interests of the child are affected), in which the seller is not one of the parents, but a guardian. Article 37 of the Civil Code of the Russian Federation states that transactions for the alienation of real estate (sale, donation), for rent, for free use, for collateral, cannot be concluded by a guardian without the consent of the guardianship and trusteeship authorities. Such transactions also include any operations that involve the ward’s renunciation of his property rights, such as the allocation of shares and division of property.
Further, the guardian, his spouse, and close relatives cannot enter into transactions with the ward during which the ward loses property rights. However, the listed persons may well transfer property to the ward for free use, as a gift. In addition, if housing is purchased by a minor (accepted as a gift), then permission from the guardianship authorities is not required, unless, of course, there is a simultaneous sale of existing property.
Conclusion
In conclusion, the specialists of the RealtyPress.ru portal would like to note that transactions involving minors, although they belong to the category of the most complex transactions, are not rare, much less impracticable. One of the ways to convince a potential buyer that the transaction is legally secure is to provide all the necessary documents. Naturally, these documents must be fully collected by the time the advertisement for sale is posted. The correct approach to determining the motivation for the sale will facilitate the process of obtaining permission from the guardianship authorities. A qualified lawyer can provide additional information that will increase the likelihood of a quick and profitable sale of an apartment in which one of the owners is a child.
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Recently, our magazine talked about the peculiarities of real estate transactions in cases where the seller or buyer are married. Today we will continue the “family” topic and talk about another very common situation - the presence of children in the apartment for sale. In such circumstances, the transaction also has its own characteristics.
This article is a reference and information material; all information in it is presented for informational purposes and is for informational purposes only.
For those who are interested in the previous article “” about husbands, wives and their deals, we provide the opportunity to read it: “”. And let's move on to the children's topic.
Up to 18, but with reservations
Let's start, as usual, with the basics - who are children? Despite all the apparent obviousness of the subject under discussion, everything is not so simple. Judge for yourself: Moscow passenger transport transfers a person to the category of adults from the age of seven - you have to pay for the fare. On the railway, a child's ticket is up to 10 years of age. A citizen of the Russian Federation receives a passport at 14. At the age of 18 comes the bulk of the joys and sorrows of adult life - the opportunity to work full time, get married, go to the army... The last “bell of youth” that I discovered in the laws was the age of 35 - with At this point, a citizen can be elected to the position of President of the Russian Federation. Although the last restriction is unlikely to have practical significance for 99.99% of the population, but still...
Regarding the subject we are discussing, i.e. real estate transactions, then the situation with them is like this. As rightly noted Sergey Popravka, director of the legal department of Penny Lane Realty, the current legislation of the Russian Federation does not contain the concept of “children” - it includes persons “minors” and “minors”. They do not have civil capacity, i.e. right “acquire and exercise civil rights, create civil responsibilities for oneself and fulfill them” .
The transition to adulthood, according to the law, generally occurs at 18 years of age. “This age is absolutely clearly established by Art. 21 of the Civil Code of the Russian Federation, says Oleg Samoilov, General Director of the company "Relight-Real Estate". “Upon achieving this, the citizen acquires full legal capacity.”
True, there are reservations here too. There is a concept of “emancipation”. According to Art. 27 of the Civil Code, it means declaring a minor fully capable. Condition – work under an employment contract or engagement (with the consent of parents, adoptive parents or guardian) in entrepreneurial activity. Emancipation can begin at the age of 16. A person also becomes fully capable upon marriage, even if this happened before their 18th birthday.
And the last thing to say here. Two paragraphs above we talked about “minors” and “minors.” The first are children under the age of 14, the second are from 14 to 18 (if emancipation has not occurred earlier, of course). The difference between these categories is explained Daria Pogorelskaya, head of the legal department of the MIC Group of Companies, is that minors do not participate in real estate transactions at all - documents are signed on their behalf by parents, adoptive parents or guardians. But minors must make transactions in person - but with the written consent of their legal representatives.
You can’t do without “guardians”
We have dealt with the fact that children under 18 years of age (not counting “emancipated”) must obtain the consent of their legal representatives - parents (or adoptive parents, guardians) for the transaction. But there is one more condition: the sale of real estate must be approved by a special government authority - guardianship authority
. This reminds specialists of the MIEL-Brokerage company, requirement of Art. 37 Civil Code of the Russian Federation and Art. 60 of the Family Code of the Russian Federation. Without a document from the named body, the purchase and sale agreement simply will not pass state registration with the Rosreestr Office.
