Is it possible to give an apartment if it is in mortgage - options for solving the issue. Given the share in a mortgage apartment

Mortgage - one of the most available methods Become owner of one's own housing. This can be done without having large savings, due to the fact that the property will be paid by the bank, and the borrower only needs to return money to him, making a monthly amount of money. But, given the term of the mortgage loan (up to 30 years), it is often necessary to commit certain legal action with property. At the same time, it is important to know what rights is the borrower, for example, can I give an apartment in the mortgage. Given the specifics of credit real estate, this issue has some nuances that need to be carefully learned.

Each Bank has its own terms of providing a mortgage loan, but most of them have a common position - to full repayment debt precisely financial organization regulates everything legal operations with real estate. Therefore, you can only give such an apartment with the consent of the bank.

At the same time, the law does not limit the possibility of transferring property in free use, and even extracting benefits from it (for example, by transferred to rent). But it is possible to give the legal force of the domestic on the apartment in the mortgage with the consent of the bank.

Changing the borrower is an excess risk that is not needed. financial organization, so they relate negatively to any change in the terms of the loan agreement.

Children

Make a contract of donation against a minor child It is impossible. It is explained by the fact that this category Citizens are not capable (it is not legal responsibility for their actions) and disabled. Therefore, it cannot be considered by the Bank as a borrower.

If desired to convey mortgage apartment Child should take into account his testamental right to him. Inheritance transmission is the only option of disposal of collateral real estate. According to the law, minor children will have the rights to this apartment even in the absence of a will.

Thus, the compilation of a gift for a child is not appropriate.

Spouses

The donation of the mortgage husband or wife is also not envisaged, because their property is initially common. Drafting is possible in the following cases:

• if the apartment is purchased to the mortgage before marriage;
• if the spouses divorced and one of them wants to cancel the status of the coacher.

In such a situation, the consent of the bank on the procedure is necessary. As in standard situations, the solvency of the potential borrower will be accounted for, and its credit history is investigated.

If the financial organization comes a positive decision on this issue, the procedure for the gift of spouses with each other will be legal.

Relatives

In this case, the consent of the bank is also necessary, which will evaluate the candidacy of the talent. If the financial organization considers that the borrower's change does not increase its risks, drawing up a gift for an apartment in the mortgage is allowed.

The coincider has equal rights with the main borrower of mortgage real estate. Accordingly, he cannot be given something that he owns. The situation is changing when it comes to the desire to stop being a coacher and fully transfer not only the right to real estate, but also obligations on loan payments.

In such a case, the Bank should also assess how changing the terms of the contract at the level will affect financial risk. If it is determined that the income of the co-serviceer is sufficient for debt payment, then the preparation of domestic on housing is possible.

Bank's consent

The consent of the creditor is determining on the question whether it is possible to give an apartment in pledge. If the bank agrees to replace the borrower, there will be no problems with the preparation of gift. Therefore, its receipt is the determining factor in the possibility of transmission mortgage real estate as a gift.

How to get a

In order not to have problems with the preparation of domestic, it is worth taking care of reducing the risk of obstacles from the bank. For this, it is necessary at the stage of drawing up a loan agreement to include the text about the possibility of committing legal actions with collateral real estate, including transferring it to the gift.

Financial organizations are extremely reluctant to have a similar step, so it is necessary to be ready for a negative reaction to a similar requirement.

But even if this item managed to include in the loan agreement, this does not cancel the need to obtain the Bank's consent to the transaction. And it will be given only if the solvency of the new borrower does not cause doubt. This takes into account not only its income, but also the number of dependents, as well as the volume financial meanswhich will remain from him after making a monthly payment.

List of documents

To compile a gift you need to collect the following documents:

• personal passports of the participants of the transaction;
• a petition for the registration of the contract;
• proponential documents for the Agreement;
• real Estate Types;
• consent from the second spouse, certified notarized (if the living space was purchased after marriage registration);
• extract from the hopping book;
• consent from the guardianship and guardianship bodies (if one of the participants of the transaction is a minor or incapable citizen);
• bank's consent.

