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Legal consultation

Barbarian Diordieva - the lawyer, an analyst.
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Notes

How to avoid a deceit at apartment purchase

At each of us once was (or is) the treasured dream – to get the, let even not elite, apartment. Someone has embodied in a reality this dream earlier, someone later. At someone this dream was carried out without claims for originality, at someone the apartment has appeared in the modern house with an underground parking and other integral attributes of the present, and at someone the dream was realised to the full, and now he lives in a smart private residence in a cosy corner of a huge megacity. However the most part of owners of the inhabited real estate is united by the general past – they were once buyers of apartment (house).

About the basic actions which the buyer that process of acquisition of long-awaited apartment or the house has left as more as possible positive impression, and the main thing should undertake – that the apartment and residing in it have not saddened the further life, and speech in given article will go.

Process of acquisition of habitation in the secondary market can be divided into three stages: preparatory, the conclusion of the transaction and registration of the property right to apartment or the house is direct.

 

Stage the first – preparatory.

 

Having saved up the certain sum and having looked after the inhabited real estate approaching on all parametres, we recommend not to regret money and to address to the skilled lawyer or the qualified realtor who give legal support at habitation purchase.

However if you dare to operate independently, first of all, we recommend to make sure, that the person who names itself the seller, is the proprietor of apartment, after all to dispose of property (for example to alienate under the purchase and sale contract) the proprietor of real estate or the person authorised by the proprietor of the real estate on alienation of apartment has the right only. Thus, first of all, it is necessary to familiarise with documents which confirm the property right of the seller to apartment (apartment house). According to the current legislation of Ukraine, the apartment (apartment house) can belong to the seller on the basis of following documents.

1. The purchase and sale contract (мены, donations, the lifelong maintenance).

2. The certificate on the property right, given out by privatisation body.

3. The certificate on the property right, given out by local government and local state administration.

4. The decision of court, the arbitration court on a recognition of the property right to object of real estate.

5. The certificate on the right to the inheritance which has been given out by the state notary.

Besides, the property right of the seller to apartment (apartment house) should be registered in the Bureau of technical inventory (further – БТИ) on the real estate location. The eloquent proof of such registration is the registration inscription (stamp БТИ) on an underside правоустанавливающего the document (or the registration certificate if on an underside of the document there is not enough place for putting down of stamp БТИ).

Integral part правоустанавливающего the document of the seller on apartment (apartment house) is the inquiry-characteristic, to acquaintance with which also is recommended to pay special attention. Period of validity of this document – three months from the date of delivery. Besides, the inquiry-characteristic gives the chance to find out such important points:

– For whom on the basis of what the property right to the given object of the real estate is registered in registration book БТИ, the address of alienated object of the real estate;

– In what shares the real estate belongs to the seller if the apartment (apartment house) belongs to several сособственникам on the right of the general share property;

– Metric area of the general and inhabited areas of alienated object of the real estate;

– Balance or inventory cost of alienated object of the real estate;

– Quantity of rooms.

At a preparatory stage it is necessary to familiarise also with data of characteristics sheet of apartment (apartment house) and to pay special attention on coincidence of data about house/apartment number, figures of the general and inhabited metric areas. The data specified in правоустанавливающем the document and the inquiry-characteristic, should coincide with the data specified in characteristics sheet. In the presence of re-planning in apartment which you plan to get, it is necessary to request from the seller the permission of executive committee of regional council to realisation of such re-planning.

In addition at this stage it is necessary to check up presence (or absence) the rights of the third parties to alienated apartment (apartment house), and also obremeneny/burdenings concerning this object of the real estate. To carry out it in practice it is possible, having checked up the following:

– Consent presence сособственников (if those are available), and also the consent of the spouse/and / to alienation of apartment (apartment house). If сособственниками alienated apartment (house) minor children are, we recommend to check up presence at the seller the permission of tutorial council to sale of apartment (house). However if the seller has a consent of both parents issued notarially to signing of the contract by the minor, or two of them sign it for the juvenile child presence of the permission of tutorial council is not obligatory. However it is necessary to pay attention that it contradicts the Law of Ukraine «About child care». Thus, there is a collision of laws. Therefore for today notaries do not have unequivocal opinion concerning compulsion of presence of the permission of tutorial council on apartment alienation, сособствениками which minors are;