Some time ago (until about the middle of the last decade), the consent of “state guardians” was required for any transaction where a minor was involved in one way or another. Then the situation changed: permission is still clearly needed in cases where a child is among the owners of the apartment being sold. But if he is simply registered there at his place of residence, then no. True, there are some exceptions to the latest “relaxation”: for example, if a minor lived in an apartment at the time of its privatization, but was not included in the list of owners, then permission from the guardianship authorities will still be required. Also, adds Nadezhda Dukhova, head of the sales department at the Arc de Triomphe real estate agency, in some areas of the Moscow region, territorial branches of Rosreestr require paper from the guardianship authorities and for those simply registered. Let's just say, “by inertia.”
We see: the auntie is sitting. Plenipotentiary looking...
Let’s take a closer look at the guardianship and trusteeship authorities, since they occupy such a prominent place in our narrative. The first oddity that caught the author’s eye back in the 90s was that the “guardians” do not have a “vertical”. If we take schools, for example, there are a series of bosses over the teacher, right up to the Minister of Education. Above the policeman there is also a whole pyramid, the top of which is the head of the Ministry of Internal Affairs. But the guardianship authorities don’t have anything like that - they’re just a specialist at the district level. As knowledgeable people said, about 20 years ago, when the first mayor of Moscow, G. Popov, created the city management system, he simply forgot about the vertical subordination of the “guardians” - apparently, due to their not very great importance.
Until about the mid-2000s, guardianship authorities worked as part of district administrations. However, then the next mayor, Yu. Luzhkov, started reforming the power system. It was declared as a transfer of part of the powers from appointed (government) to elected (municipalities) bodies. In practice, everything came down to the well-known “Oh my God, what is of no use to us”: the city authorities tried to give the most insignificant functions to the municipalities - “separate state powers in the field of education, guardianship and trusteeship, protection of the rights of minors, as well as in the organization of leisure, social and educational, physical education and sports work with the population at the place of residence”. Those. all that does not result in any income, but a lot of headaches. Thus, the bodies we studied ended up subordinate to municipalities.
Formally, they are called the “guardianship and trusteeship department.” But you need to understand that the head of the municipality (who is also the chairman of the guardianship commission) is physically unable to delve into all the details, so in fact, all issues are decided by the inspector - usually a lady of Balzac or post-Balzac age. And the head of the municipality simply signs the decisions she has prepared...
The kingdom of subjectivity
Now, perhaps, the main question is: on what basis does the guardianship decide that the transaction can be allowed? Having asked ourselves, we quickly discover that this question is essentially left to the discretion of the “guardians” themselves. “At the federal level, the legislator has not defined the criteria on the basis of which the guardianship and trusteeship authority is guided when making decisions,” notes Daria Pogorelskaya (“MIC”). “The guardianship and trusteeship authority checks whether the child’s rights are being deteriorated.”
“Indeed, each specific “guardian” decides this issue,” confirms Yuri Sharanov, General Director of the real estate agency "GTsN-group". – There is a general rule according to which the number of square meters per child should not decrease. However, exceptions are possible: for example, people move from the region to Moscow, where the cost of 1 sq. m above. In this case, an exchange will be allowed, in which the number of meters is reduced.”
“In addition to meters, the locality, region, infrastructure and condition of the apartment also play a role,” notes Arkady Vlasenko, General Director of AN Megapolis-Service LLC, Zheleznodorozhny. “If in the inspection report of the apartment being purchased, the inspector writes that the apartment requires repairs, is in unsatisfactory condition, and there is no school or kindergarten nearby (but there is a beer hall on the ground floor), then we will receive a refusal.”
The author can add the following on his own behalf. If as a result of the transaction the child clearly wins (more meters, better, newer house, etc.), then the consent of the guardianship authorities will, of course, be obtained - well, they are not animals! But in doubtful cases (say, less meters, but a better area), much depends on how the parents themselves will be able to explain why they are starting this exchange. I can give you a couple of examples that I have seen personally. In one case, the mother explained that she wanted to lose 3 sq. m, but to be in the south-west of Moscow - there is a grandmother nearby who will help take care of the little one, and very good schools around... Another time it turned out absolutely fantastic: a young family was leaving their mother-in-law - with her, as I understood, the daughter-in-law’s relationship decidedly did not work out. The mother-in-law shouted that the apartment was “entirely hers” and demanded that it be divided “in half” - i.e. half to her, and half to her son, his wife and young child. It is clear that with such appetites it was impossible to agree on a deal, and the guardianship inspector, looking at this family “Kabuki theater”, agreed to an option in which the child’s share was significantly reduced. And to make everything look legal, she herself (!) suggested that the young people write that their mother-in-law has a cat, and their child is allergic to wool...