The procedure for issuing a contract of donation of the mortgage apartment

Upon receipt of consent from the bank to replace the borrower, the latter must be prepared for a thorough check of its financial condition.

The order of registration of domestic:

• submitting an application to the bank;
• obtaining consent from the financial organization and verification of the solvency of the potential borrower;
• registration of the contract of donation (is drawn up in a simple written form, it means there is no need to appeal to a specialist, but notarization of the transaction will reduce the risk of challenging the document);
• registration of the transaction and transition of ownership of Rosreestre;
• property transmission is beloved.

Sample Darment Treaty

Despite the fact that the gift is drawn up in a simple writing, it should be extremely carefully considered to draw up the text of the document. You must specify:

• information about the parties (donorite, and also details of the banking organization);
• indication of the receipt of consent from the lender;
• description I. technical specifications real estate;
• conditions for the transfer of housing (irretrievably and free);
• the rights and obligations of the participants of the Agreement;
• information on the transition of property rights with the informing of being gifted that the lectured residents are pledged by the Bank;
• date and signature of the parties.

Is it possible to give without the consent of the bank

Conducting a degree of donation without the consent of the lender is illegal. Therefore, the likelihood of bank response should be taken into account. Financial organization can:

• go to court with a claim for the recognition of the gift invalid (the probability of the proceedings in favor of the creditor is high);
• establish the requirement of O. early repayment debt;
• sell real estate, regardless of who is its owner (in case of non-fulfillment of the claim early return debt).

None of the options implies a prosperous outcome for a borrower and it is important to take into account, when deciding to go on such a trick.

What to do if the bank does not give permission, but you need to give

If the compilation of the gift is necessary, and the bank does not agree to a similar step, the only way out remains - to remove the encumbrance. After that, the right of owner will not be limited.

You can do this in two ways:

• pay the remaining debt;
• refinancing (this is a rather popular way to solve a problem that has been offered by many creditors).

For example, if the apartment in a pledge in Sberbank can be refinancing in another financial organization. But here it is necessary to take into account that for the approval of the refinancing application, it is necessary to complete the absence of debt payment. Therefore, it is necessary to take care of the conscientious performance of their obligations in advance.

Important nuances of the Darment of Mortgage Apartments

If the apartment is in the mortgage, the answer to the question is whether it is possible to make a gift ambiguous. Here a lot depends on the position of the bank. Even if he managed to receive consent from him, it should be considered main feature Called real estate - the presence of the lender is right to it. Therefore, the gifted should understand that he takes not only property as a gift, but also obligations on it. It should also be borne in mind that the Bank at any time can make an alienation of the housing and sell it through auction if the terms of the loan agreement are not performed by the borrower or belonging.

Note! The probability of accepting a positive decision on the application of the borrower's change is minimal if the balance of debt is more than a third of the total volume.

In accordance with the laws of the Russian Federation, the apartment is the property of a person who bought it, regardless of whose funds a purchase, personal or borrowed was made. But if we are talking about mortgage real estate, it is in the bank pledge the entire period of debt payment. Therefore, all legal operations with it are possible solely with the consent of the Bank (except for the transfer of living space by inheritance).

About whether you can make an apartment in the mortgage read further.

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One of the most real ways to acquire one's own housing is to become a bank client and take an apartment in a mortgage. During loan payment, life circumstances may change. One of the probable situations is the need to donate an apartment in the mortgage.

The procedure for registration of the gift is regulated by Article 32 Civil Code The Russian Federation and implies the seeds of the apartment to another owner without the possibility of returning. When the share of the apartment, burdened by mortgage, the consent of other owners is not required. It is possible to make a similar step, the Bank determines - the real owner of the housing before paying the entire amount.

If the apartment is in the mortgage, then the easiest way to make a deal - repay the loan before donation. If the balance of the debt is small, you can take an unsecured loan in the same bank. The banking institution will transfer money from one credit account to another and will change the status of housing in Rosreestre to the "Complete Loan". What is the lack of this option? Unsecured loan implies larger percentagecompared to mortgage, and smaller maturity.

