Member of the DTU (Participation Agreement), who bought a premises from the developer at the initial stage of construction, has the right to sell his other party Until the commissioning of the building. (read)
Between the buyer and the shareholder signed an agreement on the assignment of law. On this, the intention of the participants of the transaction writing in writing to the developer, providing him with a copy of the contract. Construction company must give its consent.
Cessia is regulated by Federal Law No. 214th Article 11.
Information buyer
When purchasing an apartment for assignment of rights, there are nuances:
- When designing, the type of initial contract is indicated - the basis of the transfer of rights.
- The document attributes a fixed amount and calculation procedure. Without this point, the deal can be recognized illegal.
- The developer documents for construction actions are checked.
- The assignment agreement is certified by a notary.
- The buyer notifies the developer about the transaction, in independence is registered this item in the document or not.
Grounds for concluding a contract
The grounds for signing the transfer document are regulated by the 328th article paragraph 1 of the Civil Code of the Russian Federation. The right tool is the right to property (confirmed), according to the law, can be transferred to the other Party for the concluded transaction.
It is possible to transition during succession (inheritance) or the reorganization of a legal entity, if the organization owns the organization.
The shareholder can give way the right requirement if the conditions are followed:
- The concession occurs after. Or the debt to the new person of equity participation in the contract is translated. The second side will pay the developer.
- The assignment is allowed from the moment of fixing the DDU document, until the parties are assigned to the parties, or other paper on the transfer of the building into operation.
The initial person who gave way to the requirement is responsible for the invalidity of the transferred right to the new member of the contract. But the shareholder is not responsible for failure to fulfill the obligations of the developer.
Exception: Member of the DTU was commissioned for the company before the new shareholder.
Algorithm of concluding contract
- Check the developer documentation.
- Preparation of papers of participants.
- Preparation of contract.
- Logging Agreement.
To check the paper, companies are requested to the office of the organization engaged in construction. The administration is obliged to submit to the first requirement required paper:
- Constituent certificates of the enterprise.
- Registration Certificate and Inn.
- Patents on Earth - property or rent.
- Quarterly financial extract.
- License to build.
Together with these testimonies, the buyer has the right to request plan for construction. It indicates:
- Designed goal.
- Stages of construction.
- Implementation of the construction of the building (term).
- The time of delivery of the house for use (estimated).
The organization must have a project declaration that prescribes the method of fulfilling the obligation of the developer. And the contract confirming the basis of which (funds), the construction is carried out.
Parties to the transaction
Before implementing the room the seller performs actions:
- Notifies the developer about the sale - the organization is notified in writing. If the company is not warned about changing the shareholder, then the transaction can be found illegal.
- The developer issues a written permission - the company requires up to 5% for the concession process. Since the seller sells the area mainly at the price higher than acquired from the company.
- The company issues a certificate of debt to the Agreement.
- Consent (certified) one of the spouses for sale - when purchasing a placement in marriage. About the division of property.
- The permission of the bank - when finding an apartment in mortgage mortgage.
- Extract from the USPR (unified state register of rights).
The buyer before the acquisition should be enlisted by the resolution of his wife / husband (buying property in marriage). The future shareholder signs and receives a loan agreement if the living area is bought by mortgage.
Proper compilation
After all actions, an agreement is drawn up to be registered. Paper is drawn up in a construction organization, in a real estate agency or a lawyer.
The contract is prescribed:
- Subject of the Agreement - FIO participants, DTD participation No., Transmission Object (Number of rooms, General and living area, Room room).
- Cost, procedure for calculations, ensuring the fulfillment of payment obligations.
- Responsibilities and responsibilities of the parties.
- Conclusion, addresses and signatures of the participants of the Agreement.
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Time for registration
Registration takes place in the Registration or Cadastral Chamber and MFC (Multifunctional Center).
In the presence of an employee, participants sign an agreement and provide documents:
- Identification.
