What is legal purity of real estate?
the Term “legal purity of real estate“ are used now quite often though appeared rather recently, originally - in the professional environment, among realtors. Often, addressing to real estate agency and demanding check of legal purity (and sometimes and demanding proofs of it from the seller), people insufficiently well understand what means this concept.
Ideally legal purity of concrete object means that the acquired or acquired real estate cannot be claimed at future owner by any persons on any legal basis. But the ideal even cannot be found here. It is possible to define degree of legal purity at full, comprehensive verification of documentation relating to this real estate.
That it is necessary to check
to check legal purity, it is necessary to pay attention to a number of the moments.
- of Information on the persons registered in this apartment at the place of residence (a constant registration) or stay (a temporary registration) earlier and now.
Should check information on the persons registered in the apartment at the place of residence or stay and as at the moment, and for the term much preceding the transaction. Often by preparation for the transaction it is possible to find information on the people who are written out in “anywhere“ or to fictitious addresses. For check of it it is necessary to study and compare with other information so-called archival (expanded), an extract from the house register. The same information can be duplicated by documentation from accounts department of ZhEK (the warrant, the copy financially - personal account).
of the Person, registered at the place of residence or stay in the apartment, by the present legislation even in case of its sale reserve a right of use of this living space until removal from the registration account and can assert the right through court. So, without having checked this information, perhaps, after a while you will share the area with the former resident or very long to pay for him utility payments. Besides, having checked this information in advance, it is possible to resolve extrajudicially an issue of a registration - an extract of the former owner and living in the acquired housing of persons.
- of the Transaction, earlier carried out with the acquired real estate .
If the apartment was not recently privatized or registered under the ownership after the end of construction (new building), and with it any transactions were carried out, then information on these transactions needs to be checked. So, during check of legal purity of one apartment in the Moscow region checking information that the contract of donation between strangers was the previous document on the apartment guarded. Usually (of course, not always) the housing is given each other by close or distant relatives (the grandmother to the granddaughter, the brother to the sister etc.) . When similar information is opened, there is a reason for additional check (as the transaction can be carried to the Russian Federation, feigned on Art. 170 of the Civil code).
After check of this option was opened final total number of transitions of the property right - 25 times! Most likely, the apartment (to be exact, its parts) was used for cashing in of military certificates or other fictitious operations (purchase and sale through donation, for example). You understand that it is absolutely impossible to check legality of such number of transactions therefore it was offered to refuse purchase of this option.
- Sellers of the apartment .
needs to receive and check information on owners of the apartment. Otherwise after the transaction such fact can be elicited, for example: the seller at the time of signing of the contract of purchase and sale did not realize the actions as it had a turbidity of mind (that is confirmed by the reference). Therefore according to St. 177 The civil code of the Russian Federation the transaction can be recognized as invalid.
in case of doubts in adequacy of the seller (and it is desirable always), is desirable to check this information, having taken or having asked references from a psychoneurological clinic (PND) and the narcological clinic (NC). At once I will make a reservation - finding of the owner on the account in any of these the organization for the law does not mean that he cannot carry out the transaction. Capacity of the person deprives only court!
If references show that the seller consists on the account in these organizations (or one of them), and you nevertheless want to buy this apartment, it is worth causing on the transaction for survey of the doctor of the corresponding qualification who will issue the reference that at the time of signing of the contract of people fully realized the actions.
Surely should be checked whether the seller in the registered marriage at the time of the transaction as the property acquired in marriage is the general property of spouses (The family code of the Russian Federation) consists and, getting the apartment where there is no spouse`s a consent, the buyer risks to have legal proceedings with the offended “half“ after a while.
If sells the apartment the authorized representative, it is necessary to verify carefully authenticity of the power of attorney, and also whether she is recalled (and whether the person is living, it given out). The powers delegated by proxy also need specification (perhaps, the owner authorized to sign only the contract of purchase and sale, and would like to receive money for the sold real estate itself). Pay attention to a condition of the person who issued the power of attorney (whether in normal mind - the specially power of attorney can be issued to hide a bad mental or physical condition of the seller).
Should check identity documents, for lack of inserts, blots, erasures, and also term of their action. Do not forget that the passport is valid before achievement of a certain age, after that it needs to be changed. If the transaction is carried out according to the invalid passport (it, unfortunately, met), then the risk of judicial proceedings increases.
- Documents on real estate .