In a word (this brings us back to the main line of our narrative), the decision of the guardianship authorities is quite often very subjective.
And - never!
It has been said many times that the sale of a secondary apartment and the subsequent purchase of a new building allows you to gain a lot in terms of the number of meters. The trouble, however, is that a “pit” is acquired, i.e. There is no new apartment yet, either legally or physically. And, as most of our experts confirmed, it is impossible to agree on such a deal with the “guardians.” “If the house is not built, the guardianship will not give permission,” expresses this opinion Olga Selyutina, head of the secondary housing department of the Russian Real Estate House company. “Since there are no real square meters, the cost of the object is unknown, its future is unclear.”
Other details
Let's now see what constitutes a permission from the guardianship and trusteeship authority. In terms of legal form, this is a municipal ordinance. It says that in response to an appeal from the applicant so-and-so, he is allowed to carry out a transaction for the sale of an apartment at such-and-such an address with the simultaneous acquisition of an apartment at such-and-such an address - with the obligatory condition that the share of the minor so-and-so in this apartment is not less, for example, 50%.
Typically, the document is issued within a month from the moment the citizen applies. But, as noted Elena Zhdanova, lawyer, managing partner of the law firm “Pravo.Real Estate.Family.”, they can do it faster. “If the applicant is “on fire,” the commission meeting can be held within a week,” says the expert.
The permit has no validity period. But it is valid only for those apartments that a family with a child intends to sell and buy. So if this deal falls through, then after selecting a new option you will have to go for a new consent.
And one last thing. Since, as mentioned above, “guardians” do not have clear regulations and “vertical lines,” it is very difficult to challenge their decisions. So in cases where - as it seems to you - the guardianship inspector refuses you without good reason, you can only complain to her direct superior - the head of the municipality. Or – universal advice – go to court. This recommendation, however, is as legally impeccable as it is practically meaningless: trials last a long time, so by the time you win an unconditional victory, the apartment you are interested in will have been sold long ago.
Resume from the portal
As always, contact with bureaucracy evokes mixed feelings. On the one hand, a “filter” in the form of guardianship authorities is necessary: otherwise many children would be left without Moscow housing. On the other hand, normal and law-abiding people should be prepared for the fact that their transaction will be longer and more complex.
It is necessary to obtain the consent of the guardianship authorities for the sale of an apartment in all cases when minor citizens are involved in the transaction. The procedure for obtaining such permission can be problematic, since protecting the interests of the child is always a priority when disposing of real estate.
What needs to be done to obtain the consent of the guardianship authorities
If a piece of real estate or a share in it belongs to a minor child, the disposal of housing will be carried out by his legal representatives (parents). Regardless of the terms of the transaction, for the sale of an apartment it will be necessary to obtain prior permission from the guardianship authorities.
These bodies are called upon to ensure the protection of the interests of the child when disposing of his property. For this purpose, guardianship authorities have the right:
- check the terms of transactions for the alienation of an apartment belonging to children;
- control transactions that result in a decrease in the child’s property assets;
- issue a conclusion based on the results of checking documents on the inappropriateness of selling property or on the conditions that parents must fulfill;
- give consent for the sale of housing.
The main requirement that will allow parents to obtain the consent of the guardianship authority to sell an apartment is the simultaneous acquisition of residential premises, similar in characteristics, level of amenities and cost, into the child’s ownership.
It is these circumstances that will be the subject of verification at the request of the parents-sellers. The absence of a permit will be grounds for declaring the transaction invalid at the request of the guardianship authorities.
The procedure for obtaining the consent of the guardianship authorities
Registration of a permit and compliance with the conditions for the protection of the rights of minors occurs in several stages. The initial stage will be notification of the guardianship authorities about the upcoming sale of the apartment to which the child has rights.