- The consent of the spouses if necessary.
- The acquisition document, previously signed with the developer.
- Information about the debt before the enterprise or paper on the transfer of debt to the new shareholder.
- Permission of the company to assign rights.
- Confirmation from the bank (at a pledge) and a loan agreement, if there is a mortgage.
After transferring documents, the state duty is paid. Each buyer has its own receipt. The registrar fills the application. It indicates: an object, technical parameters and data of purchase and sale participants.
An employee of the cadastral service takes a signed agreement, originals and copies of papers. The seller and the buyer give a receipt to receive from the date of the registered document.
Cancellation time - from 5 to 10 business days.
At the appointed time, the acquirer takes a certified contract. The seller receives a document, originally signed with the developer.
What are the features?
Buyer replaces the initial owner. By agreement, he receives the volume of rights that the seller was.
DTD participant has the right to demand the transfer of property at agreed time. But the equity document is subject to mandatory registration, and the right of demand comes into force from the moment of assurance. The transfer of DDU rights is carried out, and it can take up to several months.
But if the meters are transferred to the shareholder, then the cession is deprived of meaning: the developer fulfilled its guarantees, and the shareholder realized the right DDU. In this case, a conventional sale contract is signed.
When DDA assignment is carried out only from the date of registration before the room is transmitted to the owner.
Conclusion
Representation of the rights of claim is not as such a document on the purchase and sale of residential area. This is a way where there is a change in the parties (pricing or acquirer) with an agreement with the developer.
Paying the funds under the contract, the new owner buys rights and responsibility on the main document concluded earlier with the construction company.
The assignment is rated by the NDFL rate:
- Resident of the Russian Federation - 13%.
- Non-resident - 30%.
Without paying the price of the contract, the requirement to the developer on the transfer of the apartment cannot be implemented. Therefore, Cedent, who concluded an agreement on the assignment of the right to acquire the object of equity construction with a violation of the requirements for the full payment of the contract price or the transfer of debt to the cessionary, is responsible for the concession for the failure to fulfill its obligation under the CESSIA Treaty due to the impossibility of transferring the real law (Art. 390 of the Civil Code of the Russian Federation , Decree of the FAS of the Volga District dated January 19, 2012 N f06-11733 / 11).
Moreover, a compensated assignment to a citizen of the rights of claims under an agreement in equity construction, perfect with violation of Part 1 of Art. 11 of the Law of N 214-FZ (for example, in the absence of a full payment of the contract price and the transfer of debt to the cessionary), according to some of the courts, it is the basis for attracting a cents to administrative responsibility under Part 1 of Art. 14.28 Administrative Code of the Russian Federation as a person who does not possess the status of a developer, which attracted the funds of a citizen for the construction of a real estate object in violation of the procedure provided for by law N 214-FZ (Resolution of the FAS of the North Caucasus District dated December 14, 2012 No. F08-7304 / 12).
The contract and (or) assignment of the rights of claims under the Agreement is subject to state registration (Article 17 of the Law N 214-FZ). At the same time, the general rule of paragraph 3 of Art is applied to the agreement of participation in equity construction and the agreement on the assignment of rights under this contract. 433 of the Civil Code of the Russian Federation, according to which the contract to be state registration is considered for third parties concluded from the moment of its registration. The nonconnectness of the right and obligations for third parties does not generate, therefore, the agreement on the assignment of rights, based on an unregistered agreement of participation in equity construction, can not entail the emergence of rights (requirements) in relation to the developer (Resolution of the FAS of the Uralsky District 04.12.2012 N F09-11083 / 12). The conclusion of the CESSIA Agreement under such circumstances may be the basis for laying responsibility for the rules of Art. 390 of the Civil Code of the Russian Federation (Decree of the Twelfth AAS of 09.11.2012 N 12AAP-7339/12).
