Buying an apartment by assignment of rights: procedure, risks

What is the assignment of rights to new housing?

Real estate in a high-rise building under construction can be purchased not only in the standard way through the conclusion of a DPA (share participation agreement), but also through the so-called. assignment - assignment of rights of claim (PPT). Since at the time of concluding such a transaction the apartment does not yet legally exist, we are talking about the transfer of ownership rights to an object that will appear in the future. Thus, the buyer accepts not only the rights of the shareholder, who acts as the seller, but also his obligations. This and much more gives rise to certain risks, however, assignment is often the best way to purchase housing.

How to buy an apartment from a contractor? Features and rules of the transaction

The specificity of the legal relationship between the buyer and the contractor is that if the transaction is concluded at the construction stage , the organization transfers to the future owner not the housing itself, but the rights to receive it. This determines some features when completing a transaction.

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Regardless of what contract is used to formalize the purchase of an apartment from a contractor, if the housing has not yet been completed, the assignment of rights under it is subject to mandatory

state registration

(

Art. 17

Federal Law No. 214).

According to paragraphs. 30 clause 1 art. 333.33 of the Tax Code of the Russian Federation, the state duty for state registration of the assignment of rights of claim under the DDU is 350 rubles.

Let's consider the most common options for processing transactions for the purchase of housing with contractors:

Assignment agreement. An agreement for the assignment of rights of claim (Article 388 of the Civil Code of the Russian Federation) in favor of the buyer will be valid if the main agreement (for example, DDU) does not prohibit such an assignment. It is drawn up in writing and must contain an indication of the deal initially concluded with the developer and the conditions determined under it. The assignment agreement can be signed only before the house is put into operation - after that, the housing can be sold only by purchase and sale.
Agreement on assignment of rights. During large-scale construction, general contractors involve smaller organizations - subcontractors, with whom payments are also made by apartments, under an assignment agreement. They, in turn, assign the rights to real estate assigned to them to citizens for a fee. The risk of concluding such an agreement lies in a possible “chain” of such assignments, the fulfillment of obligations under which cannot be traced.
Co-investment agreement. According to Art. 4 Federal Law No. 39 of February 25, 1999, contractors, under an agreement concluded with the developer, can simultaneously act as investors, providing their services as investments, in return for which they receive rights to apartments. In this case, for their sale, co-investment agreements are concluded, under which the rights to housing are transferred to citizens to the extent that they belonged to the contractor-investor.
Contract of sale. The safest option is to purchase an apartment from a contractor. Concluding such a transaction is permissible only after the house has been put into operation and the contractor has registered ownership of the housing, which naturally significantly inflates its price.

List of documents

To sign a contract with a contractor for the purchase of an apartment in a new building, citizens will need to provide a minimum package of documents.

The main document required to complete the transaction is a passport.

If you are married, it is advisable to have a notarized

spouse's consent

(

clause 3 art. 35

Family Code of the Russian Federation) and marriage certificate.

No other documents are needed directly to conclude the contract. However, subsequent registration of the transfer of rights to the buyer, in addition to the documents already specified, will require the provision of:

Applications for state registration.
Receipts for payment of state fees.
Initially a contract concluded between the developer and the contractor.
Assignment agreement between the contractor and the buyer.
Certificates of fulfillment of all obligations of the contractor or agreement on transfer of debt to the buyer.
The developer’s written consent to the transfer of rights (if provided for in the original agreement) or notification of such a transfer.

A profitable investment is the purchase of real estate in a house under construction. The greatest savings are possible when purchasing at the initial stage of construction.

What's the point?

Contractor is a company that works under a contract, for example, engaged in glazing, landscaping, finishing, or construction and installation work. In other words, this is the executor of the customer’s instructions, who was hired for the construction period.

The contractor receives apartments in a house under construction or commissioned from the developer as payment for his services performed, that is, through barter. To do this, an agreement on shared participation in construction (DDU) is concluded between the parties, or apartments are simply reserved for the contractor (without drawing up an agreement).

Features of purchasing housing from a contracting company:

The contractor enters into an equity participation agreement (EPA) with the developer or agrees to book apartments in exchange for services provided.
The transfer of rights to individual buyers occurs as a result of the assignment of rights or the conclusion of a DDU agreement with the developer.
The transfer of rights under an agreement or the conclusion of a DDU agreement is subject to state registration.