This application is submitted to the guardianship authority at the place of permanent residence of the family. In addition to indicating the terms of sale in the text of the application, it is necessary to submit the following documents:
- general passports of both parents;
- identification documents of the child (certificate or passport);
- consent to the sale of housing from the child himself, if he is already 14 years old;
- documents confirming the marital status of the parents (marriage or divorce certificate);
- transaction documents (in relation to the apartments being sold and purchased).
At the application stage, parents act as representatives of a child under 14 years of age. If he has reached this age, he has the right to participate in the transaction on an equal basis with his parents, but will act only with their consent.
When filing an application, the guardianship and trusteeship authorities are required to fulfill the following: mandatory activities:
- check the submitted documents to ensure that the interests of the child are met;
- if necessary, establish the actual condition of the purchased housing, conduct an on-site inspection and draw up a report;
- conduct a personal conversation not only with the parents, but also with the child over the age of 14 to establish the absence of violations of rights.
At the stage of verification of the submitted documents, the guardianship authorities study the title and technical documentation for residential premises for sales and purchase transactions. The documents include:
- extracts from the Unified State Register or certificate of entitlement;
- cadastral passports for residential premises and other technical documentation;
- inventory certificates from the BTI authorities, including the cost of objects;
- technical documentation for a residential building;
- certificates of absence of debts for housing and communal services;
- apartment cards or extracts from home books.
When checking these documents, not only the compliance of the characteristics of both apartments will be checked, but also the improvement of the purchased residential premises. This is necessary to prevent the replacement of one poorly equipped apartment with an object of similar characteristics.
Registration of consent to sell an apartment
If the guardianship authorities determine the equivalence of the apartments being sold and purchased, permitting documentation will be issued. The preliminary consent of the guardianship authority will be sent to the head of the municipality, who must issue a resolution to authorize the transaction with the child’s property. This resolution states:
- consent to sell the apartment on the terms set out in the contracts;
- a list of requirements that parents must fulfill within a specified period of time (for example, no later than a month after issuing consent to the sale, register the child’s ownership);
- opening a bank account in the child’s name to transfer funds from the sale of an apartment (allowed in exceptional cases);
- the obligation of parents to notify the guardianship authorities about the transaction and the registration of ownership of children.
This resolution will be the legal basis for the sale of the apartment; parents are required to present it to the Rosreestr authorities when carrying out registration actions.
After the sale of the apartment and the acquisition of new residential premises in the name of the child, it is necessary to notify the guardianship authority that issued the consent about this fact. To do this, title documents for the property must be submitted, in which the child will be indicated as the owner of the premises.
Failure to fulfill this obligation may entail liability in the form of the guardianship authority filing a claim in court to declare the transaction invalid, or to force the parents to register the ownership of the child. At the stage of judicial consideration of the case in court, the parents have the right to eliminate the violation and fulfill the conditions of consent to the sale of the apartment, i.e. register the property rights of a minor child.
Children are under special protection of our state, without whose consent transactions with their housing are not allowed. Both parents and guardians are required to obtain permission to sell an apartment to a minor from the guardianship authorities.
How to obtain permission from the guardianship authorities to sell a home
An adult is required to obtain permission for a transaction before registering housing to which a minor has ownership rights. To do this, you must submit an application accompanied by the required documents to the trustee body. This document notifies the state of the citizen’s intention to sell the child’s real estate.
An important point when making a transaction is the validity period of the guardianship permit for sale. As a general rule, it is equal to one month, unless a longer duration is indicated in it.
Requirements for selling an apartment
It is possible to obtain a guardianship permit if a number of conditions are met:
- The applicant must act in the interests of the particular youth homeowner and be his parent, guardian or custodian or designated representative.
- The property is sold simultaneously with the acquisition of equivalent living space. As confirmation, an independent assessment is carried out for guardianship to determine the market value of the home.
- All necessary documents are available.
- The state representative found no irregularities in the deal.
Requirements for a new apartment
New housing should not be worse than the one being sold. In no case should the child’s living conditions be worsened as a result of the transaction.
Can a guardian sell an apartment to a minor?
According to the law, a guardian has no rights to dispose of the property of a minor. Consequently, he cannot sell, mortgage, exchange, or donate real estate belonging to the ward. He only acts for the child, for example, signing documentation. For transactions involving the alienation of housing, the law provides for the issuance of preliminary permission from the guardianship and trusteeship authority (Article 21 of Federal Law No. 48 of 2008).