Similar consequences can lead to the evasion of the cable from the accomplishment actions aimed at state registration of the assignment of the rights of claims. In particular, this may be the basis for the application of the guidance in judicial order. Requirements for the return of the CESSIA certified under the contract (definition of SK on civil cases of the Moscow City Court of 05.08.2010 No. 33-23553).
When evasion of the cable from the actions necessary for state registration of the contract, the cessionary can protect its rights by applying to the court with a claim on registration of the CESSIA transaction (paragraph 2 of Art. 165 of the Civil Code of the Russian Federation, the decision of the eighth AAS of 09.08.2012 N 08AP-4469 / 12).
As a general rule, the right of the initial lender proceeds to a new lender in volume and on the conditions that existed by the time of the transition of law. In particular, the new lender is transferred to the rights that ensure the fulfillment of the obligation, as well as other related rights, including the right to unpaid interest (Article 384 of the Civil Code of the Russian Federation). This means, in particular, that all the rights of participant in shared construction are also transferred to the new lender under the Treaty of Participation in Share Construction Agreement from the moment of the transfer of the right to transfer to him, for example, the right to require the payment of a penalty in case of violation of the provision of the Term Construction Object . The right to apply responsibility to the debtor for the delay in fulfillment of the obligation arises from Cessionary regardless of whether he was notified of the delay in the debtor when concluding an assignment agreement (part 2 of Art. 6 of the Law N 214-FZ, paragraph 1 of section "The Judicial Collegium civil matters "review of the judicial practice of the Supreme Court of the Russian Federation (approved by the Presidium of the Supreme Court of the Russian Federation 25.11.2015), the definition of SK on civil cases of the Supreme Court of the Russian Federation dated 08.12.2015 N 5-kg15-156, the resolution of the Far Eastern District FAS from 08.10.2012 N F03 3956/12).
The N 214-FZ law does not contain special requirements for the form and essential conditions of the contract of assignment of rights under the Treaty of Participation in Share Construction. Consequently, the form of such a contract applies general rules on the form of a cessia agreement, in other words, as a general rule, it must be concluded in simple writing (paragraph 1 of Art. 389 of the Civil Code of the Russian Federation). Essential for this type of contract, as for any concession agreement, is a condition for its subject matter - a specific commitment, from which an exemplary right arose (paragraph 1 of article 382, \u200b\u200bparagraph 1 of Art. 432 of the Civil Code of the Russian Federation). As evidenced by law enforcement practice, the obligation can be determined by indicating in the CESSIA Treaty on the details of the Treaty of Participation in Share Construction, the rights of the requirements for which are inferior to (see, for example, the Resolution of the FAS of the West Siberian District from 01.06.2011 N F04-2139 / 11).
In the contract participation in the share of the shareholder, several persons can participate, since the law is not limited to the law. In this case, it is necessary to keep in mind that the assignment of rights for such a contract is possible by one of the shareholders if the subject of the contract is divisible (paragraph 3 of Art. 384 of the Civil Code of the Russian Federation), in particular, if the parties in the share of participation in the share of participation The right of ownership of real estate, which will acquire shareholders after the completion of construction (the resolution of the Far Eastern District, from 10/25/2010 N F03-7577 / 2010). At the same time, the law does not require the consent from the cable to obtain the consent of other shareholders for the assignment of the rights belonging to him under the Treaty of Participation in Share Construction. However, law enforcement practice on this issue has not yet developed.
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Denis Artemov, the leading lawyer of the law firm Via Lege, told the portal of Novostroy, that such a contract for the rights assignment of the rights of claim (CESSIA), how to properly apply in the market of new buildings and minimize possible risks.
Under the agreement of the assignment of rights (on Latin "Record" - "Cessio", "Cessia") one person transfers the right to the right of execution of any obligation. Under the contract, the assignment can be transferred and the obligations themselves - the receiving party must fulfill them in favor of a third party.
In the case of apartments in new buildings, the copyright holder (cedent) transfers the right-to-consurers (censionary) based on the contract. The right demand for the developer of the transfer of an apartment after commissioning is commissioned.