Rights to apartments are acquired at the initial and final stages of construction, when mutual settlements take place between the contractor and the developer. The peculiarity of the assignment is that as a result of such a transaction, the validity of the DDU does not terminate. The party simply changes (instead of the contractor, the buyer becomes the buyer). The rights of the contracting organization are transferred to the new participant, but all the terms of the main agreement remain the same.

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An assignment agreement with an individual buyer is not much different from a regular transaction of assignment of rights from one investor to another, which occurs all the time in the market.

But there is one very important feature: if the construction is not completed, that is, if the contractor’s obligations are not fulfilled, then the rights to the apartments can be revoked at any time, since the DDU agreement can be terminated.

Important: the agreement with the contractor should not be confused with the DDU and the assignment agreement with the buyer (individual investor). If a realtor says that it is “practically the same” and the buyer will not have any risks, then you should not trust him to complete the transaction.

The benefits of buying a home from a contractor can be quite significant:

Apartments at the zero stage (if you chose them at this stage) are much cheaper than at the end of construction.
The contractor himself can give a discount if he urgently needs funds. By the way, he himself can also get future square meters at a completely different price than an ordinary buyer on the street. Prices may be lower for contractors.

If the contracting organization is completely financially stable, has been working in the market for many years and has no intention of leaving the market, then there is nothing wrong with buying housing from it. On the contrary, it can be a very successful deal.

But there are other situations. The contractor can sue the developer or be in a state of conflict and during this period “throw away” the apartments transferred to him to the buyers. Trusting investors may not be aware of the risks involved.

The result of such gullibility: the rights to the apartment are disputed by the developer. One day, buyers may receive a court decision that the DDU agreement is terminated due to the fact that the contractor violated its obligations and, accordingly, the assignment of rights to another person is invalidated. In this case, the buyer has the right to demand his money from the contractor. Judicially. How long this process will take depends on the solvency of the contracting company.

Let us add that this risk is an unnecessary addition to the existing ones, because the house may not be completed due to lack of funds, the developer may disappear with the money, or the construction may be mothballed for a long period of time.
Advantages: low price for apartments.
Disadvantages: high risk of losing rights to housing under construction.

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Attention! The main risk of purchasing housing from a contractor is that the organization may be declared bankrupt before the completion of construction and commissioning of the house.

This means that the company will not have time to fulfill its obligations to the customer, and, therefore, he may demand the return of the rights to the transferred square meters.

Nuances

Why is it sometimes beneficial to use assignment?

As a rule, a PPT transaction is relevant for the acquisition of real estate with characteristics that are optimal for the buyer. For example, a family wants to acquire a four-room apartment on a low floor, but the developer has already sold out of such lots because they have been purchased by shareholders or distributed in some other way. In this case, you can turn to an investor who, anticipating an increased demand for such real estate, has previously concluded a contractual agreement with the developer and “stakes out” several four-room apartments on the lower floors. As a result, the family gets what it needs, but, as a rule, at a price higher than the standard one.

Pros and cons of assignment of rights

From a legal point of view, everything is legal. Both by DDU and by assignment, you can ultimately obtain ownership of the apartment - there will be no differences. But still, both for the seller and for the buyer there are a number of nuances that must be taken into account when planning to formalize the assignment.

To the seller (assignor) on assignment

On the one hand, the advantages for the seller are obvious. Assignment is most often used for investment - they invested at the excavation stage, and sold the rights closer to the end of construction. There is no need to bear any risks regarding the quality of housing; it is enough to simply transfer to the buyer the rights, which have increased significantly in price over the years of waiting. For the seller, assignment is definitely a financially beneficial event. Unless, of course, the assignment is a forced measure and is not issued urgently due to difficult life circumstances.

In addition, if any difficulties arise with the construction, the assignment will allow you to be freed from obligations under the DDU.

On the other hand, the assignment of rights to an apartment will require more time than concluding a regular purchase and sale agreement. You will have to take the consent of the developer, who does not always agree to change the composition of shareholders, or generally demands to pay a commission for agreeing to the assignment.

