Rights of minors: guardianship and connivance of
Employees of agencies of guardianship and guardianship guard interests of little Russians at transactions with real estate. But now - only if those are owners. And transactions with housing in which children are “only“ registered were left without control at all - and make risk group.
of OOP on guards
Need to coordinate the actions at the solution of housing problem with agencies of guardianship and guardianship (OOP) often causes disappointment in reliable parents. Troublesome preparation of a volume package of documents for obtaining the corresponding permission even at the housing exchange significantly improving living conditions of the child irritates: protection of interests of their children unclear from whom turns into additional inconveniences!to
But not all children was lucky with parents. So it is difficult to overestimate a role of OOP. Under the pressure of severe reality and influence of fumes of wine other citizens “sell short“ with the living space, trying to deprive of children of so necessary “starting conditions“ in life. And someone, though unnoticed in friendship with a green serpent and conducting externally quite respectable life, differs in extreme social infantilism. Such subject can risk the future of the children (for the sake of their interests), entering doubtful projects. The case of the middle of 1990 - x is indicative years. The loving mother of two children, the intelligent librarian, believed in appeals of the apologist the MMM Leni Golubkow and was going to exchange the certain apartment for a room in a communal flat. The high-spiritual lady decided to enclose a difference in money in a financial pyramid, to sharply grow rich and buy two apartments instead of one. And terribly was upset when “the brilliant idea“ was not estimated at RONO (to which then functions of body of guardianship and guardianship were attributed), having exposed a barrier on the way of its phantasmagoric invention.
we will not polemize further about expediency of the existing order. Anyway families which should solve housing problem and where there are children - owners, should receive the allowing documents necessary at transactions with the real estate belonging to minors. Let`s remind the highlights important for this procedure and we will help to disseminate traditional delusions.
of the Classic of mistakes
the Most widespread mistake of parents - ignorance of age brackets of the concept “minor“, accurately certain in the Civil Code of the Russian Federation. Till 14 years children are considered as incapacitated. In their interests lawful representatives act (most often parents or trustees or trustees). They undersign for all documents instead of children. Young people of 14 - 18 years sign documents independently, but “from the written consent of lawful representatives“. At the same time from 14 years the teenager takes part in transactions, only if holds the passport (and the birth certificate).
By inertia behind coordination often address at the wrong door - to regional department of national education. But RONO resolved such issues till 1999. According to Art. 34 of the Civil Code of the Russian Federation now “agencies of guardianship and guardianship are local governments“. These functions are transferred in the municipalities (M) or districts (them, for example, in St. Petersburg more than hundred). The authorized inspector forms a package of documents and transfers him to the commission operating at municipality. A result of work of the commission is the order signed with chapter MO at which it has to be accurately specified, at what observance of conditions the transaction can be made.
Some think that coordination is necessary only at deterioration in living conditions. Actually any transaction infringing on interests of the minor will not be certified by the notary and registered in Federal registration service without the corresponding order. The ruling principle providing adoption of the positive decision: the share of property of the child should not decrease, and living conditions - to worsen.
it is necessary to Pass the commission on guardianship and guardianship in local government to the address of registration of the child even if the alienated real estate in which he is an owner is in other place.
the Popular belief
the Popular belief is confidence of some parents that permission of agencies of guardianship is required only in cases when the property of the child is alienated. Actually it concerns also some other situations in which the minor had or has any property rights, namely:
- at privatization of real estate in which it was earlier registered (especially - is included in the warrant), and nowadays removed from registration, permission to the child`s exception of structure of participants of privatization is required;
- at an exchange of municipal housing in which he lives;
- at its exception of structure of participants of privatization;
- at division of shares in the apartment privatized in the general joint property;
- at registration by parents of disclaimer of primary purchase of a share in the apartment where the child is a joint owner (including - in municipal).
Agencies of guardianship and guardianship carry out by
of the Stick a lot of work as a result of which the final document - the order of the head of MO in which it is accurately specified is born to wheels: under what conditions alienation of immovable property of the minor what share in what apartment should be got on his name instead of the sold living space can be made. OOP can prepare orders till 30 days from the moment of giving of completely created package of documents. At observance of such terms real estate objects in which children are involved automatically become extremely unwanted participants of the market. Too often drag on, and even the transactions stretched in time break at the last minute. Besides, not each seller of the apartment to which children as a result of the transaction drive, will agree to strive on representation of an impressive package of documents on the housing, to beforehand order references, to write some guarantee certificates.
To the conflicts and misunderstanding is led also by lack of the established standards on the basis of which it would be possible to judge whether the rights of the child are struck. Therefore each inspector preparing documents on the commission analyzes a situation owing to own understanding, based on personal, often subjective, a view of things. You do not hurry to accuse him of promotion of paradoxical requirements for the purpose of extortion. You do not know what he as obliges had to see enough! And having burned on milk, it and on water blows now. Therefore it is quiet razjya - a snita to it a situation, having beforehand prepared documents for justification of your address. Besides, the uniform rules approved for all municipalities do not exist - planning the transaction, in advance specify nuances of procedure and the list of the required documents in local administration of the concrete district.
Paradoxical result of legislative initiatives
So, changes in the law were a two-edged sword: without having simplified procedure for safe families with children at all - homeowners, they took away destiny of the minors living with parents “as registration“ in a shadow.
Adoption of the Federal law “About modification of part one of the Civil code of the Russian Federation“ cancelled norm according to which it was required to agree on any transaction with a living space where children were only registered with OOP earlier. But here paradox! Instead of being delighted to the come freedom, now already buyers and realtors on own initiative (or on the advice of the careful and thoughtful notary) quite often insist on that the planned transaction with housing in which the child “is registered“ was subjected to fixed consideration by experts of OOP.
Why? First of all entering of “improvements“ into the Civil code (Art. 292) affected only those cases when the real estate in which minor children of owners (and are registered is alienated if the housing parents was earlier acquired by different way, than through privatization).New changes in the legislation were not coordinated by
with the kept norms. Article 37 of the Civil Code of the Russian Federation remained former. And according to it any refusal of the rights of the minor as a result of actions of his lawful representatives has to be followed by control of agencies of guardianship and guardianship. As a result, many lawyers and notaries claim: article 292 entered a direct contradiction with article 37 of the same Civil Code of the Russian Federation and article 60 of the Family code.
It is about all transactions on real estate objects in which the children who are not owners are registered. Time participation of body of guardianship is not required, supervision of such transactions is not carried out now at all. So, it is possible to expect the following wave of abuses when children of socially defective parents (though those and are not deprived of the parental rights) remain on the street - parents will sell housing, will be written out with children from one room, and in another “will forget“ kids to register. And even nothing will be got in exchange, having lowered or “having lost“ money. Consequences are clear: the buyer will be involved in long judicial proceedings with not always predictable result.
If not in OOP, then where?
to neutralize consequences of legal confusion, many notaries developed and introduced the new mechanism of secure. Instead of an “illegal“ campaign to OOP sellers of real estate together with whom their minor children are registered, write the obligation at the notary. This notarial action is, in fact, the unilateral transaction involving certain legal consequences. An obligation essence - to re-register children to the new address of stay of parents, having provided them with normal conditions of accommodation. Only this way it is possible to count that children “will not be lost“ and further will not become a problem for the new owner of real estate. >
However it is rigid to p to oblige notaries follow this practice nobody can - innovations in the law gave to such statements the status voluntary, registering bodies do not demand them. Nevertheless, buyers of real estate “with the registered children“ should consider a possibility of registration of the similar document and to use it even if the notary to whose services they resort himself does not propose this measure.