The contract of assignment of rights is largely similar to the sales agreement, therefore, so that it is easier, we will call the copyright holder - the seller, and the right-accepter is the buyer.
The concession contract is widely used in the implementation of apartments in new buildings. The fact is that, firstly, as the cost of housing in new buildings is growing, which makes it possible to invest in the aim of further profit. Many investors are not waiting for the end of the construction and design of the apartment in the property, and seek to sell real estate earlier. For this, they use the assignment of rights.
Secondly, the contracts for participation in shared construction (DDU) can only be concluded while construction is underway - that is, until the date of commissioning is commissioned. And purchase and sale agreements - only in the presence of an accredited ownership of an apartment. At the same time, quite a long time from the entry of the facility, during which the developers fall out of the phase of the active implementation of apartments. As a result, they conclude DDD for the remaining volume of apartments with one of their structures, which in the future without a rush is engaged in sales under the concessions contracts.
It is noteworthy that the use of such a type of contract is beneficial to both parties of the transaction. The seller can get money for an apartment without passing the procedure for its adoption on the act of acceptance and transfer of property rights, as well as without additional costs. Buyer - buy an apartment not "from scratch", track the course of construction and its pace (and the price of the apartment in this case is lower than after entering new buildings and design the right of ownership).
Underwater rocks
The contract assignment must comply with certain requirements. Chapter 24 of the Civil Code of the Russian Federation is devoted to the change of persons in obligations and introduces a number of important rules. The most significant law refers the following:
The contract of assignment should be drawn up in writing, and the assignment of DT rights is necessary to undergo state registration (at the same time, the rights of the new person appear on the apartment from the moment of state registration);
The contract must clearly define the subject of the transaction (apartment), its price is indicated, the procedure for calculations;
If the binding written consent of the developer for assignment is provided in the contract of participation in shares, it is necessary to obtain it - otherwise the transaction may be invalid.
Article 11 of the Federal Law "On Participation in Share Construction ..." complements this list of two more conditions:
The seller can give up only a fully paid apartment or the buyer must make commitment to pay for debt;
The assignment is possible only until the transfer of the apartment on the act (the rule proceeds from the essence of the concession contract: when signing the act, the right of the demand of the transfer of the apartment is realized - there is nothing to reflue).
In addition, the following points are important:
In the contract of assignment, the seller must guarantee the legal purity of the apartment (not laid, not arrested, it does not have the right of third parties, there is no judicial dispute);
In accordance with Article 385 of the Civil Code of the Russian Federation, during the assignment of rights the seller transfers to the Buyer with its advantageous documents (participation in equity construction, payment documents). It is important to make a separate act about this);
The fact of the full calculation of the buyer with the seller to avoid further disagreements also need to confirm the act - about mutual settlements;
The developer must be notified in writing about the assignment of rights, the buyer is responsible for the lack of notification;
Before the conclusion of the assignment agreement, it is important to make sure that the rights are remedied, in particular that the contract is not terminated and fully paid.
The easiest way to check it is to request an extract around the apartment from a single state register of rights. It should be confirmed by the reality of the contract (whether it is not terminated) and the right holder of the apartment, there is no information about the presence of mortgages, judicial arrests and other burdensions.
It is also possible to come together with the seller to the Developer's office: the developer is not interested in not paid or invalid rights to the apartment sold to third parties. In addition, the developer has its own copy of documents that make up the legal history of the apartment, with which you can verify the paper provided by the seller.
After the conclusion of the assignment agreement, the buyer "remains one on one" with the developer, so it is also important to familiarize yourself with the main guidelines for construction documents:
Order of the head of the local administration on construction;
Agreement between the administration and the developer on the construction of a residential building;
Land lease agreement (certificate of ownership);
Construction permit;
Positive conclusion of state expertise on the construction project.