Legal basis for the gift of the apartment in Mortgage

If the debt is big and to take a loan for its repayment is impossible, you can give an apartment and without repayment of a loan. The legal foundations of such a transaction regulates the Federal Law "On Mortgage". The rights and obligations of the parties are indicated in FZ No. 122, and methods ensuring the fulfillment of mortgage obligations, in Article 329 of the Civil Code.

In violation of one of the parties to the agreed agreements, Article 334 of the Civil Code regulates the possibility of returning real estate. Of great importance also has mortgage agreement: If its content does not contradict federal legislation, then its provisions are priority.

In accordance with Article 37 of the Federal Law "On Mortgage", the borrower has the right to give a mortgage apartment that is pledged by the lender. At the same time, the mortgagee - the bank - should give its consent to this. The weighty argument to get it is the poor health of the borrower and / or the lack of financial resources. Your task is to convince the creditor that its risks do not increase at least, and even better - decrease.

If you are considering the issue of the apartment's donation back at the mortgage design stage, try to include in the loan agreement the point that the Bank does not need to be consent. If there is no such item in the document, it must be coordinated with the lender. To do this, you need to get the Bank's written consent to the amount of collateral.

The Bank has the right to prohibit the transaction of donation. This is due to the fact that, in addition to the right of ownership, under the contract we are crossing the loan obligations, therefore, to give housing to a minor, an older or low-income person is unlikely to succeed.

The conditions that the beloved face must fit

If the bank has prior consent to the shift of the owner of the mortgage apartment, the client applies to the permission of donation. After that, bank employees take the following steps:

• analyze the solvency of the new owner by calculating the amount that will remain after the payment of a monthly contribution;
• check the stability of earnings;
• find out the number of dependents on the content of the potential payer.

Also, bank employees need to make sure that the future owner of the apartment really wishes to take the burden of mortgage loan.

The list of conditions that the person must match the benefit of the Dear Treaty

• be a citizen Russian Federation;
• have permanent registration at the location of the banking institution;
• have an experience in the last place of work for at least six months;
• receive salary sufficient to pay monthly contributions.

Is it possible to make a gift bypassing the bank?

Arrange an apartment as a gift in this case without the permission of a banking institution. legitimate way will not work. All housing burdens is reflected in Rosreestre, so the registrar will not be able to deal without providing the consent of the banking institution.

An attempt to issue a gift without permission to be a fraud from the point of view of the law. Bank employees In this case, they take response steps that may be as follows:

• submitting an application to the court, which with a probability of almost 100% recognizes the transaction illegal;
• requirement for early repayment of the loan and payment of the fine.

If the Bank's requirements are not fulfilled, the latter has the right to sell an apartment. Submitting a response to the banking institution will definitely not change the situation for the better, since the transaction was carried out fraudulently.

Required documents

In addition to applications in a bank institution with a request to resolve the procedure for donationYou must provide the following package of documents:

• persons for which the gift is issued;
• documents on ownership of real estate;
• the draft domestic, compiled as detailed as possible to avoid further misunderstandings.

After approval by bank institutions begin registration of the contract of donationFor which you need the following package of documents:

• positive creditor bank response;
• civilian passports of the donor and being gifted;
• pipeport for an apartment;
• document certifying the ownership of real estate;
• extracts from the register of property rights and the house book;
• the consent of the spouse or wife of the owner, if the Mortgage Agreement was married;
• positive response of the guardianship council if minors are prescribed in the apartment.

If the apartment is owned by several persons, then they all should participate in the signing of the gift. In the contract indicate:

• details of the parties to the transaction;
• reference to documents confirming the ownership of an apartment;
• technical certificate at housing;
• note for the transfer of real estate without payment;
• list of rights and duties of the donor and being gifted;
• the consent of the appropriate to take over all the obligations to repay the remaining amount;
• signatures of the parties.

