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The number of cases of assignment of the rights of the requirements has recently growing, month from the month of Rosreestr fixes this increase. At the same time, certain risks are usually associated with this kind of transactions. There are frequent cases when a contracting organization, which received an apartment as payment from the developer, does not fulfill its obligations to the construction company, as a result, the concession contract is terminated, after which the apartment returns upon a court. How to progress from such situations, specialists told.

Before who is going to buy an apartment in a new building, three ways are open today. First, sign the contract of equity participation in construction directly with the developer. Secondly, it is possible to become the owner of an apartment in a new house, concluding a concession agreement of the right to claim an individual who bought this apartment from the developer to invest. The third option is when the contract of concession of the right claim lies with a contracting organization that performs construction and installation work at the facility.

The most common today are situations where the seller is the contractor.

The feature of the assignment of the right of claim under the contract of equity participation in construction is that as a result of such a transaction, the effect of the first contract of shares does not stop, the buyer only changes in it (instead of the initial investor, they are becoming a new person). The rights and obligations of the initial investor are moving to the buyer, with all the conditions of the first contract (the deadlines for the work, the price of the apartment and the warranty period) remain the same. The assignment is possible after the state registration of the contract of shared participation and before the act of acceptance and transfer to this apartment has been signed. Just as the contract of equity participation, the assignment of rights is subject to state registration.

To coordinate the concession from the developer does not need (exception - cases when the contract of equity participation contains the item that the assignment is impossible without the consent of the developer). But after the contract of assignment is registered, the buyer must put the developer knowing that it was transferred to the right to the object. For this, the notification is written in a simple written form to the construction company. This document must contain data on the first participant in shared construction and the new investor. It is advisable to make a copy of the concession contract to the notification.

Two types of concessions

According to Law No. 214-FZ "On participation in the share construction of apartment buildings", assignment is possible in two cases: after full payment of the value of the contract or with the simultaneous debt transfer to the new participant in equity construction.

1. If the payment under the contract is fully manufactured, the full payment will be required to register.

2. If the first participant in the construction of payment is not fully made, simultaneously with the concession takes place for the buyer of the debt balance. The transfer of debt to another person is possible only subject to the consent of the lender. In this case, the state registration will require the written consent of the developer for a concession. If there is no consent in the list of documents submitted, this is the basis for the suspension of state registration of the assignment agreement.

Document package for transaction

All documents necessary for transferring rights are divided into those required to register a transaction in Rosreestre, and those that the buyer needs to be collected in order to protect their rights in the future.

Documents required for Rosreestra (all documents are provided in two copies: script and copies):

1) a document confirming the payment under the contract or documents confirming the simultaneous translation of the debt to the new acquirer;

2) the written consent of the developer for the assignment of the right of claim under the contract (if it is provided for by the contract of equity participation, and also if the concession occurs with the simultaneous translation of the buyer's debt);

3) notarized the consent of the spouse;

4) if the right of claim is pledged, the written consent of the pledgee;

5) Agreement, on the basis of which a secured mortgage occurred (for registration of the contract, the concessions in the Rosreestr appeal two sides of the contract);

6) The consent of the guardianship and guardianship bodies for the assignment of the rights of the claim under the contract, if a participant in shared construction is a minor (incapable).

Documents required by the buyer

When buying an apartment, a buyer's contractor should be interested in two main points: is the contracting organization really has the right to dispose of this object and whether payment was made under the contract.

As a rule, a contract is concluded between the contractor and the developer, followed by a phased outage of the cost of work performed on the payment of the purchased objects. As these works are fulfilled on these two contracts: the contract of equity and contract is made - it is credited.

Two cases are possible here. The first - when the apartment is reissued to the contractor (a concession agreement has been concluded by the right of a claim or a part of participation in equity registered in Rosreestre).

"In this situation, everything is enough," explains the lawyer of the law bruiting department "Soyuz" Yulia Mikhailov. - According to an extract from a single state register of rights to immovable property (USRP), it is checked if the right holder is the seller, whether there are limitations or encumbrances of the right of claim.

It is worthwhile to ask the developer whether payment was made, as a rule, a contractor should have a registered contract and payment certificate. If there are previous copyright holders, there must be documents confirming their payment by previous copyright holders, and so until the disposal of the developer. If the payment was made by testing mutual requirements, it is necessary to require a copy of such contracts. This will protect the buyers from the right appointment of previous sellers. Special attention should be paid to the conditions required for the contracts of this species. Without them, the contract will be considered not shut-off. Since the right of demand follows from the Treaty of Participation in Share Construction, all details of the specified Agreement (number and the date of conclusion, as well as other information that can be established by the amount of applicable requirements) must be specified in the concession contract. "

The second case, when the contractors do not have legal right to require the object of equity construction, the apartment is listed for the developer or for a third party.

"In this case, the Buyer needs to consider in particular attention to the moment of transmission money- Julia Mikhailov believes. - If the apartment is listed for the developer, it is necessary to require the payment confirmation not only a certificate, but also another document (profit-cash order and check). If the apartment is listed for an individual, respectively, it is this person who must issue a receipt in receipt of funds. I would like to pay particular attention to buyers to the fact that when making a deal, it is necessary to study the documentation of the developer: development permit, project documentation and all changes made to its content. Papers that confirm that the developer has the right to own land plot. In difficult situations, it should be attracted to the work of a lawyer. "

In accordance with Article 17 of the Federal Law No. 214-ФЗ, the contract of concessions of the right of claim under the contract of shared construction is subject to mandatory registration in Rosreestre. The concession agreement is considered concluded only since the state registration.

Elena Hamardyuk, Head of the Supervision Department for the Share Construction Service of the Construction Supervision and Housing Control:

Purchasing objects from contracting organizations, citizens should understand what documents are needed for such a transaction so that in the event of court proceedings In the future, they could defend their rights in court. Not only requires a certificate from the developer about the works performed by the contracting organization at the builder facilities, but also all financial documents confirming the calculations between the developer and the legal entity to which the apartment was transferred (offset of mutual requirements, the forms of work performed), because a certificate of developer about the work performed by the contracting organization financial document is not. And in the event of a situation where the developer gave the premises, issued a contract of equity participation with a contracting organization, and that for some reason did not fulfill its obligations, the work was not completed, and the object has already renewed the physical face, protects the interests of the shareholder.

Ekaterina Shelavina, Deputy Head of the Registration Division of Participation in the Construction of the Rosreestratr Office for the Krasnoyarsk Territory:

Cases when the registration of the transaction on the assignment of the right of claim is suspended, recently has become noticeably more. And although similar situationsare usually allowed required documents The parties are drawn up and registration is carried out, all this month, as long as the concession is suspended, the buyer spends in a nervous expectation.

In practice, buyers often do not check the terms of the contract nor the presence of the consent of the developer for the assignment of the object, this leads to the suspension of registration. We make a request to the developer, and if the developer of consent to the concession did not give, and it is provided for the terms of the contract, it will be denied in the registration of the contract.

The buyer needs to be carefully familiar with the content of the first agreement of equity participation in construction, with the conditions under what conditions it was with the initial investor, make sure that there are no burdens on the apartment (mortgages). If the concessions were somewhat, make sure that the payment was made on everything.

In any case, it must be remembered that all rights to the object arise only from the moment of registration, until there is no entry in the registry, whatever the seller claims, it is only his words, he can really manage the object, only after an entry to the USRP appeared.