The developer manager may also report other meaningful information: for example, new construction deadlines (they can shift); About the preliminary approaches of the apartment (if the area increased, from the buyer in the future will take extra charge) and about the approximate cost of the exploitation of the apartment (in the contract it does not appear).
Studying the contract itself, it is necessary to pay attention to the fact that it should be flashed and have a rectangular stamp of the Federal State Registration Service for the registration.
The seller is also obliged to provide documents confirming the payment made: receipts to the acquisition of cash orders, bank payment orders, acts of reconciliation of calculations.
If the apartment was purchased to a mortgage, there must be written confirmation that credit commitments are fully repaid. In the case of an outstanding mortgage, a bank must be brought to the transaction, which, at the expense of the buyer paid by the Buyer, closes the credit obligations of the Seller and removes the deposit from the apartment.
Organization of settlements under the concession agreement between the buyer and the seller
When concluding an agreement assignment of rights of claims, the seller risks sign an agreement, pass it on registration, but not to receive the cost of the apartment. For the buyer, the danger is directly opposite - he can give money, but not get from Rosreestra confirmation of the transfer of rights (for example, due to litig arrests).
Therefore, the most optimal form of calculations - through a bank cell, the condition of access to which is registered in Rosreestre the concession of rights.
Recently, a bank letter of credit for non-cash settlements began to apply (the principle is similar to a leased cell). But the cost of banking services on a letter of credit is significantly higher, so as long as it has not been widespread.
Indication in the contract concession of an incomplete price of the apartment
Article 210 of the Tax Code of the Russian Federation refers to a taxable database for calculating 13% NDFL all taxpayer income received in cash. Revenues from concessions are not an exception. In practice, this leads to attempts to indicate in the contract the reduced price of the apartment, which is often equal to its value under the contract of equity participation.
In this case, in addition to the obvious violation of tax legislation, the Buyer assumes an additional risk that can be implemented in the event of further recognition of the assignment of invalid by the court decision.
According to Article 167 of the Civil Code of the Russian Federation, the consequence of the invalidity of the transaction is the so-called bilateral restitution, when each part is obliged to return another all received by the transaction. And if the seller gets back the apartment, then the buyer is only the documented value of the apartment.
Thus, in the contract it is desirable to indicate the actual market value of the apartment. But even if it does not happen, the buyer should take care of confirming the fact of payment of the entire amount (for example, with the help of additional receipts).
The role of the developer
Often the functions of registration of assignment takes on the developer. It helps the parties to prepare the necessary documents, constitutes a concession agreement, transfers it to state registration. In cases provided for by DDU, the developer acts as a third party under the contract or gives separate written consent to the concession. Of course, the parties of the transaction is beneficial.
But there is also the reverse side of the medal. As a rule, such developer services are paid. Their cost of the developer establishes independently: state regulation of this issue does not exist. There are also no recommendations, who exactly carries the costs - the seller or buyer.
Therefore, it is important to clarify the cost of the development of the developer in advance so that when carrying out the transaction it did not turn into an unpleasant surprise.
When the seller did not fully pay for the apartment (for example, by installments), the involvement of the developer to the transaction becomes mandatory. In this case, part of the paid funds, the buyer lists the developer at the expense of debt repayment, and the rest is the seller.
However, the accompaniment of the transaction by the developer does not solve all the difficulties. On the contrary, to legally attract the developer to justice for possible mistakes in the design of the contract is extremely difficult, so the parties should carefully study the documents and negotiating all the nuances in detail.
Other nuances
The rights to the builder on an apartment relate to property rights. So, the law is allowed assignment of rights in fractions, i.e. They can be decorated for several people who are vendors. Similarly, things are concluded with buyers who can also be a lot.
In addition to the DDD, the developers use other types of real estate sales contracts in new buildings. For example, a PGCP or a participation contract in the hsk. Despite the fact that the assignment of rights to the apartment on them is largely different from the concession on DDU, much of the considered in this article applies to such varieties of cessia.