If the donor has debts to the bank on the payment of a mortgage loan, then this item and the consent of the person who hosts an apartment to the gift is to pay off these debts and penalties to the Darment Treaty. Dear agreement is registered in Rosreestre during the year, otherwise it loses its strength.

Cost of the transaction

The contract of donation is taxed. According to Article 220. Tax Code The Russian Federation, if the donor and gifted not close relatives, the amount of tax is 13% of the price of housing. Who pays tax, the parties indicate in the contract.

If the owner supplies an apartment worth 10 million rubles with his civilian wife, she will have to pay a tax of 1.3 million rubles. Such. high rate Taxation has been introduced to eliminate the preliminary transactions - care from paying taxes when buying.

If the parties of the transaction are close relatives, the tax is not accrued. Parents, children, spouses, adoptive parents and adopted, grandparents and grandparents, full and exclusive brothers and sisters are considered close relatives.

The cost of the State Registration of the Dranagement Treaty in Russia is standard for all - 2,500 rubles. The feed of this is paid notary services.

Dates of the transaction

The application to the bank must be considered within 5 days after the filing. After receipt of the consent, preparations for the transaction and the procedure itself begins.

Registration in Rosreestra takes up to 5 business days. To conclude an apartment to the apartment in a turnkey mortgage will take up to 1 month.

Mortgage assumes a long relationship between the financial company and the borrower. Accordingly, for a long time, anything can happen - for example, the client will need to sell the home, change it or even give. Because of this, many have a question, and whether it is possible to give housing that is officially registered and is in a mortgage loan.

How to find out about the possibility of donation?

Since banks not too willingly go to the gift procedure, then permission to give a gift you need to ask exactly from the financial company.

Learning the contract

To further be able to give mortgage housing, it is necessary even during the registration of the loan agreement to be asked to include an item that allows the client to accomplish the mortgage dwelling in favor of the 3rd persons, but again only with the permission of a financial company.

If this item is included a contract, the financial company at least consider the option of donation, and can no longer be able to dismiss your application.

If only the financial company is permitted, you can make a gift agreement, which is issued in writing. To certify, visit the notary is not necessary.

But there is an important rule With regard to this document, it must be issued correctly and registered in the state market.

The transaction for donation has no age limit - to give accommodation to an adestrate and a minor face.

What does the law say?

The legislation directly indicates that if property is a mortgage, the borrower can no longer use the property.

How about the financial company client? Procedures relating to the sale or gift of property are carried out only with the permission of a financial company. Including here is domestic. And this means that while the Bank's customer does not pay off the company, it will not be able to use the property to fully. Accordingly, to sell housing The Bank's client will be able only if the Bank is permission.

By the way, the bank client can allow someone else to use the property. Mortgage can only pay the borrower.

How to make a gift to the apartment in the mortgage?

We will analyze exactly how the donation procedure is happening and that it will be necessary.

What will required?

If the bank still went to the meeting of the borrower and allowed to give a dwelling, the new owner should be prepared that he will undergo a serious verification for solvency on the part of the financial company.

Check out new borrowerit will be about the same as the previous one. That is, they ask him:

• income of the future owner;
• how much money will remain at the borrower after making mandatory payments;
• the number of dependents and other articles of consumption by the owner.

Also, the financial company should make sure that the new borrower wants not only accommodation as a gift, but also debt obligations.

Obtaining the consent of the bank

If the financial company agreed to the gift procedure, not only the contract will be inspected, but also the personality of the beloved person.

If the dwelling is presented, then the mortgage loan will not stop, so the gifted will pass the same inspection on the ability to pay a loan as the borrower once passed this procedure.

Under the attention of the bank, there will be cumulative income from all sources of the future owner, the profitability of his family members, the number of dependents, as well as the size of the monthly costs and stability of earnings.

By the way, believed must clearly understand that he becomes a borrower on a new mortgage loan. Therefore, the Bank very often permits a degree of donation against a minor.