If the apartment was purchased with maternity capital
In this case, the parents are obliged to provide the child with a share in the purchased property. Moreover, it must correspond to the size of the area alienated from him. If this requirement is not met, the transaction may be declared invalid by the court at the request of the guardianship authority or the prosecutor's office.
If the child is registered
Regardless of the presence of registration on the living space being sold, the minor owner is a party to the transaction. Therefore, the sale of an apartment without the consent of the guardianship and trusteeship authorities is unacceptable (clause 4 of Article 292 of the Civil Code of the Russian Federation).
Permission is not required if the child is only registered in the living space, but is not its owner.
Can a guardian sell an apartment owned by an incapacitated ward?
With the consent of the trustee body, the sale of an apartment by the guardian is possible in certain cases established by law:
- if the living space has not been foreclosed on due to the need to secure the debt obligations of the ward;
- when exchanging real estate, if it is beneficial for the ward or in an exceptional situation (for example, there is an urgent need to pay for expensive treatment).
Attention! The right of a guardian to enter into transactions with the ward’s housing for his own benefit has limitations.
He is prohibited from selling such property to himself, his spouse or close relatives (Article 37 of the Civil Code of the Russian Federation).
Is it possible to fulfill the obligation to allocate a share after the sale?
The law states that you can sell an apartment or a share in it that belongs to a child if you have two documents from the guardianship and trusteeship authorities:
resolutions on the alienation of property;
consent to purchase new living space.
From this list it is clear that the purchase and sale of residential real estate must be carried out simultaneously.
If a minor is the owner of the property, a “clean” transaction cannot be carried out. Housing can only be changed. The parent has an obligation to allocate the child’s share in the new property. In this situation, it is impossible to do without the participation of a government representative.
Before the alienation of living space, it is necessary to collect the documentation required to complete the transaction, including permission from legal representatives. Then find an option for exchange. Only after this is it necessary to apply to the guardianship for permission to sell and purchase other housing with the allocation of the child’s share in it.
When it is necessary to sell real estate without exchange, it is necessary to allocate a share to the child in another place. For example, a relative may give him a share in his house, thereby ensuring allocation.
Procedure for completing a transaction
The step-by-step procedure for selling an apartment is determined by law and involves visiting:
- passport office;
- guardianship authority.
At the passport office you should obtain a certificate of citizens registered in the alienated living space.
To contact the guardianship and trusteeship authorities when selling an apartment, you also need to prepare other mandatory documents and write an application:
- with justification of the reason for the sale;
- indicating that all rights of the child are observed when making a transaction.
An application for the sale of a minor’s apartment or a share in it is drawn up and signed by the parent (guardian) in the presence of a state representative. It can be submitted through a multifunctional center that has recently been actively providing government services, including issuing preliminary permits from guardianship and trusteeship authorities. For registration, it is recommended to use a sample application for guardianship and trusteeship for a purchase and sale transaction.
List of documents
The list of documentation for guardianship authorities includes:
- Documents on ownership of the living space being sold and purchased.
- Preliminary agreement for the purchase and sale of an apartment.
- Passports of all co-owners of the living space (birth certificates of citizens under 14 years of age).
- Consent of adult sellers to the participation of a minor in a transaction, certified by a notary.
- A report from an independent company, which provides an assessment of the apartment for guardianship, confirming the comparability of the cost of the housing being sold and purchased.
Additionally, the notary may be required to request the original of the guardianship consent if the transaction for the sale of an apartment is due to the child’s need for a change in climate. This fact must be confirmed by a medical certificate. If living conditions deteriorate for a good reason, it must also be documented.
Terms of consideration
The law establishes a one-month period for consideration of the application. However, usually permission from the guardianship authorities is given earlier. Sometimes it can be reduced to two weeks. It would not be amiss to ask a guardianship specialist to quickly review the application for permission to sell the apartment.
Legislative regulation
The regulatory framework for the procedure for selling housing to minors and obtaining permission for such a transaction is:
- Chapter 14 of the Civil Code of the Russian Federation (part one) of November 30, 1994 (Federal Law No. 51).
- Chapter 11 of the Family Code of the Russian Federation of December 29, 1995 (Federal Law No. 223).
- Housing Code of the Russian Federation dated December 29, 2004 (Federal Law No. 188).
- Federal Law “On Guardianship and Trusteeship” dated April 24, 2008 N 48-FZ.