In conclusion, it should be said that the contract of assignment of the rights of claims, as well as other types of civil law transactions, is aimed at implementing free property and money circulation and is intended to promote parties in achieving mutually beneficial results.
It is very important to pay attention to the correctness of the execution of documents (in order to avoid mistakes and inaccuracies), to plan and properly distribute the competence of the parties to the preparation and the provision of the necessary documentation.
Have you changed your mind to buy an apartment in the selected area of \u200b\u200bthe city, but the contract of equity participation in construction has already been signed? You urgently needed money and you want to sell our stake in the house under construction on the principle of equity participation in construction? In this case, it is simply necessary to draw up a contract of concession of the right of claim (CESSIA) under the contract of equity participation in construction, and if briefly (CESSIY CESSIA). But on the other hand, the next question arises, how to make this transaction correctly and what is the nuances? That is why our qualified lawyers located in Cheboksary prepared for you the relevant document so that you can download for free without registration of a typical sample (example) forms (form) assignment of the right claim under the contract of equity in construction (CESSIA CESSIA DD sample), which meets legislative Acts of 2020, thanks to which you make this transaction correctly, to minimize the risks of the loss of your money.
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Attention!!! Read the useful information below, to properly compose Cessia contract for DDU.
At the end of the text Bonus
For residents of Cheboksary
It's important to know! Be sure to read
This agreement of the assignment of the right to participate in the share construction of an apartment building is regulated by the following legislative acts: Chapter 24 Paragraph 1 Part 3 The assignment of the requirement (CESSIA) of the Civil Code of the Civil Code and the Federal Law "On Participation in the Share Construction of apartment buildings and other real estate objects"
The main nuances of the CESSIY CESSIA Agreement
- Move the right to demand only before signing the acceptance act, after this, the cessia agreement will not conclude.
- The contract of assignment of the rights of the claim lies in writing and is subject to mandatory state registration - by virtue of Art. 4 and 17 № 214-ФЗ. The contract comes into force only after its state registration. This means that no payments should not be carried out before the state registration of the assignment agreement.
- Check if in the Treaty of Participation in the Share Construction Item on the assignment of the right of claim.
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The following package of documents relating to the transaction is required:
- initial shareholder agreement (original and notarized copy);
- payment documents confirming that the payment on DDU was fully made;
- Perhaps, a certificate from the developer that, on a specific object of equity construction (for example, an apartment), the obligations of the shareholder fulfilled fully and on time, material or other claims, the developer does not have an initial shareholder and does not object to the assignment;
- The written consent of the developer, in case the contract has an item that only in this case the assignment of the rights of claim is permitted;
- permits of the credit institution if the apartment was acquired by a participant in equity construction using mortgage funding;
- notarized the consent of the spouse, if the participant is married;
- If the right demand is pledged, the written consent of the pledgee;
- The consent of the custody and guardianship bodies on the assignment of the rights of the claim under the contract, if the participant of shared construction is a minor (incapable).
- The assignment contract should not contain paragraphs that change the conditions of the initial DDU. All conditions must be saved.
- Payment under the assignment agreement The right of claim is carried out on the conditions that are written in the contract, therefore it is necessary to carefully treat this part of the agreement.
- The previous salesteller brings before the new responsibility for the reality of the right transferred to them, but not for the execution of its duties.
- If the assignment is framed before the initiation of the bankruptcy case of the developer, then the guarantees of the Federal Law of July 29, 2017 No. 218-FZ "On the Protection Rights Fund" are applied.
- It is necessary to check that there are no burdens on the apartment (mortgages). Also make sure that the payment was made on all concessions if there were several of them.
We hope that this sample shape of the contract of the assignment of the right claim under the contract of equity participation in construction (CESSIA CESSIA DDA sample), complying with the legislative acts of 2020, will help keep your precious time, nerves and money that could spend on