Required documents

In order to pass the gift procedure, you need to collect the following packet of papers:

• Paper that certify the identity of both the donor is both donor.
• Paper owner housing.
• Cadastral or technical passport.

All these papers will be needed for registration of the contract of donation.

Domestic on a mortgage apartment

Such a document, as a gift agreement, should be in writing, and even without the remittress of the notary. It is necessary that such an important document makes it legally correctly and registered in the state market.

The transaction is valid in relation to different age categories - so, for example, you can even give housing even a minor. If the child has not yet been 14 years old, then parents or guardians may sign on his behalf. If the child has already managed to reach 14 years, he can sign a contract independently.

Step-by-step action

Step-by-step instruction as follows:

1. First you need to achieve bank approval on the procedure.
2. If the bank agrees to the procedure, the contract of donation can be issued.
3. At the last stage, it remains only to register housing in Rosreestre.

Possible problems and nuances

The main problem is that financial companies Approve such transactions not all. Since the payer is replaced by a mortgage loan, the bank bears big risks. Nobody guarantees the bank that the new borrower will also well fulfill its credit obligations as the previous payer.

That is why the bank requires the same package of documents from the new borrower as from the previous one. Including it will be necessary to confirm its financial consistency.

For the same reasons, the Bank rarely approves transactions against minor citizens. The bank cannot be sure that the child will be able to pay monthly payments.

As mentioned earlier, the bank rarely approves such transactions. And so that the client of the financial organization was at least some chance to give an apartment, you need to specify this moment in advance in the contract.

What will happen if you give an apartment without a bank's knowledge?

Is it possible to give a dwelling without a financial company's knowledge? Perhaps the borrower will somehow be able to test such a deal, but after this, the actions of the financial company will immediately follow.

• Lawsuit in court. Bank with help court proceedings And the claim in court has the right to challenge the gift. And the financial company in this case will be right.

• Also, the bank may request the loan obligations to be made in early mode. The bank in his right to demand from the borrower so that the remaining debt is paid immediately. Also, the bank may require the dwelling to sell, regardless of who exactly is its right holder.

So, as you already, probably, understood, to give accommodation in the mortgage, is very difficult. This can be done only in the following cases:

• If the debt is repaid early.
• If the bank allowed the transaction.

In addition to obtaining the appropriate consent of the Bank, the procedure of donation in the mortgage is quite complex.

After all, the borrower in most cases cannot immediately repay the debt, and financial companies do not want to go to such transactions.

Pros and Cons of the Darment of Mortgage Apartments

The main advantages of the design of such a donation procedure are as follows:

• The main advantage is that the procedure of donation is very simple. At the same time, the borrower can make a notarious agreement, and make it independently.
• Also, it will not be much difficult to find a document blank and a sample of its fill.

Unfortunately, there are also its drawbacks - in particular, banks with great reluctance go to such transactions, and if they agree on them, then the person receiving housing under the contract of donation is checked for solvency as thoroughly as the previous borrower.

About what is possible, and what can not be done with mortgage housing, you can learn from the video.

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Maternity Capital: Several options for buying an apartment in a mortgage.

Buying an apartment with the attraction of a mortgage loan implies not only long-term relationships with the bank, but also certain burdens on the housing itself. But for the same 20 years, much can change, for example, children will grow up and they will need separate housing or the mother-in-law wishes to move, and therefore the issue of ordering disposal and will arise. In particular, is it possible to give an apartment in a mortgage, my beloved mother?

What is a mortgage apartment

In accordance with Article 209 of the Civil Code of the Russian Federation, a citizen's full owner of an apartment becomes from the moment of signing the contract of sale and passes state registration In Rosreestre, which is expressed in the event of the right to own, use and dispose of households at its discretion. However, the acquisition of housing using a mortgage loan is meant the initial transfer of the apartment in a pledge to the bank until the loan repayment is fully repayment, as well as to ensure the debt to the debt to the household in the event of the impossibility of fully repaying the obligations assumed.