Who acts as the seller of the apartment during assignment?

There are three main groups of home sellers through PPPs. The most numerous are the above-mentioned investors who purchase new (under construction) apartments for the purpose of their further resale. These can be either individuals manipulating dozens of apartments or large companies with hundreds of real estate properties in circulation. The second group of sellers under PPP consists of contractors providing services to the developer. The developer pays them in square meters, which are then sold through assignment. The third group includes ordinary people who bought an apartment for themselves, but for some reason were forced to transfer it.

When is it possible to assign the right to claim an apartment?

Most often, an assignment agreement is concluded for several reasons:

Investors who decide to make money. At the excavation stage, apartments under DDU cost minimal money. At each stage of construction, the developer increases prices according to plan.
Contractors with whom the developer paid with apartments that do not yet exist. In the future, they need to be sold, and this can be done under an assignment agreement.
Individuals who purchased square meters at a minimum cost and decided to sell them after the developer’s next price increase.
Shareholders who entered into a pre-term care agreement, but after some time realized that they needed other housing.

Example: A woman entered into a contractual agreement with a construction company. According to the agreement, after completion of construction and full payment of fees, she must receive a one-room apartment with an area of 40 sq.m. After some time, she had two children, and she realized that the family would be cramped in a one-room apartment. The construction has not yet been completed, but she decided to sell the right to claim the property after putting the property into operation to another person.

The initial price of the apartment was 3,000,000 rubles, at the time of sale – 5,000,000 rubles. The shareholder has paid the entire amount under the DDU in full. The profit after the assignment of the right of claim will be 2,000,000 rubles.

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Features of checking the DDU before registering the assignment

If during a normal real estate transaction the title documents are carefully studied, then during the assignment the DDU concluded between the seller and the developer is checked. The DDU must be entered into the Unified State Register of Real Estate, and it must have the stamp “state registration of the agreement has been carried out.” If there is no state registration for housing, you should not purchase it using PPT. The second most important point is the absence of a pledge of rights under the DDU: it is important to make sure that there really is none. If there is a pledge, two types of seals can be found on the agreement: “state registration of the pledge of rights under the DDU has been made” or “state registration of the mortgage has been made.” If there are any, it is better to refuse the deal.

You should also make sure that the seller has paid the developer the entire amount agreed upon in his DDU. Otherwise, the assignment of rights cannot be carried out or this will require the consent of the developer, since not only the rights of the seller are assigned, but also his debts. In addition, you should study the features of the construction of a high-rise building in order to assess the chances of its timely completion. An important point: the lease term of the developer of the land plot on which the new building is being built must be completed later than the scheduled date of its commissioning.

Legal registration of the assignment agreement

The assignment of rights of claim is formalized in much the same way as the purchase of ordinary housing. The agreement undergoes state registration in the Unified State Register of Real Estate, for which its parties submit applications to Rosreestr through the MFC. The PPT agreement itself is attached to them in three copies and the state duty is paid. The complete list of documents required for the transaction is as follows:

passport or other identification document;
receipt of payment of state duty;
DDU entered into the Unified State Register of Real Estate;
PPT agreement with all amendments;
consent of the spouse if housing is purchased as joint property;
consent of the guardianship authority to the PPT, if the participant in the DDU is a minor or incompetent person;
developer's consent to the PPT, if required.

The PPT agreement form is often provided by the developer, since he is interested in the legally correct execution of the transaction.

Instructions for drawing up a contract

Before signing an agreement, a person goes through the stages of preparing papers, collecting information and drawing up an agreement form. Let's look at the stages in detail.

Package of documents

To formalize the assignment you need to prepare (Article 48 of Federal Law No. 218):

DDU;
a power of attorney certified by a notary for consent from the second spouse, if the husband or wife did not appear at the signing of the agreement;
a paper confirming the absence of debts to the construction company (if there is no certificate, financial obligations are transferred to the buyer);
consent from the developer and banking organization.

Consent from the husband or wife is required when the DDU was concluded in an official marriage. Then the right to claim belongs to both spouses (Article 35 of the RF IC). When the second party to the transaction is also in an official union, then certified consent is similarly required.