This is the question I received from the apartment seller:
Hello, please tell me, is it possible to sell a privatized apartment where a child has a share in the privatization (you need to leave your parents), if immediately after the sale we buy another one in the same area? During the sale, I can register the child in a municipal apartment.
I often encounter misunderstandings among clients on this issue. Let's figure it out.
The consent of the guardianship and trusteeship authorities when selling (exchanging) an apartment is required only if a minor is among the owners of the apartment being sold. If the child is only registered at his permanent place of residence in the apartment, and is not a co-owner, the consent of the guardianship and trusteeship authorities is not required when alienating the apartment.
So in this case, deregistration of the child will not free the seller from the need to obtain the consent of the guardianship and trusteeship authorities to sell the apartment.
So, the child is a co-owner of the apartment, i.e. is one of the owners. The sale of such an apartment (as well as exchange, moving away) is possible only with the permission of the guardianship and trusteeship authorities at the place of registration of the child. The guardianship and trusteeship authorities give consent to the transaction, subject to the registration of ownership of the minor’s share in the newly purchased apartment or in some other one.
Civil Code of the Russian Federation, part 1
Article 37. Disposal of the property of a ward
2. The guardian does not have the right, without the prior permission of the guardianship and trusteeship body, to carry out, and the trustee does not have the right to consent to, transactions involving the alienation, including the exchange or donation of the ward’s property, leasing it (lease), for free use or as a pledge, transactions , entailing the renunciation of the rights belonging to the ward, the division of his property or the allocation of shares from it, as well as any other actions entailing a decrease in the property of the ward.
The procedure for managing the property of a ward is determined by the Federal Law “On Guardianship and Trusteeship”. (Federal Law of April 24, 2008 N 49-FZ)
3. The guardian, trustee, their spouses and close relatives do not have the right to enter into transactions with the ward, with the exception of transferring property to the ward as a gift or for free use, as well as to represent the ward when concluding transactions or conducting legal cases between the ward and the spouse of the guardian or trustee and their close relatives.
Federal Law of April 24, 2008 No. 48-FZ “On Guardianship and Trusteeship”
Article 21. Preliminary permission of the guardianship and trusteeship authority affecting the exercise of property rights of the ward
1. The guardian, without the prior permission of the guardianship and trusteeship body, does not have the right to carry out, and the trustee does not have the right to give consent to, transactions for the rental of the ward’s property for rent, lease, free use or collateral, for the alienation of the ward’s property (including exchange or donation), making transactions that entail the renunciation of the rights belonging to the ward, the division of his property or the allocation of shares from it, and to carry out any other transactions that entail a decrease in the value of the ward’s property. Prior permission from the guardianship and trusteeship authority is also required in all other cases if the actions of the guardian or trustee may result in a decrease in the value of the ward’s property...
2. Prior permission from the guardianship and trusteeship authority is required in cases of issuing a power of attorney on behalf of the ward.
3. The preliminary permission of the guardianship and trusteeship authority provided for in parts 1 and 2 of this article, or the refusal to issue such permission must be provided to the guardian or trustee in writing no later than fifteen days from the date of filing the application for such permission. The refusal of the guardianship and trusteeship authority to issue such permission must be motivated. A preliminary permission issued by the guardianship and trusteeship authority, or a refusal to issue such permission, can be challenged in court by the guardian or trustee, other interested parties, as well as the prosecutor.
4. If it is discovered that an agreement has been concluded on behalf of the ward without the prior permission of the guardianship and trusteeship body, the latter is obliged to immediately apply on behalf of the ward to the court with a request to terminate such an agreement in accordance with civil law, except for the case if such an agreement was concluded for the benefit of the ward. Upon termination of such an agreement, the property belonging to the ward is subject to return, and losses caused to the parties to the agreement are subject to compensation by the guardian or trustee in the amount and in the manner established by civil law.
5. The rules established by Part 3 of this article also apply to the issuance by the guardianship and trusteeship authority of consent to the alienation of residential premises in the cases provided for in paragraph 4 of Article 292 of the Civil Code of the Russian Federation.
In other words, selling an apartment in which a minor is a co-owner will simply not work. You will definitely need to allocate something in return somewhere.
- Option one. You are selling an apartment in which there is a minor owner and at the same time registering for him a share in the newly acquired apartment.
- Option two. If you want to sell an apartment that includes a minor child as the owner and do not want to purchase anything in return, you will still have to allocate the child's share somewhere else, for example, in a grandparent's apartment.