At the same time, by virtue of Article 339.1 of the Civil Code of the Russian Federation, the fact of pledge itself is also subject to state registration, as well as the right to transition to the borrower as a result of the purchase of a residential premises. Therefore, when visiting the State Chamber, the new owner of the apartment should not only submit an agreement on the acquisition of ONO, but also the credit agreement itself, which actually leads to the automatic imposition of encumbrance on residential premises.

However, despite all of the above registration rules, both the contract for the sale of apartments and mortgages, most an important aspect It is the loan agreement that may include a number of fateful conditions. In particular, the same possibility of transferring an apartment in a donated other person, but only in the order of a certain law, and taking into account the norms enshrined by the agreement itself.

By the way, the Bank himself is not interested in to inform the borrower of all procedures that can be made with a mortgage apartment in mind financial risks, as well as a sufficiently cumbersome documentary procedure. That is why if the owner in the future does not exclude the likelihood of transferring a mortgage apartment in the grades of the same close relatives, the conditions for the gift of housing should be initially reflected in loan agreement.

What is the presentation of real estate

According to the norms of Article.572 of the Civil Code of the Russian Federation, the basis of the transfer of an apartment to another person under the contract of donation is to free. sphere.

Another feature of the gift is the transfer of real estate as a gift in the life of the donor, and not after his death. Given that all the property after leaving the world of other his owner is already in the section of hereditary issues that are regulated by very other laws and principles.

At the same time, the apartment purchased to the mortgage theoretically belongs to its owner, so he can give it to other persons, but in fact, the housing is pledged, so to transfer it to the same son without permission credit organization The owner cannot, in connection with which, even on the implementation of its legal rights, the permission of the bank, which is always valid only as part of the previously concluded loan agreement, and is required.

Is it possible to make a gift for a mortgage apartment

Of course, the law is allowed to give a mortgage apartment to the law, but only if the specified condition is initially written in a loan agreement within the framework of the norms stipulated by Article 37 of the Federal Law No. 102 and the Bank does not object to the change of the borrower. But here financial institutionUnfortunately, to prescribe the specified condition is not in a hurry in mind large risks lose financial benefits.

In particular, even ten years after the conclusion of the mortgage agreement, the loan amount will be repaid no more than half and chances that the new owner of the apartment in the gift will turn out to be so solvent on a long-term basis no one will give. Also quite problematic will be and transferred to the gift of the apartment, even in order to provide the housing of his own child.

Indeed, if the same legitimate representative of the baby can not pay off mortgage And the bank will be forced to pick up the mortgage living area at the expense of debt repayment, to realize the departure share will be practically unreal in connection with which the financial losses for the bank are inevitable, not to mention the problems with guardianship and guardianship authorities.

It will also be problematic to be issued a gift and home in the mortgage, given that the specified type of housing itself carries a number of additional risks. In particular, the following aspects will be taken into account when considering the approval of the gift.

• location settlement in which there is a house;
• stability, that is, the same employment opportunity and development social sphere In the village or the village.
• the solvency of the new client.

That is, if the same lonely woman wants to give his mortgage house in the village The only nephew-a student, the consent of the bank is unlikely to expect, given that a high level of income or the possibility of professional development in the village of a young man will not be able to guarantee, and therefore And to qualify for permission from the bank to design a gift to the house with an outstanding history too.

Apartment Darment Agreement in Mortgage

Within the framework of Article 37 of the Federal Law No. 102, it is possible to issue a contract for the apartment for an apartment with a mortgage, but only in the presence of the consent of the credit institution, which on the eve of the permission will analyze the following aspects:

• the solvency of the future client;
• the percentage of the remaining payments;
• conditions of the loan agreement.

That is, if the mortgage agreement contains a condition for the possibility of a donation of the apartment and until the final repayment of the loan remains a slight time, moreover, a gifted can confirm its stable financial situation, a positive answer will probably be obtained.

By the way, the nearby relationship between the participants of the Darment Agreement will also be taken into account, especially if the borrower in view of objective reasons has lost its former financial stability due to illness or loss of work, and his wife or daughter is ready to take over his obligations.