When concluding an agreement to transfer the right of claim, one of the parties changes. Now the buyer becomes another person to whom the construction company undertakes to transfer the property. Therefore, the developer’s consent to conclude the transaction is additionally required. This will eliminate the possibility of the contract being declared illegal.

When the requirement to agree on the conclusion of an agreement on the transfer of the right of claim is not in the main agreement, then the agreement is not needed. You need to send a notice to the construction company.

The consent of the banking organization is required if the apartment is taken out on a mortgage or loan. Then, without permission from the legal entity, the transaction is illegal.

Conclusion of an agreement

The DDU is concluded in writing; the form indicates:

passport details of the parties;
date of signing;
participants' addresses;
place of signing;
serial number of the agreement;
property address;
cost of transfer of claims;
technical description of the object;
method of calculation (occurs after registration in Rosreestr);
Bank details;
list of papers that are transferred to the parties to the agreement (transfer deadlines, DDU, payment papers);
rights and obligations of the parties to the assignment;
paintings with decoding.

The assignment is drawn up in triplicate. One is transferred to the seller, the other to the buyer, the latter remains in Rosreestr.

If the buyer has received written consent from the construction company, then the citizen has the right to add the developer to the list of responsible persons. It is enough to specify the responsibilities of the legal entity in the text of the document. This gives the right to demand a penalty for failure to fulfill the agreement.

For example, a construction company delays the delivery of a residential complex.

Registration in Rosreestr

The agreement is registered in the Multifunctional Center (MFC) or in Rosreestr. Before visiting the institution, the following papers are prepared (Article 48 of Federal Law No. 218):

DDU;
agreement on assignment of rights;
passports of two participants;
certificate of payment of state duty;
certified permission of the spouse;
papers confirming the absence of debt obligations to the developer;
consent from the construction company and the bank.

Original papers are handed over. If missing, photocopies certified by a notary. The amount of state duty is 350 rubles. The buyer pays the fee in advance.

They hand over the documents, and in return the employee provides a receipt. The paper contains a list of accepted certificates and indicates the period during which changes are made to the equity participation agreement. The period rarely exceeds 10 days.

At the end, the employee returns the papers to the applicant and informs about the adjustments made.

The main dangers when buying a home by transfer

The main factor of uncertainty in the assignment of housing is the fact that in this case the buyer assumes not only the rights, but also the obligations of the seller under his DDU. For example, if the latter did not pay the entire agreed amount to the developer, the buyer will have to repay the rest of the debt. That is why lawyers advise buyers to request payment documents certifying financial settlements with the developer. The second most important risk factor is the reliability of the developer, because it may turn out that the PPT deal will be concluded, but the house will not be completed.

When buying housing through PPT, you need to understand that you are acquiring rights of claim that strictly correspond to those specified in the original DDU agreement that the seller entered into with the developer. As a rule, the amount paid by him to the developer is less than that paid to him by the buyer. Thus, if the buyer has litigation with the developer, the base price for determining fines and penalties will be the figure specified in the first DDU agreement.

Tax when registering a transfer transaction

Its payment is borne by the seller and amounts to 13% of the transaction size for citizens of the Russian Federation and 30% for non-residents. The fee is calculated on the amount representing the difference between the seller’s income and expenses, so the tax can be minimized by proving the existence of costs for purchasing housing under the DDU. For example, if an apartment was purchased from a developer (at the excavation stage) for 5 million rubles, and was subsequently transferred for 6 million, the seller pays tax on the difference of 1 million rubles. No taxes are imposed on the buyer of an apartment through PPT. Moreover, the costs of purchasing real estate can be used to obtain a tax deduction at the end of the year.

How much does the procedure cost?

The buyer pays possible expenses during assignment. The costs include the state duty (Article 333.33 of the Tax Code of the Russian Federation), the cost of the obtained right of claim to the apartment. The seller sets the amount independently.

A fixed tax payment of 13% of the funds received is levied on the seller. The interest is calculated from the difference in payments. For example, a citizen signed a DDU in the amount of 2 million rubles. The funds have been paid in full. Next, the man wants to sell the right for 3 million rubles. 13% is calculated from the difference equal to 1 million rubles.

The buyer fills out a declaration and pays the established percentage. Otherwise, liability arises in the form of financial penalties.