- Third option. Exotic. You can deposit a sum of money from the sale of an apartment, equivalent to the value of the minor’s share, into his account until he reaches adulthood. In this case, the acquisition of other real estate in the name of a minor is not required. Which is very rare.
The question arises: Where to allocate the share? And how many? I often come across the opinion of sellers that everything is easy and simple. Let's say an apartment with an area of 51 sq.m. was registered as common shared ownership of the parents and child, 1/3 of a share each. And the child “accounts for” 17 sq.m. area. But this does not mean at all that the guardianship authorities will give consent to the sale of the apartment, subject to the acquisition in the name of the child of any real estate or a share in it with an area of 17 sq.m.
When considering a parent’s application for the sale of an apartment where the child is one of the owners, the guardianship authorities are guided, first of all, by the interests of the minor. The rights of the child should not be infringed and living conditions should not worsen after the transaction.
When deciding on the possibility of carrying out a transaction, guardianship officers comprehensively consider many aspects of the upcoming transaction:
- - area of purchased real estate (share);
- - cost of real estate;
- - the composition of the family who will live in the apartment purchased for the child;
- - location of the purchased property (for example, Moscow - Moscow region);
- - reasons for sale (improving living conditions, traveling with relatives, divorce) and a number of others.
Moreover, the criteria for making a positive decision may depend on the specific guardianship and trusteeship authority. As well as a set of documents that must be provided to consider the sale of an apartment.
As an example:
The family privatized a three-room apartment with an area of 68 sq.m. The owners were parents, a minor son and grandmother. And they wanted to improve their living conditions by buying a large four-room apartment in a new building. But, as is known, the guardianship authorities do not give consent to the transaction if an apartment in a new building is “purchased” as an alternative apartment in the child’s name (i.e., the developer acquires the right to demand registration of ownership of the apartment after putting the house into operation). The parents considered that since the child has 17 sq.m. housing, then it will be enough to buy a “hotel” in his name. And they paid an advance for an apartment with an area of 24 sq.m. We collected the documents and went to the guardianship. For consent to carry out the transaction. But that was not the case.
The guardianship board inspector said something like this:
- The child is 8 years old. At this age, he cannot live without his mother. This means that he is expected to live with his mother in this small one-room apartment. And even different sexes. And the actual living area has become smaller - 12 sq.m. instead of 17 sq.m. No.
And she refused. It’s good that the parents entered into an agreement on an advance payment with the seller of the “hotel”, and not an agreement on a deposit. We didn't lose any money.
You can sell the apartment and not buy anything in return if you have the opportunity to register a share in another apartment as the child’s property. For example, a grandmother who dearly loves her grandson can give him a share in her apartment. If you already have a buyer for the apartment, then you collect a package of documents for both apartments and submit them to guardianship. Having received the consent of the board of trustees to sell one apartment while simultaneously allocating a share in another, carry out the transaction.
But don’t rush to transfer this share to your child in advance!
Here's what might happen:
The parents entered into an agreement with the developer to purchase a new building. They took out a mortgage loan with the expectation that after moving into the purchased apartment, they would sell the old one and pay off the loan. Knowing that it would not be possible to sell the previous apartment without allocating a share to the child, after putting the house into operation they hastened to include the child among the owners of the new apartment. And they fell into a trap. It turned out that the child still had a share in the previous apartment and appeared in the new one. And then try to prove to the board of guardians that they allocated a share in the new apartment precisely with the expectation that the previous one would need to be sold.
Therefore, it is necessary to re-register the share to the child at the time of the transaction. That is, we sell one and buy another. Simultaneously. But if you need to register a share for a child in advance (if you already have permission from the guardianship and trusteeship authority, this will help you find a buyer faster), contact the guardianship council. Let the inspector know about your plans and get permission to sell your apartment with preliminary registration of a share in another apartment as the child’s property. The resolution of the board of trustees will say: “Allow the sale of an apartment at the address ....., where the co-owner is a minor .... subject to the preliminary registration of .... the share of the apartment at the address ..... in the name of the minor...”
Attention! In any case, before planning the sale (exchange, departure) of an apartment in which the child is included as a co-owner, visit the guardianship authority at the child’s place of registration. Show the documents for the apartment you are selling and ask for what kind of housing and under what conditions the board of trustees will issue you permission.