Documents of title can be counterfeit too. It is necessary to pay attention to documents - the bases for emergence of the property right. Besides simple options: contracts of purchase and sale, exchange, donation - are also more exotic (so, difficult) - the contract of a rent, the certificate on the right for inheritance (under the law or the will), the judgment. All this
would have to be legally registered in establishment of justice on registration of the rights for real estate and transactions with it (in the past BTI, now - Head Department of Federal Registration Service on a certain region was engaged in registration). Documents should not contain erasures, and all corrections formalize the signature and the press of the notary or signatures of the parties (if the contract was made in a simple written form).
Documents - the bases sometimes contain certain conditions which performance for the parties is obligatory. At their non-performance the transaction can be terminated. Too it is necessary to pay attention to it and to demand confirmation of implementation of obligations (for example, it concerns contracts of a rent). Respectively, all figures and inscriptions on documents - the bases and certificates on the state registration of the right have to coincide.
of Circumstance, influencing preparation and passing of the transaction
- of Lack of restrictions and encumbrances .
Real estate can be burdened (pledge or arrest, for example). In this case the preparing transaction can collapse at a stage of registration of the rights. Information on existence of restrictions or encumbrances is in free access (the truth terms of its receiving are a little big) - in the Unified State Register of Rights on real estate (EGRP). Under the law “About the State Registration of the Rights for Real Estate and Transactions with It“ any interested person has the right to request this information, and the authority is obliged to provide it requested.
If passed transactions with the checked apartment till 1998 (the introduction of the law “About Registration of the Rights for Real Estate and Transactions with It“ in force and the beginning of the EGRP organization), information should be specified in the organizations registering transactions for that time (in Moscow it is BTI, DMZh). It is necessary to check information which is in this reference regarding compliance to the provided documents.
- Discrepancy of addresses on the acquired real estate .
This information should be checked also carefully, having compared information which is contained in references from BTI, ZhEK with documents of title. In Moscow cases of discrepancy of addresses quite often occur in the above-stated references, it is necessary to look for confirmations, receiving additional references from BTI and arguing with employees of ZhEK.
- Discrepancy of the areas of the apartment specified in various documents . Just recently there was a case when in documents of title there was one square, and in the reference from BTI absolutely another, not so coincident. The transaction had to be postponed and found out where the mistake was made and who will be able to correct it.
- Coincidence of numbers of rooms (concerns rooms in a communal flat) . Occasionally also such options meet: the person sells the room in a communal flat at No. 2. On financially - to personal account he also lives in it. And according to information from BTI number of the room differs (in a concrete case there was No. 1) though metric areas and coincide. In the described case business was in the wrong information in the reference from ZhEK which was taken for some reason into account in the zhilotdel during privatization and transferred the room of the neighbor to the possession of the seller.
What to check very difficult
Besides points considered above which are difficult for checking (to especially nonprofessional participant of the market), but it is rather real, there are some moments which check is difficult, and is more often impossible (more quite exotic, not often found cases). Let`s consider also them.
- of of Power of the notary at the time of the certificate of documents .
the Notary for any reason can be deprived of powers on commission of certain actions (the real case when such notary certified documents, took place in one of regions of Russia). The powers of attorney issued by the unauthorized notary will be invalid.
- Presence of the registered marriage at the seller at the time of acquisition of real estate . If the unlimited number of years got the apartment in marriage back, and sell now, after old divorce, the seller can consciously or irresponsibly hide this information. Especially on condition of obtaining the new passport in which the mark about marriage will not stand any more. The deceived former spouse can demand the share, and respectively the risk of judicial proceedings till a certain moment remains.
- Sale according to the old passport (allegedly lost) at the available new. The seller, besides irresponsibly, but it is more often conscious, can receive the new passport (in case of loss or theft), and to sell the apartment on old (found behind a bed back after obtaining the new passport). As the new document is valid, the transaction of alienation can be in a judicial proceeding terminated and the buyer will have problems again.
- can Almost not find presence of illegitimate children who can apply for an obligatory share in inheritance, or persons who can have the right for an obligatory share in inheritance (Art. 1149 of the Civil code of the Russian Federation). Upon purchase of the apartment with such (the certificate on the right for inheritance) documents of title the offended successor often manages to seize the share in inheritance. And, respectively, all will be returned back - and to the seller (or to sellers) new documents of title, with new division on shares will be given.
Thus, legal purity of residential real estate - very thin business, and an absolute guarantee to obtain very difficult here. But to reduce risk of approach of consequences, negative for the buyer, all are perhaps, having carefully and comprehensively checked all documents on real estate.