– Presence (absence) of arrest/interdiction of alienation of real estate. For today this procedure is carried out by notaries at the certificate of the transaction of purchase and sale (provided that the notary is connected to the register of interdictions of alienation);

– Presence/absence of debts on payment of utilities, and also services of the serving (supplying) organisations (vodo - gazo - electrosupply, telecommunication and teleservice services). Absence of debts under the rent and utilities proves to be true the inquiry from ЖЭКа or co-operative society. It is obviously necessary also to recommend to make sure of presence/absence of the contract with housing-operational office on service.

– Having received from the seller the inquiry from ЖЭКа that in apartment nobody is registered, the potential buyer will arm with documentary acknowledgement of this fact. Besides, as practice shows, for today in the purchase and sale contract even more often began to include the reservation that at the moment of signing of the contract of purchase and sale in the given apartment nobody is registered. It will help to avoid any complexities at the buyer further in the sense that he should not solve a problem of eviction sat up on an old place of the seller and its relatives;

– Engineering specifications presence/absence on the equipment which is available in apartment (electric counters, water supply and gas counters, etc.), and also the contract and pay books of the supplying organisations (power supply, a water canal, telecommunication, etc.);

– If a subject of the contract of purchase and sale is the private house it is necessary to check up presence/absence of debts of the seller on payment of the ground tax and, first of all, presence/absence of the basis for payment of such tax. The basis for payment of the tax to the earth is the State certificate on the property right to the earth or the rent contract. Besides, getting the private house, simultaneously with the conclusion of the contract of purchase and sale of the house it is necessary to conclude the bargain of purchase and sale of the ground area (or to conclude the contract of rent of the ground area).

Provided that правоустанавливающие and other accompanying documents on apartment at the seller correspond to current legislation requirements, and, having carried out, at least, unitary survey of apartment, it is possible to pass to a following stage – to the conclusion of the transaction of purchase and sale.

 

Stage of the second – the conclusion of the transaction of purchase and sale of apartment (apartment house).

 

According to norms of the current legislation the transaction of purchase and sale of apartment (inhabited) house is carried out by signing by the parties of the contract of purchase and sale. The notarial certificate and the state registration of such transaction is obligatory.

For the conclusion of the transaction of purchase and sale, except the documents issued according to the current legislation confirming the property right of the seller, the party should show following documents.

 

It is necessary for seller to give following documents

1. The passport, identification number.

2. The power of attorney on the representative (if on behalf of the proprietor the person authorised by it operates), notarially certified, its identification number.

3. Правоустанавливающий the document, the inquiry-characteristic, characteristics sheet on alienated object of the real estate.

4. The written notarially certified consent of the spouse () on alienation of object of the real estate.

5. The permission of tutorial council to apartment alienation if сособственниками minor children are.

6. The inquiry from ЖЭКа Ф-3 that in apartment nobody is registered.

7. The inquiry from ЖЭКа about absence of debts on payment of utilities, and also inquiries of the supplying organisations (elektro - gazo - water supply; telecommunication and teleservice services) about absence/presence of debts on fee of these organisations.

 

It is necessary for buyer to show following documents

1. The passport, identification number.

2. Notarially certified power of attorney on the representative (if on behalf of the buyer the person authorised by it operates), its identification number.

3. The written notarially certified consent of the spouse () the buyer on acquisition of object of the real estate.

4. The payment document confirming payment of gathering in the Pension fund at a rate of 1 % from the sum of the contract.

At the conclusion of the transaction of purchase and sale of apartment (house) practising lawyers recommend transfer of apartment (apartment house) to make out by signing of the Certificate of reception-transfer. The reception-transfer certificate is an integral part of the contract of purchase and sale as the appendix to it. We Pay attention of potential buyers that the given Certificate confirms the fact of transfer with the seller and the fact of acceptance by the buyer of apartment (apartment house), instead of transition of the property right to it. According to the current legislation the property right to apartment arises at the buyer from the moment of the state registration of such right in БТИ (earlier this right arose from the moment of signing of the contract and its notarial certificate).